Turczyn v. City of Utica et al
MEMORANDUM-DECISION and ORDER - ORDERED that defendants' motion to dismiss (Dkt. No. 19) is GRANTED IN PART and DENIED IN PART as follows: GRANTED with respect to all claims alleged as against the City of Utica Police Dept. and the Clerk is di rected to terminate the City of Utica Police Dept. from this action; and GRANTED with respect to Turczyn's Monell claim against the City (Am. Compl. 51-58), which is hereby DISMISSED WITHOUT PREJUDICE, and the Clerk is directed to termin ate the City of Utica from this action; and GRANTED with respect to all of Turczyn's pendant state law claims, (Am. Compl. 59-74), which are hereby DISMISSED; and DENIED in all other respects; and it is further ORDERED that the sole remaining defendant, Shanley, shall file an appropriate responsive pleading within the time allotted by the rules; and it is further ORDERED that the parties shall contact Magistrate Judge Andrew T. Baxter in order to schedule further proceedings. Signed by Chief Judge Gary L. Sharpe on 11/26/2014. (jel, )
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK
KYLIE ANN TURCZYN,
Deceased, by and through
BARBARA MCGREGOR, as
Administratrix of the Estate of
KYLIE ANN TURCZYN,
CITY OF UTICA et al.,
FOR THE PLAINTIFF:
Office of Frank Policelli
10 Steuben Park
Utica, NY 13501
FRANK POLICELLI, ESQ.
FOR THE DEFENDANTS:
City of Utica - Corporation Counsel
1 Kennedy Plaza, 2nd Floor
Utica, NY 13502
MARK C. CURLEY, ESQ.
MERIMA SMAJIC, ESQ.
ZACHARY C. OREN, ESQ.
MEMORANDUM-DECISION AND ORDER
Plaintiff Kylie Ann Turczyn, deceased, by and through Barbara
McGregor, as administratrix of the estate of Kylie Ann Turczyn,
commenced this action against defendants City of Utica, City of Utica
Police Dept., and Elizabeth Shanley alleging substantive due process
claims pursuant to 42 U.S.C. § 1983 and separate state law causes of
action. (Am. Compl., Dkt. No. 12.) Pending is defendants’ motion to
dismiss for failure to state a claim. (Dkt. No. 19.) For the reasons that
follow, the motion is granted in part and denied in part.
Shanley, an Oneida County domestic violence investigator, was at all
relevant times assigned by the Police Department to accomplish the goals
of reducing “occurrence[s] of domestic violence by increasing reporting and
by identifying and tracking repeat victims and/or offenders,” and
“increas[ing] victims’ access to supportive services by encouraging [them]
to report their abuse, thereby increasing arrest rates for domestic
offenders.” (Am. Compl. ¶ 10.) On June 22, 2012, Thomas Anderson,
Turczyn’s former boyfriend and the father of her daughter, broke into
Turczyn’s home armed with a 9 mm rifle. (Id. ¶ 11) Anderson repeatedly
shot Turczyn, taking her life in view of their four-year-old daughter, G.T.
(Id.) Anderson then dispatched himself. (Id.)
The facts are presented in the light most favorable to plaintiff.
In the twelve months preceding this horrific event, Turczyn made
between five and ten complaints to Utica police officers, “including
informing them of a specific threat by Anderson to kill her.” (Id. ¶ 12.)
Turczyn specifically told Shanley “that Anderson was armed and had
threatened to kill her.” (Id. ¶ 12(d).) Despite their knowledge of domestic
violence between Turczyn and Anderson, neither Shanley, New York State
Police, nor Utica Police took any steps to arrest Anderson, investigate
Turczyn’s complaints, or follow-up with Anderson “as is the policy and
protocol of the domestic violence unit.” (Id. ¶ 14.)
On June 18, 2012, Shanley told Turczyn to seek an order of
protection, which she attempted to do, but was told by an unknown person
at the Oneida County Family Court to return the following day because the
court was “‘too busy.’” (Id. ¶¶ 15-16.) The following day, Turczyn left a
voice message for Shanley, explaining that she was unable to obtain an
order of protection and that Anderson had a gun and planned to kill her that
week. (Id. ¶¶ 16-18.) Despite her knowledge, “Shanley took no action.”
(Id. ¶ 17.) Shanley also mistakenly believed that Turczyn’s issues with
Anderson were outside of the purview of Utica Police and should, instead,
be dealt with by New York State Police; however, “she did not inform any
other police agency or take any action herself.” (Id. ¶¶ 18, 19, 20.)
Turczyn commenced this action by filing a complaint on October 31,
2013. (Dkt. No. 1.) Defendants thereafter moved to dismiss, (Dkt. No. 10.)
In response, Turczyn filed an amended complaint as of right, which is now
the operative pleading. (See generally Am. Compl.) In her amended
complaint, Turczyn alleges the following causes of action: (1) a denial of
substantive due process rights under the Fifth and Fourteenth
Amendments due to deliberate indifference; (2) a Monell2 claim against the
City; (3) negligence; (4) a “derivative action” on behalf of G.T.; and (5)
negligent infliction of emotional distress. (Id. ¶¶ 37-74.) Defendants now
move to dismiss the amended pleading pursuant to Rules 8(a)(2) and
12(b)(6) of the Federal Rules of Civil Procedure. (Dkt. No. 19.)
III. Standard of Review
The standard of review under Fed. R. Civ. P. 12(b)(6) is well settled
and will not be repeated here. For a full discussion of the standard, the
court refers the parties to its prior decision in Ellis v. Cohen & Slamowitz,
LLP, 701 F. Supp. 2d 215, 218 (N.D.N.Y. 2010).
See Monell v. Dep’t of Soc. Servs. of N.Y., 436 U.S. 658 (1978).
At the outset, it is noted that some of Turczyn’s claims are deemed
abandoned by her failure to oppose their dismissal. See Barmore v.
Aidala, 419 F. Supp. 2d 193, 201-02 (N.D.N.Y. 2005) (“The failure to
oppose a motion to dismiss a claim is deemed abandonment of the claim,
and, in the Northern District of New York, is deemed consent to granting
that portion of the motion.” (internal citations omitted)); Hanig v. Yorktown
Cent. Sch. Dist., 384 F. Supp. 2d 710, 723 (S.D.N.Y. 2005) (“[B]ecause
[the] plaintiff did not address [the] defendant’s motion to dismiss with
regard to [a particular] claim, it [wa]s deemed abandoned and . . .
dismissed.”). In particular, Turczyn squarely opposed dismissal of her
substantive due process claim as against Shanley, (Dkt. No. 20 at 8-12),
and scarcely, but sufficiently to save the claim from dismissal for
abandonment, offered reasons why her substantive due process claim as
against the City should survive defendants’ motion, (id. at 5-7). Aside from
the substantive due process claim, Turczyn failed to offer any opposition to
defendants’ motion, which also sought dismissal of her pendant causes of
action. (Dkt. No. 19, Attach. 6 at 31-40 & n.15.) Accordingly, Turczyn’s
pendant state law claims, (Am. Compl. ¶¶ 59-74), are dismissed.
Additionally, it is clear that the Police Department must be dismissed
as urged by defendants, (Dkt. No. 19, Attach. 6 at 2 n.2), because “a
department of a municipal entity is merely a subdivision of the municipality
and has no separate legal existence.” Varela v. City of Troy, No. 1:10-cv1390, 2014 WL 2176148, at *6 (N.D.N.Y. May 22, 2014) (internal quotation
marks omitted). As such, all claims as against the Police Department are
The court also notes that both parties have submitted certain
evidence that is outside of the pleadings (Dkt. No. 19, Attachs. 3, 4; Dkt.
No. 20, Attachs. 1, 2.) Beginning with defendants, they submitted a
January 2, 2013 stipulation of discontinuance, which, on its face, purports
to memorialize McGregor’s agreement to withdraw the notice of claim filed
on behalf of Turczyn and to discontinue with prejudice, (Dkt. No. 19,
Attach. 3), and a December 28, 2012 letter, which appears to memorialize
a conversation regarding the discontinuation of legal action and execution
of a stipulation, (Dkt. No. 19, Attach. 4). Relying on a single out-of-Circuit
decision, see Raines v. Haverford Coll., 849 F. Supp. 1009, 1010 (E.D. Pa.
1994), which does not appear directly to support their position nor does it
give this court confidence that the kinds of documents at issue here were
contemplated by that decision, defendants assert that the documents may
be considered on their motion to dismiss as “part of the record of this
case.” (Dkt. No. 19, Attach. 6 at 25 n.11.) Turczyn argues that defendants’
reliance on the stipulation is inappropriate at this juncture, yet she offers
the affidavit of McGregor, submitted to dispute the validity of the stipulation,
(Dkt. No. 20, Attach. 1), without any explanation as to why the court should
or may consider it. (Dkt. No. 20 at 12-13.)
The court has excluded from its consideration of this motion to
dismiss the exhibits offered by defendants as well as the McGregor
affidavit. See Fed. R. Civ. P. 12(d). The existence of some document or
documents that may extinguish a plaintiff’s claims, such as a release or
stipulation of discontinuance, is an affirmative defense, see Beede v.
Stiefel Labs., Inc., No. 1:13-cv-120, 2014 WL 896725, at *3 (N.D.N.Y. Mar.
6, 2014), and “‘[a]n affirmative defense may be raised by a pre-answer
motion to dismiss under Rule 12(b)(6) . . . if the defense appears on the
face of the complaint,’” Iowa Pub. Emps.’ Ret. Sys. v. MF Global, Ltd., 620
F.3d 137, 145 (2d Cir. 2010) (quoting Pani v. Empire Blue Cross Blue
Shield, 152 F.3d 67, 74 (2d Cir. 1998)).
Here, the stipulation defense is not apparent from the face of the
amended complaint. Moreover, the court refuses to consider the
documents in question as part of the record of this case, a proposition for
which no in-Circuit authority has been offered nor has any been discovered
by this court. As such, the documents offered by defendants, (Dkt. No. 19,
Attachs. 3, 4), are not properly before the court, and their argument that
Turczyn’s claims must be dismissed because of those documents is
rejected. McGregor’s affidavit, (Dkt. No. 20, Attach. 1), which was also
improvidently submitted for consideration, is likewise excluded. The court
now turns to the merits of defendants’ arguments regarding the substantive
due process and Monell claims.
First, defendants argue that Turczyn’s § 1983 due process claim is
subject to dismissal under the Rule 8 plausibility analysis—specifically
because of Turczyn’s failure to allege facts supportive of a sufficient nexus
between Shanley’s omissions and Turczyn’s death. (Dkt. No. 19, Attach. 6
at 23-24.) The court disagrees. The amended complaint plausibly alleges
a causal connection between the conduct of defendants—their alleged
conscience-shocking failure to protect Turczyn, (Am. Compl. ¶ 49)—and
her injuries, i.e., the allegations plausibly suggest that defendants’ acts
were a substantial factor in bringing about Turczyn’s injuries. See
Gierlinger v. Gleason, 160 F.3d 858, 872 (2d Cir. 1998) (“[I]n all § 1983
cases the plaintiff must prove that the defendant’s action was a proximate
cause of the plaintiff’s injury.”). Accordingly, this argument is rejected.
Defendants argue that Turczyn has failed to state a substantive due
process claim as against Shanley or the City. (Dkt. No. 19, Attach. 6 at 220, 26-31.) Defendants contend that Turczyn alleges only passive conduct
on the part of Shanley that does not give rise to a substantive due process
violation. (Id. at 10-12.) More generally, defendants assert that Turczyn
has failed to plead facts to show “implicit prior assurances through
repeated sustained inaction,” and that, even if she did, the state action
alleged does not rise to the level of conscience-shocking behavior. ( Id. at
15-20.) Alternatively, defendants argue that Shanley is entitled to qualified
immunity. (Id. at 20-23.) With respect to the City, defendants contend that
Turczyn has failed to allege facts that support a claim of municipal liability.
(Id. at 26-31.) For reasons explained below, defendants’ motion is denied
with respect to Turczyn’s substantive due process claim against Shanley,
but granted with respect to her Monell claim against the City.
Only one relevant exception to the general rule that no substantive
due process claim lies for a state’s failure to protect an individual from
private violence, see DeShaney v. Winnebago Cnty. Dep’t of Soc. Servs.,
489 U.S. 189, 197 (1989), potentially applies in this case. That exception
imposes liability for failure to protect where state actors in some way
affirmatively assist “in creating or increasing the danger to the victim.” Okin
v. Vill. of Cornwall-On-Hudson Police Dep’t, 577 F.3d 415, 428 (2d Cir.
2009) (internal quotation marks and citation omitted); see Pena v.
DePrisco, 432 F.3d 98, 110 (2d Cir. 2005). “[R]epeated, sustained inaction
by government officials, in the face of potential acts of violence, might
constitute ‘prior assurances,’ rising to the level of an affirmative condoning
of private violence, even if there is no explicit approval or encouragement.”
Okin, 577 F.3d at 428 (quoting Dwares v. City of N.Y., 985 F.2d 94, 99 (2d
Cir. 1993)). Moreover, when “state officials communicate to a private
person that he . . . will not be arrested, punished, or otherwise interfered
with while engaging in misconduct that is likely to endanger the life, liberty
or property of others, those officials can be held liable under section 1983
for injury caused by the misconduct” “even though none of the defendants
[is] alleged to have communicated the approval explicitly.” Id. at 428-29
(quoting Pena, 432 F.3d at 111)). In a nutshell, “[t]he affirmative conduct of
a government official may give rise to an actionable due process violation if
it communicates, explicitly or implicitly, official sanction of private violence.”
Id. at 429.
A successful substantive due process claim also requires that the
plaintiff show “that the state action was ‘so egregious, so outrageous, that it
may fairly be said to shock the contemporary conscience.’” Id. at 431
(quoting Cnty. of Sacramento v. Lewis, 523 U.S. 833, 847 n.8 (1998). A
hierarchy of intent provides guidance on the likelihood that a particular
harm rises to the necessary level. Intentionally inflicted harms are most
likely to meet the standard, while reckless and negligent inflictions of harm
are each less likely, in graduated downward steps, to show conscienceshocking state action. Id. As for recklessly inflicted injuries, “‘[d]eliberate
indifference that shocks in one environment may not be so patently
egregious in another.’” Id. (quoting Lewis, 523 U.S. at 850). Accordingly,
the inquiry is highly fact specific.
Unlike Town of Castle Rock v. Gonzales, 545 U.S. 748 (2005), or
Neal v. Lee County, Civil Action No. 1:08CV262, 2010 WL 582437 (N.D.
Miss. Feb. 12, 2010)—cases in which police had limited interaction with
either the victim or killer prior to the victim’s demise, and upon which
defendants rely for dismissal of the claim against Shanley, (Dkt. No. 19,
Attach. 6 at 3-5, 7-8)—the allegations here go substantially farther.
Turczyn alleges several occasions 3 when Shanley knew of Anderson’s
threatening acts and did nothing, which arguably communicated to him
prior assurances that there would be no penalty to pay for his conduct.
(Am. Compl. ¶¶ 12-13.) “This is so even though none of the defendants
are alleged to have communicated the approval explicitly.” Pena, 432 F.3d
at 111. Okin has specifically recognized the liability that may arise under
these circumstances. See 577 F.3d at 428-29 (explaining that liability
under § 1983 attaches when “state officials communicate to a private
person that he . . . will not be arrested, punished, or otherwise interfered
with while engaging in misconduct that is likely to endanger the life, liberty
or property of others” (quoting Pena, 432 F.3d at 111)).
The amended complaint also pleads facts that demonstrate, at this
juncture, egregious behavior that shocks the contemporary conscience. As
In fact, Turczyn claims that she lodged five to ten complaints—of which Shanley was
aware—with the Utica Police within the twelve months preceding the murder. (Am. Compl.
¶¶ 12, 13.) So many occurrences may amount to “repeated [and] sustained inaction . . . in the
face of potential acts of violence.” Okin, 577 F.3d at 428.
in Okin, the allegations here tend to show that Shanley, who was tasked
with accomplishing certain goals related to curbing domestic violence, was
deliberately indifferent as to whether or not Anderson would make good on
his multiple threats against Turczyn’s life over a twelve-month-period. (Am.
Compl. ¶¶ 10, 12.) These allegations sufficiently support that Shanley’s
affirmative conduct was the product of deliberate indifference that shocks
the conscience, and would provide a reasonable jury with a valid basis to
so find. See Conradt v. NBC Universal, Inc., 536 F. Supp. 2d 380, 394-95
Finally, Shanley is not entitled to qualified immunity at this juncture.
Her argument on this issue is two-fold. First, Shanley asserts that no
constitutional violation occurred, and, second, she claims that, even if a
constitutional violation occurred, the right was not clearly established. (Dkt.
No. 19, Attach. 6 at 20-23.) The first prong of the argument is easily swept
aside by reference to the preceding paragraphs that explain that the
amended complaint alleges a cognizable substantive due process violation.
As for whether or not the right was clearly established, which is a
prerequisite to qualified immunity, see Harlow v. Fitzgerald, 457 U.S. 800,
818 (1982), this question has been resolved by the Second Circuit. On the
issue, the court has explained that it is “clearly established,” under the
state-created danger theory, “that police officers are prohibited from
affirmatively contributing to the vulnerability of a known victim by engaging
in conduct, whether explicit or implicit, that encourages intentional violence
against the victim, and as that is the substantive due process violation
alleged here, qualified immunity does not apply.” Okin, 577 F.3d at 434.
Accordingly, Shanley is not entitled to qualified immunity at this time.
As for the City, defendants assert that Turczyn has failed to plead a
Monell claim because the amended complaint merely alleges legal
conclusions. (Dkt. No. 19, Attach. 6 at 26-31.) With respect to Turczyn’s
allegation that the City failed to properly train or supervise its employees,
defendants contend that the amended complaint is too conclusory, but that,
even if adequately pleaded, Turczyn’s municipal liability claim must
nonetheless fail because she has not alleged deliberate indifference. ( Id.
It is well settled that “the inadequacy of police training may serve as
the basis for § 1983 liability . . . where the failure to train amounts to
deliberate indifference to the rights of persons with whom the police come
into contact.” City of Canton, Oh. v. Harris, 489 U.S. 378, 380, 388 (1989).
The deliberate indifference standard is “stringent” and requires “proof that a
municipal actor disregarded a known or obvious consequence of his
action.” Connick v. Thompson, 131 S. Ct. 1350, 1360 (2011) (internal
quotation marks and citation omitted). A showing of deliberate indifference
requires that: (1) “a policymaker knows ‘to a moral certainty’ that her
employees will confront a given situation”; (2) “the situation either presents
the employee with a difficult choice of the sort that training or supervision
will make less difficult or that there is a history of employees mishandling
the situation”; and (3) “the wrong choice by the . . . employee will frequently
cause the deprivation of a citizen’s constitutional rights.” Walker v. City of
N.Y., 974 F.2d 293, 297-98 (2d Cir. 1992) (quoting City of Canton, 489
U.S. at 390 n.10).
Here, because Turczyn has failed to adequately plead that the City’s
failure to train and supervise amounted to deliberate indifference, she has
failed to state a claim of municipal liability. The amended complaint uses
the label “deliberate indifference” in reference to Turczyn’s municipal
liability claim and generically references the City’s failure to properly train
and supervise, but it fails to allege facts that support either conclusory
notion. (Am. Compl. ¶¶ 45, 52.) Turczyn’s pleading failure mandates
dismissal of her Monell claim against the City. See Gauthier v. Kirkpatrick,
Civil Action No. 2:13-cv-187, 2013 WL 6407716, at *10 (D. Vt. Dec. 9,
2013) (dismissing failure to train Monell claim because the plaintiff failed to
plead facts that supported the deliberate difference elements); Santos v.
New York City, 847 F. Supp. 2d 573, 577 (S.D.N.Y. 2012); see also Worrell
v. City of N.Y., No. 12-CV-6151, 2014 WL 1224257, at *13 (E.D.N.Y. Mar.
WHEREFORE, for the foregoing reasons, it is hereby
ORDERED that defendants’ motion to dismiss (Dkt. No. 19) is
GRANTED IN PART and DENIED IN PART as follows:
GRANTED with respect to all claims alleged as against the City
of Utica Police Dept. and the Clerk is directed to terminate the City of Utica
Police Dept. from this action; and
GRANTED with respect to Turczyn’s Monell claim against the
City (Am. Compl. ¶¶ 51-58), which is hereby DISMISSED WITHOUT
PREJUDICE, and the Clerk is directed to terminate the City of Utica from
this action; and
GRANTED with respect to all of Turczyn’s pendant state law
claims, (Am. Compl. ¶¶ 59-74), which are hereby DISMISSED; and
DENIED in all other respects; and it is further
ORDERED that the sole remaining defendant, Shanley, shall file an
appropriate responsive pleading within the time allotted by the rules; and it
ORDERED that the parties shall contact Magistrate Judge Andrew T.
Baxter in order to schedule further proceedings; and it is further
ORDERED that the Clerk provide a copy of this MemorandumDecision and Order to the parties.
IT IS SO ORDERED.
November 26, 2014
Albany, New York
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