Steptoe v. The City of Syracuse et al

Filing 8

DECISION AND ORDER - the clerk shall issue summonses and forward them, along with copies of the amended complaint and packets containing General Order 25, to the United States Marshal for service upon the named defendants. The clerk shall forward a copy of the summons, amended complaint, and this Decision and Order by mail to the Office of the Corporation Counsel for the City of Syracuse. A Rule 16 Conference will be scheduled and served upon parties. Signed by Magistrate Judge David E. Peebles on 3/25/10. Plaintiff served via USPS.(mnm)

IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF NEW YORK

LE CHRISTIAN STEPTOE, Plaintiff,

-v.-

5:09-CV-1132 (NPM)(DEP)

THE CITY OF SYRACUSE (OFFICER PAM OTIS AND DON GROTH) and THE GENESEE GRANDE HOTEL, Defendants.

APPEARANCES: LeChristian Steptoe Plaintiff, pro se 1108 East Genesee Street Apt. 302 Syracuse New York 13210 DAVID E. PEEBLES U.S. MAGISTRATE JUDGE DECISION AND ORDER I. BACKGROUND The clerk has sent to the court for review an amended complaint submitted for filing by plaintiff LeChristian Steptoe. Dkt. No. 7. Accompanied by an application to proceed in forma pauperis, on October
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8, 2009 plaintiff originally filed a pro se complaint pursuant to 42 U.S.C. § 1983, naming two defendants, the Genesee Grande Hotel ("Genesee Grande" or "Hotel") and the City of Syracuse, and alleging violations of his constitutional rights arising out of an incident that occurred on September 22, 2009 at the Hotel and his subsequent arrest for trespass. See Dkt. Nos. 1 and 2. After reviewing plaintiff's initial filings, though granting plaintiff's application to proceed in forma pauperis, the court dismissed the complaint in accordance with 28 U.S.C. § 1915(e)(2)(B), which requires that when a plaintiff seeks to proceed in forma pauperis, the court must dismiss the case if it determines, among other things, that the action is frivolous or malicious or fails to state a claim on which relief may be granted. See Decision and Order, dated Nov. 17, 2009 (Dkt. No. 6). In so doing, the court determined that plaintiff had failed to state a claim under section 1983 against the Genesee Grande because he had failed to allege any nexus between the State of New York and the challenged actions of the Hotel and, to the extent that he was trying to make a claim for conspiracy, he had failed to plead specific facts showing an agreement and concerted action between the Hotel and the City of Syracuse. With regard to the City of Syracuse, the court found the plaintiff's complaint

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insufficient insofar as his claims were premised solely upon a theory of respondeat superior. In deference to plaintiff's pro se status, however, the dismissal of the complaint was with leave to replead. II. DISCUSSION In addition to the City of Syracuse, the plaintiff's amended complaint now names two individual officers employed by the City of Syracuse Police Department, Pam Otis and Don Groth, alleging that both of those defendants were also employed by the Hotel and working as part-time security officers at the time of the alleged violations of his constitutional rights. It is well-established that persons may not be held liable under section 1983 unless it can be established that they have acted under the color of state law. See, e.g., Rounseville v. Zahl, 13 F.3d 625 (2d Cir. 1994) (noting state action requirement under § 1983); Wise v. Battistoni, 92-Civ-4288, 1992 WL 380914, *1 (S.D.N.Y. Dec. 10, 1992) (same) (citations omitted).1 The courts frequently have been called upon to interpret the term "under color of law" in the context of off-duty police officers. Claudio v. Sawyer, No. 08 Civ. 8994, 2009 WL 4929260, at * 3
Copies of all unreported decisions cited in this document have been appended for the convenience of the pro se plaintiff. 3
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(S.D.N.Y. Dec. 23, 2009) (citing and quoting Pritchell v. Callan, 13 F.3d 545, 547 (2d Cir. 1994)) (other citations omitted). The relevant inquiry is whether the officer "albeit off-duty, nonetheless invokes the real or apparent power of the police department [or] perform[s] duties generally prescribed for police officers." Pritchell, 13. F.3d at 548 (citations omitted). In making its analysis, the court must look to the totality of circumstances surrounding the officer's acts, including whether the officer identified himself or herself as a police officer; whether the plaintiff was aware that the defendants were police officers; whether the defendants detained or questioned the plaintiff in the scope of employment as police officers; and, if the defendants drew their firearms or arrested the plaintiff. Claudio, 2009 WL 4929260, at * 3; see also, Dean v. City of Buffalo, 579 F. Supp.2d 391, 406 (W.D.N.Y. 2008). The amended complaint alleges that while working for the Hotel defendants Otis and Groth, on separate occasions, wearing their official police uniforms, violated plaintiff's constitutional rights. Plaintiff alleges that the City of Syracuse allowed its police officers to engage in such secondary employment and that it failed to properly train and supervise the individual defendants. Liberally construing plaintiff's pro se complaint,

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as the court must at this juncture, Barnum v. Clark, 927 F.2d 698, 702 (2d Cir. 1991), the amended complaint can be interpreted to allege that at the time of the alleged constitutional violations Otis and Groth were acting pursuant to their authority as City of Syracuse Police officers in accordance with an official policy or custom, thereby sufficiently alleging claims against these defendants under section 1983. With respect to the Genesee Grande, "a private employer may be held liable under § 1983 for the constitutional torts of its employees where the plaintiff proves that the employee acted pursuant to the employer's official policy of some nature." Martin v. Lociccero, 917 F. Supp. 178, 184 (W.D.N.Y. 1995) (citing Rojas v. Alexander's Dep't Store, Inc., 924 F.2d 406, 408-09 (2d Cir. 1990)). A private employer may also be liable where it was jointly engaged with state officials in the alleged unconstitutional conduct. Martin, 917 F. Supp. at 184 (citing Lee v. Town of Estes Park, Colorado v. Sparks, 820 F.2d 1112, 1114 (10th Cir. 1987)); see also Bang v. Utopia Restaurant, 923 F. Supp. 46, 49 (S.D.N.Y. 1996) ("To establish joint action, a plaintiff must show that the private citizen and the state official shared a common unlawful goal; the true state actor and the jointly acting private party must agree to deprive the plaintiff the rights

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guaranteed by federal law."). The amended complaint alleges that the Hotel enlisted the state's assistance by hiring City of Syracuse police officers and that it instructed these individuals to violate plaintiff's constitutional rights. Broadly construed, plaintiff's allegations are sufficient to state a claim under section 1983 against the Genesee Grande. III. CONCLUSION After carefully reviewing plaintiff's amended complaint and the applicable law, without ruling on the merits of plaintiff's claims, the court concludes that plaintiff has sufficiently stated a claim against defendants to avoid dismissal pursuant to 28 U.S.C. § 1915(e)(2)(B). WHEREFORE, it is hereby ORDERED, that the clerk shall issue summonses and forward them, along with copies of the amended complaint and packets containing General Order 25, which sets forth the Civil Case Management Plan used by the Northern District of New York, to the United States Marshal for service upon the named defendants. The clerk shall forward a copy of the summons and amended complaint by mail to the Office of the Corporation Counsel for the City of Syracuse together with a copy of this decision and

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order; and it is further ORDERED, that a formal response to plaintiff's amended complaint be filed by the defendants or their counsel as provided for in the Federal Rules of Civil Procedure subsequent to service of process on the defendants; and it is further ORDERED, that the clerk is directed to schedule a Rule 16 conference; and it is further ORDERED, that any paper sent by a party to the court or the clerk shall be accompanied by a certificate setting forth the date a true and correct copy of it was mailed to all opposing parties or their counsel. Any letter or other document received by the clerk or the court which does not include a certificate of service which clearly states that an identical copy was served upon all opposing parties or their attorneys is to be returned, without processing, by the clerk. Plaintiff shall also comply with any requests by the clerk's office for any documents that are necessary to maintain this action. All motions shall comply with the local rules of practice of the Northern District; and it is further ORDERED, that the clerk serve a copy of this order and General Order 25 on plaintiff by regular mail.
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Dated:

March 25, 2010

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Page 1 N o t Reported in F.Supp., 1992 W L 380914 (S.D.N.Y.) ( C ite as: 1992 W L 380914 (S.D.N.Y.))

O n ly the W e s tla w citation is currently available.

U n ite d States District Court, S.D. New York. A n th o n y F. W I S E , Plaintiff, v. J o h n BATTISTONI, et al., Defendants. N o . 92 CIV. 4288 (PKL).

fir m of Schisler, Sall & Schindler represented plaintiff in s o m e or all of the Family Court proceedings. Magistrate J u d g e Roberts recommended that the complaint be d is m is s e d as against Schindler because the complaint fa ile d to allege that the defendant acted under color of a s ta te "statute, ordinance, regulation, custom, or usage," as r e q u i r e d b y se c t i o n 1 9 8 3 . See R e p o r t and R e c o m m e n d a tio n at 3. Plaintiff filed timely objections to th e Report and Recommendation, arguing that:

D e c . 10, 1992.

[ T ] h is defendant had a duty to act and he breached that d u ty when he failed to act.

M E M O R A N D U M ORDER

....

L E I S U R E , District Judge.

[ H ] e breached that duty to perform in a professional m anner.

* 1 This is a civil rights action brought pursuant to 42 U .S .C . § 1983 by Anthony F. W is e on behalf of his d a u g h te r , W a k e v a T. W is e , who is a minor. Plaintiff is a p p e a r in g in this action pro se. This matter was referred to th e Honorable Kathleen A. Roberts, United States M a g is tr a te Judge, Southern District of New York, on June 1 2 , 1992, for general pre-trial supervision and resolution o f dispositive motions. By a Report and Recommendation d a te d November 2, 1992, Magistrate Judge Roberts r e c o m m e n d e d that the Court grant the motion of defendant R u s s e ll A. Schindler, Esq., for an order dismissing the c o m p la in t as to him pursuant to Rule 12(b)(6) of the F e d e r a l Rules of Civil Procedure, on the grounds that the c o m p la in t fails to state a cause of action upon which relief m a y be granted.

S e e Plaintiff's Objections to Report and Recommendation a t 2.

T h is action is based on actions taken by the Dutchess C o u n ty , New York, Department of Social Services and p r o c e e d in g s in the Family Court of Dutchess County that r e s u lte d in the adoption of plaintiff's daughter by d e fe n d a n ts Jacob and Mamie Hill and her eventual p la c e m e n t at the Hillcrest Educational Center in Pittsfield, M a s s a c h u s e tts . Although the complaint contains no a lle g a tio n s against Schindler, documents annexed to the c o m p la in t indicate that Schindler or one his partners in the © 2010 Thomson Reuters. No Claim to Orig. US Gov. W o rks.

I t is well settled that an attorney's representation of a party to a court proceeding does not satisfy the section 1983 r e q u ir e m e n t that the defendant is alleged to have acted u n d e r color of state law absent special circumstances s u g g e s tin g concert of action between the attorney and a s ta te actor. This principle applies even where the attorney w a s appointed by the court. See, e.g., Polk County v. D o d s o n , 454 U.S. 312, 325 (1981); Dahlberg v. Becker, 7 4 8 F.2d 85 (2d Cir.1984), cert. denied,470 U.S. 1084 ( 1 9 8 5 ) . Thus, the complaint can survive a motion to d is m is s pursuant to Rule 12(b)(6) only if it alleges a c o n s p ir a c y including the private actor and state actors s u c h that "the conduct allegedly causing the deprivation of a federal right [can] be fairly attributable to the State." L u g a a r v. Edmondson Oil Co., 457 U.S. 922, 937 (1982); s e e also National Collegiate Athletic Ass'n v. Tarkanian, 4 8 8 U.S. 179, 199 (1988); Zemsky v. City of New York, 8 2 1 F.2d 148, 151-52 (2d Cir.1987) (conclusory a lle g a tio n s of conspiracy insufficient), cert. denied,484 U .S . 965 (1987); Conway v. Village of Mount Kisco, 750 F .2 d 205, 214 n. 12 (2d Cir.1984), reaff'd, 758 F.2d 46

Page 2 N o t Reported in F.Supp., 1992 W L 380914 (S.D.N.Y.) ( C ite as: 1992 W L 380914 (S.D.N.Y.))

( 2 d Cir.1985), cert. dismissed,479 U.S. 84 (1986).

c o m p la in t with respect to Russell A. Schindler, Esq., w ith in forty-five (45) days.

* 2 As noted above, the complaint in this action contains n o allegations against defendant Schindler. The Court is c o g n iz a n t of the principle that the Second Circuit " o r d in a r ily require[s] the district courts to give substantial le e w a y to pro se litigants." Gomes v. Avco Corp., 964 F.2d 1 3 3 0 , 1335 (2d Cir.1992); accord Haines v. Kerner, 404 U .S . 519 (1972); LaBounty v. Adler, 933 F.2d 121, 122 ( 2 d Cir.1991). However, even affording a liberal reading to the complaint and the exhibits attached thereto, the C o u r t can discern no allegation that Schindler acted under c o lo r of state law. As noted by M a g is tr a te Judge Roberts:

S O ORDERED

S .D .N .Y .,1 9 9 2 . W is e v. Battistoni N o t Reported in F.Supp., 1992 W L 380914 (S.D.N.Y.)

E N D OF DOCUMENT

I t is well established that "where the complaint names a d e fe n d a n t in the caption but contains no allegations in d ic a tin g how the defendant violated the law or injured th e plaintiff, a motion to dismiss the complaint in regard to that defendant should be granted." Morabito v. Blum, 5 2 8 F.Supp. 252, 262 (S.D.N.Y.1981); see also Gutierrez v . Vergari, 499 F.Supp. 1040, 1052 (S.D.N.Y.1980); C h ild v. Beame, 417 F.Supp. 1023, 1025 (S.D.N.Y.1976).

S e e Report and Recommendation at 3. Further, the Second C ir c u it has repeatedly reaffirmed the principle that "the c o m p la in t must allege facts demonstrating that the private e n tity acted in concert with the state actor to commit an u n c o n s titu tio n a l act." Spear v. Town of West Hartford, 9 5 4 F.2d 63, 68 (2d Cir.1992); accord Zemsky, 821 F.2d a t 151-52. Plaintiff's failure to allege facts demonstrating th a t defendant Schindler acted under color of state law is a defect compelling dismissal of the complaint.

C O N C L U S IO N

F o r the foregoing reasons, the Court hereby adopts in w h o le the Report and Recommendation of the Honorable K a th le e n A. Roberts, United States Magistrate Judge, S o u th e r n District of New York, dated November 2, 1992, a n d grants the motion of defendant Russell A. Schindler, E s q . , for an order pursuant to Fed.R.Civ.P. 12(b)(6) d is m is s in g the complaint on the grounds that the complaint fa ils to state a cause of action upon which relief may be g r a n te d . Plaintiff is granted leave to file an amended © 2010 Thomson Reuters. No Claim to Orig. US Gov. W o rks.

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U n ite d States District Court, S . D . New York. L is a CLAUDIO, as Administrator of the Estate of J a y s o n Tirado, deceased, Jaylene Tirado, an infant by h e r mother and natural guardian, Lisa Claudio, and Irene T ir a d o , Plaintiffs, v. S e a n SAW Y E R and The City of New York, Defendants. N o . 08 Civ. 8994(DC).

c o m p la in e d of must have deprived a person of rights, p r iv ile g e s , or immunities secured by the Constitution or la w s of the United States. 42 U.S.C.A. § 1983.

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D e c . 23, 2009.

B a c k g r o u n d : Family of motorist shot and killed by o ff-d u ty police officer brought § 1983 action against o ffic e r and city, alleging officer was acting in his official c a p a c ity during shooting, that city was liable under M o n e ll, and that city was liable for negligence under New Y o r k law. City moved to dismiss for failure to state a c la im .

7 8 Civil Rights 78III Federal Remedies in General 78k1323 Color of Law 78k1326 Particular Cases and Contexts 78k1326(8) k. Police or peace officers; p r is o n s . Most Cited Cases T h e r e is no bright line test for distinguishing personal p u r s u its from activities taken under color of law and the r e le v a n t question in deciding color of law in an § 1983 a c tio n against an off duty police officer is not whether the o ffic e r was on or off duty when the challenged incident o c c u r r e d , but whether the officer albeit off-duty, n o n e th e le s s invokes the real or apparent power of the p o lic e department or performs duties prescribed generally fo r police officers. 42 U.S.C.A. § 1983.

H o ld in g s : The District Court, Chin, J., held that: ( 1 ) there was no evidence that officer was on-duty or a c tu a lly acting in his capacity as a police officer at time of s h o o tin g , and ( 2 ) city was not liable under Monell. M o tio n granted.

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W e s t Headnotes

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7 8 Civil Rights 78III Federal Remedies in General 78k1304 k. Nature and elements of civil actions. M o s t Cited Cases T h e r e are two essential elements of a § 1983 claim: (1) the c o n d u c t complained of must have been committed by a p e r s o n acting under color of state law; and (2) the conduct © 2010 Thomson Reuters. No Claim to Orig. US Gov. W o rks.

7 8 Civil Rights 78III Federal Remedies in General 78k1323 Color of Law 78k1326 Particular Cases and Contexts 78k1326(8) k. Police or peace officers; p r is o n s . Most Cited Cases I n determining whether an off-duty police officer acted u n d e r color of law, the court, in a § 1983 action, is to look a t the totality of the circumstances surrounding the o ffic e r 's acts, with attention to the nature of the officer's a c ts , rather than simply the officer's duty status, and the r e la tio n s h ip of that conduct to the officer's official duties. 4 2 U.S.C.A. § 1983.

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78III Federal Remedies in General 78k1323 Color of Law 78k1326 Particular Cases and Contexts 78k1326(8) k. Police or peace officers; p r is o n s . Most Cited Cases F a c to r s to be considered in a § 1983 action when d e te r m in in g whether an off-duty police officer acted under c o lo r of law include whether defendants identified th e m s e lv e s as police officers at any time during the in c id e n t; if plaintiff was aware that the defendants were p o lic e officers; whether defendants detained or questioned th e plaintiff in the line of duty or scope of employment as p o lic e officers; if defendants drew a firearm or arrested the p la in tiff; whether defendants were engaged in any in v e s tig a tio n or any aspect of the traditional public safety fu n c tio n s of police work. 42 U.S.C.A. § 1983.

7 8 Civil Rights 78III Federal Remedies in General 78k1342 Liability of M u n ic ip a litie s and Other G o v e r n m e n ta l Bodies 78k1351 Governmental Ordinance, Policy, P r a c tic e , or Custom 78k1351(1) k. In general. Most Cited Cases A municipality is subject to liability for damages under § 1 9 8 3 when an official municipal policy or custom c o n tr ib u te s to a constitutional deprivation. 42 U.S.C.A. § 1983.

[ 8 ] Civil Rights 78

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[ 5 ] Civil Rights 78

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7 8 Civil Rights 78III Federal Remedies in General 78k1323 Color of Law 78k1326 Particular Cases and Contexts 78k1326(2) k. Officers and public e m p lo y e e s , in general. Most Cited Cases A n officer can purport to exercise official authority within m e a n in g of § 1983 by intervening in a dispute pursuant to a duty imposed by department regulations. 42 U.S.C.A. § 1983.

7 8 Civil Rights 78III Federal Remedies in General 78k1342 Liability of Municipalities and Other G o v e r n m e n ta l Bodies 78k1352 Lack of Control, Training, or S u p e r v is io n ; Knowledge and Inaction 78k1352(1) k. In general. Most Cited Cases T h e failure to train or supervise a municipal employee m a y be properly thought of as a city policy or custom that is actionable under § 1983. 42 U.S.C.A. § 1983.

[ 9 ] Civil Rights 78

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[ 6 ] Civil Rights 78

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7 8 Civil Rights 78III Federal Remedies in General 78k1323 Color of Law 78k1326 Particular Cases and Contexts 78k1326(8) k. Police or peace officers; p r is o n s . Most Cited Cases E v e n if an altercation was private in nature, an off-duty p o lic e officer will be considered to be acting under color o f law within meaning of § 1983 if the officer responded b y invoking his or her authority. 42 U.S.C.A. § 1983.

7 8 Civil Rights 78III Federal Remedies in General 78k1342 Liability of Municipalities and Other G o v e r n m e n ta l Bodies 78k1352 Lack of Control, Training, or S u p e r v is io n ; Knowledge and Inaction 78k1352(1) k. In general. Most Cited Cases M o n e ll does not provide a separate cause of action under § 1983 for the failure by the government to train its e m p lo y e e s ; it extends liability to a municipal organization w h e r e that organization's failure to train, or the policies or c u s to m s that it has sanctioned, led to an independent c o n s titu tio n a l violation. 42 U.S.C.A. § 1983.

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7 8 Civil Rights 78III Federal Remedies in General 78k1342 Liability of Municipalities and Other G o v e r n m e n ta l Bodies 78k1351 Governmental Ordinance, Policy, P r a c tic e , or Custom 78k1351(1) k. In general. Most Cited Cases O n c e a district court properly finds no underlying c o n s titu tio n a l violation in a § 1983 action, its decision not to address the municipal defendant's liability under Monell is entirely correct. 42 U.S.C.A. § 1983.

7 8 Civil Rights 78III Federal Remedies in General 78k1342 Liability of Municipalities and Other G o v e r n m e n ta l Bodies 78k1351 Governmental Ordinance, Policy, P r a c tic e , or Custom 78k1351(4) k. Criminal law enforcement; p r is o n s . Most Cited Cases C ity was not liable in § 1983 action for police officer's a c tio n s in shooting a motorist following a traffic a lte r c a tio n , where officer had not been acting under color o f law at time of shooting, and thus there was no in d e p e n d e n t constitutional violation, as required to e s ta b lis h municipal liability under Monell. 42 U.S.C.A. § 1983.

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7 8 Civil Rights 78III Federal Remedies in General 78k1323 Color of Law 78k1326 Particular Cases and Contexts 78k1326(8) k. Police or peace officers; p r is o n s . Most Cited Cases T h e r e was no evidence that officer was on-duty or actually a c tin g in his capacity as a police officer, even if officer w a s using his department-issued weapon, as required to s u p p o r t plaintiffs' § 1983 claim that officer acted under c o lo r of law when, while off duty, he shot and killed a m o to r is t after a traffic altercation. 42 U.S.C.A. § 1983.

7 8 Civil Rights 78III Federal Remedies in General 78k1323 Color of Law 78k1326 Particular Cases and Contexts 78k1326(8) k. Police or peace officers; p r is o n s . Most Cited Cases W h e r e an off-duty officer did not act under color of law w ith in meaning of § 1983, the injury inflicted on the v ic tim is one of private violence. 42 U.S.C.A. § 1983.

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7 8 Civil Rights 78III Federal Remedies in General 78k1323 Color of Law 78k1326 Particular Cases and Contexts 78k1326(8) k. Police or peace officers; p r is o n s . Most Cited Cases A n off-duty police officer effectuating a traffic stop is also c o n s id e r e d to be acting under the color of law within m e a n in g of § 1983. 42 U.S.C.A. § 1983.

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7 8 Civil Rights 78III Federal Remedies in General 78k1342 Liability of M u n i c i p a l i tie s and Other G o v e r n m e n ta l Bodies 78k1351 Governmental Ordinance, Policy, P r a c tic e , or Custom 78k1351(1) k. In general. Most Cited Cases W ith o u t a state actor, there can be no independent c o n s titu tio n a l violation, and if there is no independent c o n s titu tio n a l violation, a Monell claim against a city will n e c e s s a r ily fail. 42 U.S.C.A. § 1983. Q u e lle r , Fisher, W a s h o r , Fuchs & Kool LLP, by Matthew J . Maiorana, Esq., New York, NY, for Plaintiffs.

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M ic h a e l A. Cardozo, Esq., Corporation Counsel of the C ity of New York, by Brian G. Maxey, Esq., Assistant C o r p o r a tio n Counsel, New York, NY, for the City of New Y o rk.

M E M O R A N D U M DECISION

C H I N , District Judge.

* 1 On October 21, 2007, at approximately 5 a.m., Jayson T ir a d o and two friends were in a car on the FDR Drive in M a n h a tta n . Tirado was driving. An accident in the vicinity o f 117th Street caused traffic to be diverted off the drive. A s Tirado was exiting on 116th Street, he cut off another v e h ic le , driven by defendant Sean Sawyer, who, u n b e k n o w n s t to Tirado and his friends at the time, was an o ff-d u ty police officer. Tirado and Sawyer exchanged w o r d s , and an encounter ensued. It ended when Sawyer d r e w a pistol and shot and killed Tirado. Sawyer, who p u r p o r te d ly was intoxicated, left the scene.

m o tio n is granted. First, the amended complaint fails to s u ffic ie n tly allege that Sawyer was acting under color of la w . Plaintiffs do not allege that Sawyer sought in any way to invoke his authority as a police officer: he was off-duty, h e did not display a badge, he did not identify himself as a police office, and he never sought to arrest Tirado. H e n c e , the altercation was a purely private one. Second, a municipality is liable under Monell only where there is a n underlying constitutional violation committed by s o m e o n e acting under color of law. Here, as the amended c o m p la in t fails to allege facts to establish that Sawyer was a state actor, the City cannot be liable under Monell. T h ir d , while it is plausible that plaintiffs may have claims a g a in s t the City under state law, they must pursue those c la im s in state court. The amended complaint is dismissed.

BACKG ROU N D

A . The Facts

F o r purposes of this motion, the facts alleged in the a m e n d e d complaint are assumed to be true. I n this case, Tirado's survivors, plaintiffs Lisa Claudio, J a y le n e Tirado, and Irene Tirado, sue Sawyer and the City o f New York (the "City") for damages, pursuant to 42 U .S .C . § 1983, alleging that Sawyer and the City violated T ir a d o 's civil rights under the Fourth and Fourteenth A m e n d m e n ts of the United States Constitution. Plaintiffs a ls o assert claims under New York law.

P la in tiffs contend that: (1) Sawyer acted under color of la w when he shot and killed Tirado; (2) the City is liable u n d e r Monell v. Department of Social Services, 436 U.S. 6 5 8 , 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978), because T ir a d o 's death was caused, in part, by the City's failure to a d e q u a te ly address the problem of off-duty police officers i m p r o p e r ly discharging their weapons while under the in flu e n c e of alcohol; and (3) the City is liable for Sawyer's a c tio n s under New York law for negligence in hiring and e m p lo y in g Sawyer and under the doctrine of respondeat s u p e r io r .

O n October 21, 2007, Tirado was shot and killed by S a w y e r , an off-duty police officer, in the vicinity of First A v e n u e and 117th Street in Manhattan. (Am. Compl. ¶ 2 2 ) . Prior to the shooting, Sawyer had consumed alcohol a n d was under the influence of alcohol. (Id. ¶¶ 29-30). At th e time of the incident, Tirado was driving a Honda Civic w ith two passengers, Jason Batista and Anthony Mencia. ( I d . ¶ 24). Sawyer was driving a Nissan Xterra. (Id. ¶ 25). T ir a d o and his two passengers were unarmed. (Id. ¶¶ 3 1 -3 3 ) . Sawyer fired a number of shots from his Glock 9 m m pistol at Tirado. (Id. ¶ 26). One bullet struck Tirado in the back, killing him. (Id. ¶ 28, 34). Sawyer left the s c e n e without reporting to the police that he had fired his w e a p o n . (Id. ¶ 37).

T h e City moves to dismiss plaintiffs' amended complaint p u r s u a n t to Federal Rule of Civil Procedure 12(b)(6). The © 2010 Thomson Reuters. No Claim to Orig. US Gov. W o rks.

* 2 Approximately 19 hours later, about 1:00 a.m. on O c to b e r 22, 2007, Sawyer approached a police car, c o m p la in e d of chest pain, and requested an ambulance. ( I d . ¶ 38). Sawyer informed the sergeant and officer in the p o l ic e car that he might have been involved in a fatal s h o o tin g the night before. (Id. ¶ 38). Sawyer was not

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a r r e s te d , but the matter was later presented to a grand jury. ( I d . ¶ 39). On July 10, 2008, a grand jury declined to in d ic t Sawyer. (Id.).

A t all relevant times, the City had a "custom" of e n c o u r a g in g its police officers, including Sawyer, to carry a n d use firearms while off-duty. (Id. ¶ ¶ 55, 58). In fact, th e use of firearms by off-duty officers was quite common. " W ith the Police Department reporting 227 off-duty s h o o tin g incidents and 1037 total shooting incidents, over a seven-year period, there was an off-duty shooting r o u g h ly every 11 days." (Id. ¶ 59). In addition, the City w a s well aware that police officers regularly "consumed a lc o h o l" while armed off-duty, even though the City's w r itte n rules officially prohibited the practice. (Id. ¶¶ 6 8 -7 1 ) . Though the City provided training for the handling a n d use of firearms, the training "did not ensure that police o ffic e r s , including Office Sawyer, [could] effectively use th e ir firearm in real-life situations." (Id. ¶¶ 49-50). The C ity was aware that this training was not sufficient, and th a t a great percentage of shooting incidents involve u n a r m e d civilians. (Id. ¶¶ 51, 53). "[I]n 77% of the in c id e n t s where police officers fired their weapons at c i v ilia n s between 1999 and 2006, the officers were the o n ly ones shooting, with officers often shooting at u n a r m e d civilians." (Id. ¶ 53).

" a complaint must contain sufficient factual matter, a c c e p te d as true, to `state a claim to relief that is plausible o n its face.' " Ashcroft v. Iqbal, --- U.S. ----, 129 S.Ct. 1 9 3 7 , 1949, 173 L.Ed.2d 868 (2009) (citing Bell Atl. v. T w o m b ly , 550 U.S. 544, 570, 127 S.Ct. 1955, 167 L.Ed.2d 9 2 9 (2007)). The Supreme Court in Iqbal set out a " tw o -p r o n g e d " approach for courts considering a motion to dismiss. Id. at 1950.

F ir s t, the court accepts plaintiff's factual allegations as true a n d draws all reasonable inferences in his favor. See id. T h e court considers only the factual allegations in the c o m p la in t and "any documents that are either incorporated in to the complaint by reference or attached to the c o m p la in t as exhibits." Blue Tree Hotels Inv. (Can.), Ltd. v . Starwood Hotels & Resorts Worldwide, Inc., 369 F.3d 2 1 2 , 217 (2d Cir.2004). Legal conclusions must be s u p p o r te d by factual allegations. Iqbal, 129 S.Ct. at 1949. P le a d i n g s that are "no more than conclusions are not e n title d to the assumption of truth." Id. at 1950.

B . Procedural History

P la in tiffs commenced this action on October 22, 2008. On M a r c h 3, 2009, the City requested leave to file a motion to d is m is s . I conducted a pre-motion conference at which the C ity's proposed motion was discussed, and I granted p la in tiffs leave to amend their complaint to take into a c c o u n t the issues raised by the City. Plaintiffs filed an a m e n d e d complaint on March 17, 2009. This motion fo llo w e d .

* 3 Second, the court determines whether the " w e ll-p le a d e d factual allegations ... plausibly give rise to a n entitlement to relief." Id. "A claim has facial p la u s ib ility when the plaintiff pleads factual content that a llo w s the court to draw the reasonable inference that the d e fe n d a n t is liable for the misconduct alleged." Id. at 1949 ( c itin g Twombly, 550 U.S. at 556, 127 S.Ct. 1955). "The p la u s ib ility standard is not akin to a `probability r e q u ir e m e n t,' but it asks for more than a sheer possibility th a t a defendant has acted unlawfully." Id. (citing T w o m b ly , 550 U.S. at 556, 127 S.Ct. 1955). Determining p la u s ib ility is a "context-specific task that requires the r e v ie w in g court to draw on its judicial experience and c o m m o n sense." Id. at 1950.

D IS C U S S IO N

I . 12(b)(6) Motion to Dism is s Standard

G e n e r a lly , to withstand a motion to dismiss, a § 1983 c o m p la in t must set forth specific factual allegations in d ic a tin g a deprivation of constitutional rights. See Alfaro M o to r s , Inc. v. Ward, 814 F.2d 883, 887 (2d Cir.1987) ( " [ B ] r o a d , simple, and conclusory statements are in s u ffic ie n t to state a claim under § 1983."); Martin v. N .Y . State Dep't of Mental Hygiene, 588 F.2d 371, 372 ( 2 d Cir.1978).

T o survive a motion to dismiss pursuant to Rule 12(b)(6), © 2010 Thomson Reuters. No Claim to Orig. US Gov. W o rks.

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I I . Federal Claim s

A . Applicable Law

1 . Color of Law

[ 1 ] S e c tio n 1983 creates a civil cause of action against a p a r ty "who, under color of any statute, ordinance, r e g u la tio n , custom, or usage, of any State ... subjects, or c a u s e s to be subjected, any citizen of the United States or o th e r person within the jurisdiction thereof to the d e p r iv a tio n of any rights, privileges, or immunities s e c u r e d by the Constitution and laws." 42 U.S.C. § 1983. T h e r e are two essential elements of a § 1983 claim: "(1) th e conduct complained of must have been committed by a person acting under color of state law; and (2) the c o n d u c t complained of must have deprived a person of r ig h t s , privileges, or immunities secured by the C o n s titu tio n or laws of the United States." Pitchell v. C a lla n , 13 F.3d 545, 547 (2d Cir.1994) (citing Parratt v. T a y lo r , 451 U.S. 527, 535, 101 S.Ct. 1908, 68 L.Ed.2d 4 2 0 (1981)).

to the officer's official duties." Lizardo v. Denny's, Inc., N o . 97 Civ. 1234(FJS), 2000 W L 976808, at *9 ( N .D .N .Y . July 13, 2000) (citing Pitchell, 13 F.3d at 548). F a c to r s to be considered when determining whether an o ff-d u ty police officer acted under color of law include " w h e th e r defendants identified themselves as police o ffi c e r s at any time during the incident; if plaintiff was a w a r e that the defendants were police officers; whether d e fe n d a n ts detained or questioned the plaintiff in the line o f duty or scope of employment as police officers; if d e fe n d a n ts drew a firearm or arrested the plaintiff; w h e th e r defendants were engaged in any investigation or a n y aspect of the traditional public safety functions of p o lic e work." Wahhab v. City of New York, 386 F.Supp.2d 2 7 7 , 288 (S.D.N.Y.2005) (citing Manning v. Jones, 696 F .S u p p . 1231, 1235 (S.D.Ind.1988)).

[ 2 ] In the context of off-duty police officers, "[c]ourts h a v e had frequent occasion to interpret the term `color of la w ' for the purposes of section 1983 actions, and it is by n o w axiomatic that under `color' of law means under `p r e te n s e ' of law and that `acts of officers in the ambit of th e ir personal pursuits are plainly excluded.' " Pitchell, 13 F .3 d at 548. (citing Screws v. United States, 325 U.S. 91, 1 1 1 , 65 S.Ct. 1031, 89 L.Ed. 1495 (1945)). "[T]here is no b r ig h t line test for distinguishing `personal pursuits' from a c tiv itie s taken under color of law" and the relevant q u e s tio n in deciding color of law is not whether the officer " w a s on or off duty when the challenged incident o c c u r r e d ," but whether the officer "albeit off-duty, n o n e th e le s s invokes the real or apparent power of the p o lic e department" or "perform[s] duties prescribed g e n e r a lly for police officers." Id. (citations omitted).

[ 5 ] [ 6 ] An officer can also purport to exercise official a u th o r ity by intervening in a dispute pursuant to a duty im p o s e d by department regulations. See Barna v. City of P e r th Amboy, 42 F.3d 809, 816 (3d Cir.1994); Stengel v. B e lc h e r , 522 F.2d 438, 440-41 (6th Cir.1975). Even if the a lte r c a tio n was private in nature, an off-duty police officer w ill be considered to be acting under color of law if the o ffic e r responded by invoking his or her authority. See R iv e r a v. La Porte, 896 F.2d 691, 696 (2d Cir.1990) ( h o ld in g that an off-duty corrections officer acted under c o lo r of law when he arrested and assaulted the plaintiff fo llo w in g a private argument during a traffic jam).

2 . Monell Liability

* 4 [ 3 ] [ 4 ] The court is to look at the "totality of the c ir c u m s ta n c e s surrounding the officer's acts, with attention to the nature of the officer's acts (rather than simply the o ffic e r 's duty status) and the relationship of that conduct © 2010 Thomson Reuters. No Claim to Orig. US Gov. W o rks.

[ 7 ] [ 8 ] Under Monell v. Dep't of Soc. Servs., 436 U.S. 658, 9 8 S.Ct. 2018, 56 L.Ed.2d 611 (1978), a municipality is s u b j e c t to liability for damages under § 1983 when an o ffic ia l municipal policy or custom contributes to a c o n s titu tio n a l deprivation. "[W ] h e n execution of a g o v e r n m e n t's policy or custom ... inflicts [an] injury ... the g o v e r n m e n t as an entity is responsible under § 1983." M o n e ll, 436 U.S. at 694, 98 S.Ct. 2018. The failure to tr a in or supervise a municipal employee may be "properly th o u g h t of as a city `policy or custom' that is actionable u n d e r § 1983." City of Canton, Ohio v. Harris, 489 U.S. 3 7 8 , 389, 109 S.Ct. 1197, 103 L.Ed.2d 412 (1989).

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[ 9 ] [ 1 0 ] Under Second Circuit case law, however, a p r e r e q u is ite to municipal liability under Monell is an u n d e r ly in g constitutional violation by a state actor. " M o n e ll does not provide a separate cause of action for the fa ilu r e by the government to train its employees; it extends lia b ility to a municipal organization where that o r g a n iz a tio n 's failure to train, or the policies or customs th a t it has sanctioned, led to an independent constitutional v io la tio n ." Segal v. City of New York, 459 F.3d 207, 219 ( 2 d Cir.2006) (emphasis in original). Once a "district court p r o p e r ly [finds] no underlying constitutional violation, its d e c is io n not to address the municipal defendant's liability u n d e r Monell [i]s entirely correct." Id.

s h o o tin g that he was a police officer or acting in that c a p a c ity . There is no indication that Tirado or his friends w e r e aware that Sawyer was a police officer from his or h is car's appearance, as there is no allegation that Sawyer w a s in uniform or that his car was a police vehicle. Unlike in Lizardo, where the court found that an off-duty officer w o r k in g for a Denny's restaurant acted under color of law w h e n he threatened to arrest the plaintiffs, there is no a lle g a tio n in the amended complaint that Sawyer a tte m p te d to arrest Tirado. Lizardo, 2000 W L 976808, at *9 .

B . Application

1 . Color of Law

* 5 [ 1 1 ] Despite the opportunity to address the deficiencies in their original complaint, plaintiffs have failed to plead fa c ts in their amended complaint sufficient to support their a lle g a tio n that Sawyer acted under color of law.

[ 1 2 ] An off-duty police officer effectuating a traffic stop is also considered to be acting under the color of law. See D a v is v. Lynbrook Police Dep't, 224 F.Supp.2d 463, 4 7 5 -7 6 (E.D.N.Y.2002) (holding that a plainclothed and in to x ic ate d off-duty police officer on disability leave acted u n d e r color of law when he menaced the plaintiff into s to p p in g car and showed his badge and identified himself a s a police officer). Unlike the defendant in Davis, there is no indication that Sawyer issued any commands, s h o w e d his badge, or tried to effect a traffic stop. FN1

F ir s t, the amended complaint does not allege that Sawyer w a s on-duty or actually acting in his capacity as a police o ffic e r . Plaintiffs specifically allege that Sawyer was o ff-d u ty and driving a Nissan Xterra-not identified as a p o lic e vehicle-when the incident with Tirado occurred. ( A m . Compl. ¶¶ 22, 25). They do not allege that Sawyer w a s on official police business or that the shooting o c c u r r e d as a result of official police concerns.

S e c o n d , although an off-duty police officer who claims to e x e r c is e official authority will be found to have acted u n d e r color of law, see Jocks v. Tavernier, 316 F.3d 128, 1 3 4 (2d Cir.2003) ("W e have no doubt that when an o ffic e r identifies himself as a police officer and uses his s e r v ic e pistol, he acts under color of law."), here, the a m e n d e d complaint does not allege that Sawyer purported to act with state authority when he confronted and then s h o t Tirado. The amended complaint does not allege that S a w ye r identified himself as a police officer, either by fla s h in g his badge or by announcing to Tirado or the other t w o passengers any time before, during, or after the © 2010 Thomson Reuters. No Claim to Orig. US Gov. W o rks.

P l a i n tiffs allege that the City "at all relevant times, p e r m itte d , encouraged and expected Officer Sawyer to c a r r y and use a firearm when off-duty." (Am. Compl. ¶ 5 4 ) . Even accepting this allegation as true, and even a s s u m in g that Sawyer used his department-issued weapon in the shooting, courts require more to conclude that an o ffic e r was acting under color of law. See Bonsignore v. C it y of New York, 683 F.2d 635 (2d Cir.1982) (holding th a t an officer who shot his wife and then committed s u ic id e with his police handgun did not act under color of la w even though the officer was required to carry the p o lic e gun at all times). The mere use of a d e p a r tm e n t-is s u e d weapon is not sufficient to hold that an o ff-d u ty officer was acting under color of law without m o r e indicia of authority. See Barna, 42 F.3d at 819 ("To h o ld otherwise would create a federal cause of action out o f any unauthorized use of a police-issue weapon, without r e g a r d to whether there are any additional circumstances to indicate that the officer was exercising actual or p u r p o r te d police authority.").

* 6 W ith o u t such factual content, plaintiffs' amended c o m p la in t lacks the facial plausibility required to survive

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a motion to dismiss. Accordingly, I conclude that the a m e n d e d complaint fails to state a claim that Sawyer was a c tin g under color of law.

c o m m itte d suicide with his police handgun was not acting u n d e r color of law for purposes of § 1983 but upholding j u r y verdict that the City was liable in negligence).

2 . Monell Liability

I I . State Law Claim s

I n their opposition memorandum, plaintiffs argue that e v e n if Sawyer was not acting under color of law, the City w a s "undeniably a state actor" when it promulgated c u s to m s and policies that led to Tirado's death. (Pl. Oppo. M e m . at 9). Plaintiffs allege that the City failed to properly tr a in and supervise Sawyer, and that it encouraged its o f f ic e r s to carry guns off-duty, even while drinking a l c o h o l.

[ 1 3 ] [ 1 4 ] [ 1 5 ] Despite the tragic facts alleged in the c o m p la in t, Second Circuit case law holds that where an o ff-d u ty officer did not act under color of law, the injury in flic te d on the victim is one of private violence. See P itc h e l l, 13 F.3d at 549. W ith o u t a state actor, there can b e no "independent constitutional violation." If there is no " in d e p e n d e n t constitutional violation," a Monell claim a g a in s t the City will necessarily fail. Segal, 459 F.3d at 2 1 9 ;s e e also Pitchell, 13 F.3d at 549. That is the case h e r e . Because Sawyer did not act under color of law, there w a s no independent constitutional violation, and the s h o o t i n g death of Tirado was an act of private violence. T h e City is not liable under Monell for the private acts of its employees.

" T h e district courts may decline to exercise supplemental j u r is d ic tio n over a claim ... if ... the district court has d is m is s e d all claims over which it has original j u r is d ic tio n ." 28 U.S.C. § 1367(c)(3). W ith the dismissal o f plaintiffs' federal § 1983 claims, there remains no in d e p e n d e n t jurisdictional basis for their state law claims. S e e Carnegie-Mellon Univ. v. Cohill, 484 U.S. 343, 350 n . 7, 108 S.Ct. 614, 98 L.Ed.2d 720 (1988) ("in the usual c a s e in which all federal-law claims are eliminated before t r i a l, the balance of factors to be considered under the p e n d e n t jurisdiction doctrine-judicial econom y , c o n v e n ie n c e , fairness, and comity-will point toward d e c lin in g to exercise jurisdiction over the remaining s ta te -la w claims"). In addition, where the federal claims a r e dismissed at an early stage in the litigation, the Second C i r c u it has generally held that it is inappropriate for the d is tr ic t court to exercise supplemental jurisdiction. See, e .g ., Giordano v. City of New York, 274 F.3d 740, 754 (2d C ir .2 0 0 1 ) ; Seabrook v. Jacobson, 153 F.3d 70, 72 (2d C ir .1 9 9 8 ) ; Castellano v. Bd. of Trs. of Police Officers' V a r i a b le Supplements Fund, 937 F.2d 752, 758 (2d C ir .1 9 9 1 ). Accordingly, I decline to exercise supplemental j u r is d ic tio n over plaintiffs' state law claims against the C ity and dismiss them as well.

P la in tiff s may have a plausible claim against the City on a negligence theory. Indeed, if plaintiffs' allegations are c o r r e c t, off-duty shootings by police officers who abuse a lc o h o l occur far too often, and, judging from the number o f decisions that appear in the case law with similar fact p a tte r n s , it may be that the City has not done enough in te r m s of training and supervision to address the problem. B u t purely private action will not support a Monell claim u n d e r § 1983, and a claim against the City such as the one a s s e r te d here-based purely on private action by an off-duty p o lic e officer, without an underlying, independent c o n s titu tio n a l claim-would have to be asserted as a state c la im under state law. See, e.g., Bonsignore v. City of New Y o r k , 683 F.2d 635 (2d Cir.1982) (holding that police o ffic e r who seriously wounded his wife and then © 2010 Thomson Reuters. No Claim to Orig. US Gov. W o rks.

C O N C L U S IO N

* 7 For the foregoing reasons, the City's motion to dismiss is granted. Although Sawyer has not appeared in the a c tio n , for the reasons set forth above, plaintiffs have not s u ffic ie n tly alleged a federal claim as to him either. A c c o r d in g ly , the federal claims against both defendants a r e dismissed with prejudice. The state law claims are d is m is s e d without prejudice to refiling in state court. The C le r k of Court shall enter judgment accordingly and close th e case.

S O ORDERED.

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F N 1 . The amended complaint does assert, in c o n c lu s o r y manner, that Sawyer was acting w i t h in the scope of and in furtherance of his e m p lo y m e n t with the City. (Am. Compl. ¶¶ 44, 4 5 ) . Plaintiffs fail, however, to plead sufficient fa c tu a l content to allow the Court to draw the in fe r e n c e that Sawyer was acting under color of la w .

S .D .N .Y .,2 0 0 9 . C la u d io v. Sawyer --- F.Supp.2d ----, 2009 W L 4929260 (S.D.N.Y.), 75 F e d .R .S e r v .3 d 655

E N D OF DOCUMENT

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