Jefferson v. Police Officer, Cope Unit 34 et al
MEMORANDUM & ORDER granting in part and denying in part 12 Motion to Dismiss for Failure to State a Claim; For the foregoing reasons, Defendants' motion to dismiss the Complaint is GRANTED IN PART and DENIED IN PART. Plaintiff's claim against Police Officer Koenig is DISMISSED WITH PREJUDICE. Plaintiff's claim against Police Officer Dubriske is DISMISSED WITHOUT PREJUDICE and with leave to replead. If Plaintiff wishes to replead his claim against Officer Dubriske, he must do so within thirty (30) days of the date of this Memorandum and Order. If he fails to do so, his claim against Officer Dubriske will be dismissed with prejudice. Plaintiff's claim against the County with respect to the Complaint Policy is DISMISSE D WITH PREJUDICE. Plaintiff's remaining claims are against Officer Umbarila and against the County with respect to the Panhandling Policy. The Court sua sponte Orders that Jefferson v. Koenig, No. 15-CV-0544, Jefferson v. Salvatore, et. al., No . 15-CV-2303, Jefferson v. Loe, et. al., No. 15-CV-2304, and Jefferson v. Soe, et. al., No. 15-CV-2305, be CONSOLIDATED. All future filings are to be docketed in the earliest-filed case, Jefferson v. Koenig, No. 15-CV-0544. Upon consolidation, the Cl erk of the Court is directed to mark case numbers 15-CV-2303, 15-CV-2304, and 15-CV-2305, CLOSED. Given Plaintiffs' pro se status, the Court certifies pursuant to 28 U.S.C. § 1915(a)(3) that any appeal from this Memorandum and Order would n ot be taken in good faith and therefore forma pauperis status is DENIED for purposes of an appeal. The Clerk of the Court is directed to TERMINATE Police Officer Koenig as a defendant in this matter. The Clerk of the Court is further directed to mail a copy of this Memorandum and Order to the pro se Plaintiff. So Ordered by Judge Joanna Seybert on 1/15/2016. C/M; C/ECF (Valle, Christine)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
KEVIN L. JEFFERSON,
MEMORANDUM & ORDER
POLICE OFFICER KOENIG, COUNTY
OF SUFFOLK, POLICE OFFICER ANDREW
DUBRISKE, and POLICE OFFICER
Kevin L. Jefferson, pro se
8 Candlewood Road
N. Bay Shore, NY 11706
Brian C. Mitchell, Esq.
Suffolk County Attorney
100 Veterans Memorial Highway
P.O. Box 6100
Hauppauge, NY 11788
SEYBERT, District Judge:
Currently pending before the Court is defendants Police
Officer Koenig (“Officer Koenig”), County of Suffolk (“County”),
Police Officer Andrew Dubriske (“Officer Dubriske”), and Police
Officer Michael Umbarila’s (“Officer Umbarila”) (collectively,
“Defendants”) motion to dismiss the Complaint.
(Docket Entry 12.)
For the following reasons, Defendants’ motion
is GRANTED IN PART and DENIED IN PART.
Preliminarily, the Court notes that this action was
Officer Koenig, and the County.
(See Compl., Docket Entry 1.)
April 17, 2015, Defendants filed a letter identifying Officer
Dubriske and Officer Umbarila as the other officers involved in
the subject incident.
(Defs.’ Ltr., Docket Entry 7.)
April 20, 2015 Electronic Order terminated “Police Officer Cope
Unit 34” as a defendant and amended the caption to include Officers
Dubriske and Umbarila as defendants.
On or about September 24, 2014, Plaintiff was approached
by Officer Umbarila2 in front of the 7-11 store on Fifth Avenue in
Bay Shore, New York.
(Compl. at 3, ¶ 1.)
Officer Umbarila asked
Plaintiff if he had a place to stay that night and Plaintiff
(Compl. at 4, ¶¶ 2-3.)
The following facts are taken from the Complaint and are
presumed to be true for the purposes of this Memorandum and
The Complaint refers to “Police Officer Cope Unit 34”
throughout. However, as previously noted, “Officer Cope” was
terminated from this case after the County identified Officers
Umbarila and Dubriske as the other officers involved in the
events set forth in the Complaint. (Defs.’ Ltr.) Defendants’
memorandum of law specifically identifies Officer Umbarila as
the “Officer in Cope Unit 34 at the time of the claim.” (Defs.’
Br., Docket Entry 12-3, at 1, n.2.) For ease of reference, the
Court will refer to Officer Umbarila in all places where the
Complaint refers to “Police Officer Cope Unit 34.”
then asked Plaintiff where he was going and Plaintiff responded,
“nowhere right now.”
(Compl. at 4, ¶¶ 4-5.)
pointed toward the Third Precinct and said “I can give you a place
to sleep tonight right across the street.”
(Compl. at 4, ¶ 6.)
Plaintiff asked why he would need to sleep at the Third Precinct,
and Officer Umbarila responded, “because you’re panhandling.”
(Compl. at 4, ¶¶ 7-8.)
Officer Umbarila stated that panhandling
is a crime that Plaintiff could be arrested for; when Plaintiff
Plaintiff could either leave immediately or spend the rest of the
night in jail.
(Compl. at 4, ¶¶ 10- 11.)
that panhandling is not a crime and that he has an injunction
issued by the Eastern District prohibiting any Suffolk County
attempting to arrest anyone for panhandling.” (Compl. at 5, ¶ 12.)
Officer Umbarila again stated that Plaintiff could either leave
“immediately retreated” from the front of the 7-11 store.
at 5, ¶¶ 13-14.)
Plaintiff stood in front of the laundromat adjacent to
the 7-11 store and used his cell phone to place an emergency “911”
call to report Officer Umbarila’s threat of arrest.
(Compl. at 5,
Officer Umbarila was approximately fifteen to twenty feet
away and in earshot when Plaintiff placed his call.
(Compl. at 5,
intention of filing of a citizen’s complaint. (Compl. at 5, ¶ 15.)
Plaintiff spoke with Officer Koenig, who requested Plaintiff’s
(Compl. at 6, ¶¶ 16, 18.)
Plaintiff provided his
identification and attempted to explain the events surrounding
“repeatedly and consistently interrupted Plaintiff with matters
frustrate Plaintiff’s ability to file a citizen’s complaint.”
(Compl. at 6, ¶¶ 17, 19.)
Plaintiff demanded that he speak with
(Compl. at 6, ¶ 20.)
Officer Koenig advised that
Plaintiff would not be able to speak with a supervisory official
“unless and until” Koenig completed Plaintiff’s initial report.
(Compl. at 6, ¶ 21.)
Plaintiff requested a “cc” number but Koenig
advised that a “cc” number could not be assigned “unless and until”
he took Plaintiff’s complaint.
(Compl. at 6, ¶ 22.)
Officer Koenig continued to interrupt Plaintiff as he
tried to explain the basis of his citizen’s complaint.
7, ¶ 23.)
Officer Koenig refused to identify by name and verify
the badge number of Officer Umbarila.
(Compl. at 7, ¶ 24.)
Plaintiff made one more attempt to file his citizen’s complaint,
“but, again, Defendant Koenig continued to employ obstructionist
tactics thereby successfully frustrating Plaintiff’s efforts to
file a citizen’s complaint against [Officer Umbarila].”
at 7, ¶ 26.)
Plaintiff alleges that Officer Koenig’s interference
with his citizen’s complaint against Officer Umbarila is “the
second time that Defendant Koenig successfully prevented [him]
from filing a complaint against a fellow police officer for
threatening an unlawful arrest for loitering for the purpose of
begging (or panhandling).”
(Compl. at 7, ¶ 26, n.10.)
course of Plaintiff’s attempts to report the officer to 911,
Plaintiff was instructed to call the local precinct.
7-8, ¶ 26, n. 10.)
When Plaintiff called the precinct, he spoke
with Officer Koenig, who inquired as to Plaintiff’s location,
directed Plaintiff to remain on the telephone, and dispatched an
officer and a patrol unit to Plaintiff’s location where they
“effected an unlawful arrest against Plaintiff, charging Plaintiff
(Compl. at 7-8, ¶ 26, n. 10.)
Plaintiff commenced this action on February 4, 2015.
The Complaint appears to assert that Defendants violated 42 U.S.C.
§ 1983 and deprived Plaintiff of his First and Fourteenth Amendment
rights in connection with: (1) Officer Umbarila’s interference
with Plaintiff’s right to exercise free speech “by threatening to
arrest Plaintiff for ‘loitering for the purpose of begging’ (a.k.a.
panhandling) in purported violation of New York’s Penal Law §
240.35(1)”; and (2) Officer Koenig’s employment of “deliberate and
calculative tactics purposefully designed to frustrate Plaintiff’s
efforts to file a legitimate citizen’s complaint against a police
officer” in contravention of his rights to free speech, “petition
to redress grievances”, due process, and equal protection. (Compl.
The Complaint alleges that the actions of Officer
Umbarila and Officer Koenig were taken pursuant to the County’s
“wide spread practice, custom and usage” and in violation of a
preliminary injunction issued by this Court on April 23, 2012 (the
(Compl. at 3.)
(1) compensatory damages against Defendants in the amount of
(2) punitive damages against Officer Umbarila and Officer Koenig
in the amount of $100,000 for their willful violation of his
constitutional rights; and (3) a declaratory judgment stating
(a) Plaintiff has a constitutional right to file complaints against
law enforcement for “perceived misconduct” and (b) “that enforcing
or attempting to enforce New York Penal Law § 240.35(1) against
Plaintiff is a concrete violation of Plaintiff’s constitutional
(Compl. at 8-9.)
The Injunction Order
This Court’s Memorandum and Order dated April 23, 2012
Jefferson v. Rose, No. 12-CV-1334.
Supp. 2d 312 (E.D.N.Y. 2012).
See Jefferson v. Rose, 869 F.
In the Rose matter, Plaintiff
commenced an action against Officer Rose, unidentified officers,
and Suffolk County, asserting claims pursuant to the First, Fourth,
and Fourteenth Amendments and New York State law in connection
with his arrest for loitering for the purpose of begging.
869 F. Supp. 2d at 315. Specifically, on March 14, 2012, Plaintiff
was charged with violating New York Penal Law Section 240.35(1)
based on Officer Rose’s observation of Plaintiff “leaning into a
vehicle window stopped at the McDonalds drive thru and begging
complaining of the same.”
Plaintiff was held overnight and
arraigned the next morning for a violation of Section 240.35(1).
Section 240.35(1) provides that an individual is guilty
of loitering where he “‘[l]oiters, remains or wanders about in a
public place for the purpose of begging.’”
N.Y. Penal Law § 240.35(1)).
Id. at 314 (quoting
However, in 2010, the New York State
Legislature repealed Section 240.35(1) in the wake of state and
federal decisions holding the statute to be unconstitutional.
The Court granted Plaintiff’s motion for a preliminary
injunction, holding that Plaintiff claims had a likelihood of
success on the merits and that “threats of arrest or being told to
Id. at 316-18 (citation omitted).
constitute actual injury.”
Department from: “(1) enforcing, or threatening or attempting to
enforce, the now-repealed N.Y. Penal Law § 240.35(1) and (2)
Id. at 319.
However, the Court indicated that its
injunction did not extend to arrests for panhandling based on valid
provisions of the New York Penal Law.
Id. (citing New York Penal
Law Sections 240.20 (disorderly conduct), 240.26 (harassment in
the second degree), and 140.05 (trespass)).
Defendants’ Motion to Dismiss
On June 19, 2015, Defendants filed a motion to dismiss
the Complaint pursuant to Federal Rules of Procedure 12(c).
Defendants argue that Plaintiff’s claims against Officer
Umbarila should be dismissed because he had a “lawful basis” to
direct Plaintiff to vacate the premises and as a result, his
“underlying motive[s]” should not be examined.
(Defs.’ Br. at 3-
Specifically, Defendants allege that the manager of the 7-11
store requested that the police “assist in removing an unwanted
person” from his store.
(Defs.’ Br. at 3.)
dispute the particular words spoken by Officer Umbarila when he
directed Plaintiff to leave, they assert that even if Officer
Umbarila referenced panhandling, he would have had probable cause
to arrest Plaintiff for trespass if he refused to leave the
(Defs.’ Br. at 4.)
Furthermore, Defendants characterize Plaintiff’s claim
as an “allegation that Officer Umbarila violated [Plaintiff’s]
Plaintiff’s First Amendment Right to panhandle on public property
does not extend to private property.
(Defs.’ Br. at 6.)
end, Plaintiff “has not sufficiently stated that he was permitted
to engage in the alleged speech by the owner or manager of the
private property upon which he was located.”
entitled to qualified immunity.
(Defs.’ Br. at 6.)
(Defs.’ Br. at 5.)
against Officer Koenig should be dismissed because it does not
state a constitutional claim and does not “establish that similarly
(Defs.’ Br. at 7.)
Additionally, Defendants assert
that a civilian complaint to a police department does not implicate
Moreover, despite Plaintiff’s allegation that Officer Koenig’s
conduct was based on a widespread Suffolk County practice, the
Complaint does not allege that the Suffolk County Police Department
has implemented a “blanket policy” that precludes the filing of
civilian complaints. (Defs.’ Br. at 7.) To the extent Plaintiff’s
Plaintiff has failed to establish that he suffered actual harm or
that his speech was chilled.
(Defs.’ Br. at 8.)
Defendants further argue that Plaintiff cannot establish
an equal protection claim against Officer Koenig in the absence of
allegations that Plaintiff was treated differently than other
similarly situated individuals.
(Defs. Br. at 8-9.)
Defendants argue that the Complaint should be dismissed
against the County in the absence of an underlying violation of
Plaintiff’s constitutional rights.
(Defs.’ Br. at 9.)
the Complaint does not include allegations regarding a Suffolk
Plaintiff’s constitutional rights.
(Defs.’ Br. at 10.)
Defendants allege that Officer Dubriske “had contact
with the plaintiff at a time later in the evening/early morning on
the date of the complaint but the plaintiff has not alleged any
claims against this officer.”
(Defs.’ Br. at 1, n.2.)
argue that Plaintiff should not be permitted to amend the Complaint
to assert a claim against Officer Dubriske because he was not
present during the events described in the Complaint and Plaintiff
did not assert any claims against “John Doe” officers aside from
(Defs.’ Br. at 2-3.)
However, Defendants also
allege that Officr Dubriske “interacted with the plaintiff after
the plaintiff had left the precinct having spoken to Officer
(Defs.’ Br. at 10-11.)
Defendants’ motion seeks dismissal of the Complaint
pursuant to Federal Rule of Civil Procedure 12(c).
Notice of Mot., Docket Entry 12-1.)
However, Defendants have not
filed an Answer in this action; thus, a Rule 12(c) motion is not
appropriate at this juncture because the pleadings have not closed.
See FED. R. CIV. P. 12(c) (“After the pleadings are closed . . . a
party may move for judgment on the pleadings.”)
In light of
motion as seeking dismissal pursuant to Rule 12(b)(6). See Karedes
v. Ackerley Grp., Inc., 423 F.3d 107, 113 (2d Cir. 2005) (The
standard for evaluating a motion for judgment on the pleadings
pursuant to Rule 12(c) is the same as the standard for a motion to
dismiss under Rule 12(b).).
To withstand a motion to dismiss, a complaint must
contain factual allegations that “‘state a claim to relief that is
plausible on its face.’”
Ashcroft v. Iqbal, 556 U.S. 662, 678,
129 S. Ct. 1937, 1949, 173 L. Ed. 2d 868 (2009) (quoting Bell
Atlantic Corp. v. Twombly, 550 U.S. 544, 570, 127 S. Ct. 1955,
1974, 167 L. Ed. 2d 929 (2007)).
This plausibility standard is
not a “probability requirement” and requires “more than a sheer
possibility that a defendant has acted unlawfully.”
“[t]hreadbare recitals of the elements of a cause of action,
supported by mere conclusory statements, do not suffice.”
The Court’s plausibility determination is a “context-specific task
experience and common sense.”
Harris v. Mills, 572 F.3d 66, 72
(2d Cir. 2009) (internal quotation marks and citation omitted).
A complaint filed by a pro se litigant is to be construed
liberally and “however inartfully pleaded, must be held to less
stringent standards than formal pleadings drafted by lawyers.”
Erickson v. Pardus, 551 U.S. 89, 94, 127 S. Ct. 2197, 2200, 167 L.
Ed. 2d 1081 (2007).
See also Hiller v. Farmington Police Dep’t,
No. 12-CV-1139, 2015 WL 4619624, at *7 (D. Conn. July 31, 2015)
(Noting that the dismissal of a pro se complaint pursuant to Rule
12(b)(6) is not appropriate “unless it appears beyond doubt that
the plaintiff can prove no set of facts in support of his claim
which would entitle him to relief.”) (internal quotation marks and
Nevertheless, a pro se complaint must state a
plausible claim for relief and comply with the minimal pleading
standards set forth in Federal Rule of Civil Procedure 8.
2015 WL 4619624, at *7.
Generally, the Court’s consideration of a Rule 12(b)(6)
motion to dismiss is “limited to consideration of the Complaint
Dechberry v. N.Y. City Fire Dep’t, No. 14-CV-2130, 2015
complaint is deemed to include any written instrument attached to
it as an exhibit, materials incorporated in it by reference, and
‘integral’ to the complaint.”
Sira v. Morton, 380 F.3d 57, 67 (2d
Cir. 2004) (internal quotation marks and citations omitted.)
also FED. R. CIV. P. 10(c) (“A copy of a written instrument that is
an exhibit to a pleading is a part of the pleading for all
complaint in connection with a Rule 12(b)(6) motion, “the motion
must be treated as one for summary judgment under Rule 56 . . .
[and] [a]ll parties must be given a reasonable opportunity to
present all the material that is pertinent to the motion.”
R. CIV. P. 12(d).
The Court declines to consider matters outside of the
pleadings proffered by Defendants and will not convert the pending
affidavits and field reports proffered as exhibits to Defendants’
motion are neither incorporated by reference nor integral to the
Complaint and, accordingly, will not be considered in connection
with Defendants’ motion.
(See Defs.’ Mot. Ex. B-F, Docket Entries
12-5 through 12-9.)
To state a claim under Section 1983, the plaintiff must
allege: “(1) that the defendant acted under color of state law;
and (2) that as a result of the defendant’s actions, the plaintiff
suffered a deprivation of his or her rights or privileges as
secured by the Constitution or laws of the United States.” Barreto
v. Cty. of Suffolk, 762 F. Supp. 2d 482, 488 (E.D.N.Y. 2010)
Section 1983 does not create any substantive
rights but instead provides a vehicle to vindicate pre-existing
Defendants do not dispute that Officers
Umbarila and Koenig were acting under color of state law.
generally Defs.’ Br.)
construed as a cause of action for First Amendment retaliation-namely,
because he was exercising his First Amendment right to panhandle.
See, e.g., Louis v. Metro. Transit Auth., --- F. Supp. 3d ----,
plaintiff’s claim that the bus driver removed her from the bus
because she was wearing religious attire as a First Amendment
retaliation claim by demonstrating: “(1) he has a right protected
by the First Amendment; (2) the defendant’s actions were motivated
or substantially caused by his exercise of that right; and (3) the
defendant’s actions caused him some injury.”
Dorsett v. Cty. of
Nassau, 732 F.3d 157, 160 (2d Cir. 2013).
plaintiff must establish either that the government retaliation
“adversely affected” his speech or that he has suffered another
Id. (Noting that “chilled speech is not the sine
qua non of a First Amendment claim.”).
However, “[e]ven threats
of arrest or being told to ‘move along’ by the police violate
Plaintiff’s rights and constitute actual injury.”
Rose, 869 F.
Supp. 2d at 318 (citing Loper v. N.Y. City Police Dep’t, 802 F.
Supp. 1029, 1034 (S.D.N.Y. 1992), aff’d, 999 F.2d 699 (2d Cir.
Construing the pro se Complaint liberally, the Court
finds that Plaintiff has stated a claim against Officer Umbarila
for First Amendment retaliation.
First, Plaintiff’s panhandling
falls under the protections of the First Amendment.
See Rose, 869
F. Supp. 2d at 317 (stating that New York state and federal courts
have held that panhandling is constitutionally protected speech).
Second, the Complaint plausibly asserts that Officer Umbarila’s
actions were motivated by Plaintiff’s exercise of his right to
panhandle by alleging that Officer Umbarila threatened Plaintiff
with arrest and expressly stated “panhandling is a crime and I can
arrest you for it.”
(Compl. at 4, ¶¶ 8-11.)
Umbarila’s threat of arrest constitutes an actual injury.
Rose, 869 F. Supp. 2d at 318.
Defendants’ arguments in support of the dismissal of
this claim are not compelling.
Defendants’ assertion that Officer
Umbarila’s “underlying motive” should not be examined due to his
objectively lawful basis for directing Plaintiff to leave relies
upon the allegation that the 7-11 store owner asked Officer
(Defs.’ Br. at 3-4.) However, as previously noted, this allegation
is squarely outside of the Complaint and accordingly will not be
considered by the Court in connection with Defendants’ Motion,
which has been construed as a Rule 12(b)(6) motion. See Dechberry,
2015 WL 4878460, at *1 (The Court’s consideration of a Rule
12(b)(6) motion is generally limited to the consideration of the
Thus, Defendants’ assertion that Officer
Umbarila’s actions had an “objectively lawful basis” is without
Additionally, the Court is not persuaded that dismissal
is warranted because “[t]he claimed right to panhandle, while
automatically extend to expressions on private property.”
Br. at 6.) The Court acknowledges that “owners of private property
419 (S.D.N.Y. 2013).
Rodriguez v. Winski, 973 F. Supp. 2d 411,
However, the Complaint alleges that the
exchange between Plaintiff and Officer Umbarila occurred “in front
of the 7-11 store.”
(Compl. at 3-4, ¶ 1 (emphasis added).)
allegation may be liberally construed to assert that the subject
exchange took place in a public area in front of the store rather
than inside of the privately owned store.
See, e.g., Frisby v.
Schultz, 487 U.S. 474, 480-81, 108 S. Ct. 2495, 2500, 101 L. Ed.
2d 420 (1988) (“[O]ur decisions identifying public streets and
sidewalks as traditional public fora are . . . [in] recognition
that [w]herever the title of streets and parks may rest, they have
immemorially been held in trust for the use of the public.”)
(internal quotation marks and citation omitted; third alteration
Officer Umbarila’s qualified immunity defense is premature at this
(Defs. Br. at 5.)
A government official named as a
defendant in his individual capacity will be awarded qualified
immunity where: (1) federal law does not prohibit the conduct
attributed to the defendant; or (2) if the defendant’s conduct was
prohibited, “the plaintiff’s right not to be subjected to such
conduct by the defendant was not clearly established at the time
it occurred”; or (3) the defendant’s conduct was objectively
legally reasonable based on the clearly established law at the
time the actions were taken.
Manganiello v. City of N.Y., 612
generally premature to address the defense of qualified immunity
in a motion to dismiss.’”
Maloney v. Cty. of Nassau, 623 F. Supp.
2d 277, 292 (E.D.N.Y. 2007) (quoting Bernstein v. City of N.Y.,
No. 06-CV-0895, 2007 WL 1573910, at *9 (S.D.N.Y. May 24, 2007)).
Defendants argue that Officer Umbarila is entitled to qualified
immunity because “it was not objectively unreasonable for [Officer
Umbarila] to rely upon the request of the manager of the 7-11 store
in advising the plaintiff to leave the premises.”
(Defs.’ Br. at
As previously noted, this allegation is outside of the
Complaint and will not be considered by this Court.
is clear that additional fact discovery is needed to address the
issue of qualified immunity.
Accordingly, Defendants’ motion to dismiss Plaintiff’s
claim against Officer Umbarila is DENIED.
constitutional rights to free speech, “petition for redress of
grievances”, due process, and equal protection by frustrating his
efforts to file a citizen’s complaint against a police office.
(Compl. at 3.)
However, “[n]o right, privilege or immunity
guaranteed by the Constitution or the laws of the United States is
Johnson v. Police Officer #17969, No. 99-CV-3964, 2000 WL 1877090,
at *6 (S.D.N.Y. Dec. 27, 2000), aff’d, 19 F. App’x 16 (2d Cir.
Mitchell, 390 F. Supp. 2d 237, 245; 250 (E.D.N.Y. 2005) (Holding
that the pro se plaintiff failed to state a claim against a
detective who took plaintiff’s statement regarding her complaint
Accordingly, Plaintiff’s claims against Officer Koenig
practice is to grant leave to amend the complaint when grating a
motion to dismiss, “a district court has the discretion to deny
leave to amend where there is no indication from a liberal reading
of the complaint that a valid claim might be stated.”
Cty. of Nassau, 180 F.3d 42, 53 (2d Cir. 1999); Perri v. Bloomberg,
No. 11-CV-2646, 2012 WL 3307013, at *4 (E.D.N.Y. Aug. 13, 2012).
The Court finds that leave to replead with respect to Plaintiff’s
claims against Officer Koenig would be futile in light of the
absence of any constitutional rights regarding the filing of
The Complaint only asserts allegations against “P.O.
Cope” (now identified as Officer Umbarila), Officer Koenig, and
(See generally Compl.)
Although Defendants did not
object to the caption being amended to include Officer Dubriske as
a defendant (see Defs.’ Ltr.), Defendants allege that the Complaint
does not contain any claims against Officer Dubriske and that
Plaintiff should not be permitted to file an amended complaint
asserting claims against this defendant.
In light of Plaintiff’s
pro se status and Defendants’ prior consent to the caption being
amended to include Officer Dubriske, Plaintiff’s claims against
Officer Dubriske are DISMISSED WITHOUT PREJUDICE and with leave to
See Hayden, 180 F.3d at 53 (“[w]hen a motion to dismiss
is granted, the usual practice is to grant leave to amend the
complaint”); see also FED. R. CIV. P. 15(a)(2) (“[t]he court should
freely give leave [to amend] when justice so requires”).
A municipality will not be held liable pursuant to
Section 1983 based on a theory of respondeat superior for their
Bonds v. Suffolk Cty. Sheriff’s Dep’t, No. 05-
CV-3109, 2006 WL 3681206, at *2 (E.D.N.Y. Dec. 5, 2006).
Monell v. Dep’t of Soc. Servs., 436 U.S. 658, 691, 98 S. Ct. 2018,
2036, 56 L. Ed. 2d 611 (1978).
However, a municipality may be
liable under Section 1983 “for actions taken pursuant to official
municipal policy that cause constitutional torts.”
Nassau Cty., 349 F. Supp. 2d 540, 549 (E.D.N.Y. 2004) (internal
quotation marks and citation omitted). Thus, a plaintiff who files
a Section 1983 action against a municipality must plead the
following elements: “(1) an official policy or custom that (2)
custom by alleging: (1) the municipality has officially endorsed
a formal policy; (2) municipal officials have taken actions or
caused the alleged violation of civil rights; (3) the existence of
considered a “custom of which constructive knowledge can be implied
on the part of policymaking officials”; or (4) the policymakers’
“amounting to ‘deliberate indifference’ to the rights of those who
come in contact with the municipal employees.”
3681206, at *2 (citations omitted).
Bonds, 2006 WL
While a municipal policy or
supervisory municipal officials,” one incident that involves an
employee who is below the policymaking level generally will not
establish an inference of a municipal policy.
Construing the Complaint liberally, Plaintiff alleges
that the County has implemented a municipal policy of threatening
to arrest individuals for panhandling (the “Panhandling Policy”),
which has resulted in the denial of Plaintiff’s right to free
(Compl. at 3.)
The Complaint alleges that the prior
incident that formed the basis for Jefferson v. Rose involved a
Suffolk County police officer’s threat to arrest Plaintiff for
(Compl. at 7-9, ¶ 26 n.10.)
Thus, there has been
more than one threat to arrest Plaintiff for panhandling, which
suffices to plead that the Panhandling Policy is “persistent and
Additionally, the existence of the Injunction, which
prohibits any Suffolk County police officer from threatening to
arrest individuals for panhandling, establishes that policymaking
officials, at the very least, have constructive knowledge of the
Accordingly, the branch of Defendants’ motion seeking to dismiss
Plaintiff’s Section 1983 claim against the County based on the
Panhandling Policy’s interference with his First Amendment rights
See Bonds, 2006 WL 3681206, at *2 (a municipal policy
is established based on allegations of the existence of a practice
sufficiently “persistent and widespread” to be considered a custom
of which policymaking officials have constructive knowledge).
The Complaint can also be liberally construed to assert
against police officers (the “Complaint Policy”) and that this
policy has resulted in the denial of Plaintiff’s “rights to free
speech, petition for redress of grievances, Due Process and Equal
Protection of Law.”
(See Compl. at 3.)
However, a plaintiff’s
claim for municipal liability under Section 1983 must fail in the
Johnson v. City of N.Y., 551 F. App’x 14, 15 (2d Cir. 2014).
Accord Louis, 2015 WL 6814739, at *11.
But see Barrett v. Orange
(“[M]unicipal liability for constitutional injuries may be found
to exist even in the absence of individual liability, at least so
long as the injuries complained of are not solely attributable to
the actions of named individual defendants.”)
As set forth above,
deprivation regarding Officer Koenig’s alleged frustration of
Plaintiff’s ability to file a civilian complaint.
It follows that
Plaintiff is foreclosed from asserting a claim for municipal
liability under Section 1983 with respect to the Complaint Policy.
Accordingly, Plaintiff’s Section 1983 claim against the County
constitutional rights is DISMISSED WITH PREJUDICE based on the
underlying constitutional deprivation.
Presently pending before the Court are three related
actions commenced by the Plaintiff.
In Jefferson v. Salvatore,
against two Suffolk County police officers and the County under
Section 1983 and asserted a deprivation of his First and Fourteenth
Amendment rights based on the officers’ direction that he “keep it
moving” after an exchange about panhandling and the County’s
(See Compl., Salvatore, Docket Entry 1.)
Jefferson v. Loe, et. al., No. 15-CV-2304 (“Loe”), Plaintiff filed
suit against a Suffolk County deputy sheriff and the Sheriff of
Suffolk County under Section 1983 and asserted a deprivation of
his First, Fourth, and Fourteenth Amendment rights based on the
deputy sheriff’s threat to arrest him for panhandling.
Compl., Loe, Docket Entry 1.)
In Jefferson v. Soe, et. al.,
No. 15-CV-2305 (“Soe”), Plaintiff filed suit against a Suffolk
County police officer and the County of Suffolk under Section 1983
and asserted a violation of his First, Fourth, and Fourteenth
Amendment rights based on the police officer’s threat to arrest
Plaintiff for panhandling and the County’s Panhandling Policy.
(See Compl., Soe, Docket Entry 1.)
The Court has reviewed the dockets in this matter and
the Salvatore, Loe, and Soe matters and the complaints involve
claims arising out of the same general set of facts.
County is named as a defendant in three of the four suits and the
Thus, the Court finds that consolidation is warranted
to avoid the duplicative and unnecessary use of judicial resources.
See FED. R. CIV. P. 42(a)(2).
See also Johnson v. Celotex Corp.,
899 F.2d 1281, 1284-85 (2d Cir. 1990) (“The trial court has broad
discretion to determine whether consolidation is appropriate . .
. [and] courts have taken the view that considerations of judicial
economy favor consolidation.”) (citations omitted).
As such, the
Court sua sponte ORDERS that Jefferson v. Koenig, No. 15-CV-0544,
Jefferson v. Salvatore, et. al., No. 15-CV-2303, Jefferson v. Loe,
et. al., No. 15-CV-2304, and Jefferson v. Soe, et. al., No. 15CV-2305, be CONSOLIDATED.
All future filings are to be docketed
in the earliest-filed case, Jefferson v. Koenig, No. 15-CV-0544.
For the foregoing reasons, Defendants’ motion to dismiss
the Complaint is GRANTED IN PART and DENIED IN PART.
claim against Police Officer Koenig is DISMISSED WITH PREJUDICE.
Plaintiff’s claim against Police Officer Dubriske is DISMISSED
WITHOUT PREJUDICE and with leave to replead.
If Plaintiff wishes
to replead his claim against Officer Dubriske, he must do so within
thirty (30) days of the date of this Memorandum and Order.
dismissed with prejudice.
Plaintiff’s claim against the County
with respect to the Complaint Policy is DISMISSED WITH PREJUDICE.
Plaintiff’s remaining claims are against Officer Umbarila and
against the County with respect to the Panhandling Policy.
The Court sua sponte Orders that Jefferson v. Koenig,
No. 15-CV-0544, Jefferson v. Salvatore, et. al., No. 15-CV-2303,
Jefferson v. Loe, et. al., No. 15-CV-2304, and Jefferson v. Soe,
et. al., No. 15-CV-2305, be CONSOLIDATED.
All future filings are
to be docketed in the earliest-filed case, Jefferson v. Koenig,
Upon consolidation, the Clerk of the Court is
Given Plaintiffs’ pro se status, the Court certifies
pursuant to 28 U.S.C. § 1915(a)(3) that any appeal from this
Memorandum and Order would not be taken in good faith and therefore
in forma pauperis status is DENIED for purposes of an appeal.
Coppedge v. United States, 369 U.S. 438, 444–45, 82 S. Ct. 917,
8 L. Ed. 2d 21 (1962).
The Clerk of the Court is directed to TERMINATE Police
Officer Koenig as a defendant in this matter.
The Clerk of the
Court is further directed to mail a copy of this Memorandum and
Order to the pro se Plaintiff.
/s/ JOANNA SEYBERT______
Joanna Seybert, U.S.D.J.
15 , 2016
Central Islip, New York
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