Jackson v. Williams et al

Filing 11

DECISION AND ORDERED, that the Report-Recommendation (Dkt. No. 8) is ADOPTED in part and REJECTED in part; and it is further ORDERED, that Jacksons third cause of action against Williams in his individual capacity and the Utica Police Department for allowing arrest warrants to be conducted in the residence of a third party is DISMISSED without leave to amend; and it is furtherORDERED, that the following claims are DISMISSED without leave to amend as to the Utica Police Department, but without pr ejudice to giving Jackson an opportunity to amend his Complaint (Dkt. No. 1) to set forth these claims against the proper municipal defendant: (1) Jacksons first cause of action against the Utica Police Department for maintaining a discriminatory pol icy of targeting minority homes (2) Jacksons second cause of action against the Utica Police Department for failing to enact a policy regarding the ethical treatment of animals during the carrying out of arrest warrants; (3) Jacksons fourth cause of action against the Utica Police Department for failing to hire a diverse SWAT team; and (4) Jacksons fifth cause of action against the Utica Police Department for failing to properly train officers to exercise reasonable care in confronting animals; and it is further ORDERED, that all claims against the defendant officers in their official capacities are DISMISSED without leave to amend; and it is further ORDERED, that the following claims are DISMISSED with leave to amend: (1) Jacksons sixth an d seventh causes of action against Cinque for negligent supervision of Amerosa and Paladino, and (2) Jacksons eighth and ninth causes of action against Paladino for unlawful seizure arising from the killing of the dog; and it is further ORDERED, that the following claims against Williams in his individual capacity are DISMISSED with leave to amend: (1) Jacksons first cause of action for maintaining a discriminatory policy of targeting minority homes, (2) Jacksons second cause of action for faili ng to enact a policy regarding the ethical treatment of animals during the carrying out of arrest warrants, (3) Jacksons fourth cause of action for failing to hire a diverse SWAT team, and (4) Jacksons fifth cause of action for failing to properly tr ain officers to exercise reasonable care in confronting animals; and it is further ORDERED, that Jacksons tenth cause of action against Amerosa and Paladino based on excessive force, and Jacksons eighth and ninth causes of action against Amerosa for unlawful seizure arising from the killing of the dog, shall proceed; and it is further ORDERED, that Jacksons claims under the New York State Constitution are DISMISSED without leave to amend; and it is further ORDERED, that Jackson may amend his com plaint within thirty (30) days of this Decision and Order in order to cure the deficiencies identified in the claims dismissed with leave to amend; and it is further ORDERED, that the Clerk of the Court issue summonses and forward them, along with copies of the Complaint (Dkt. No. 1) and General Order 25, to the United States Marshal for service upon Paladino and Amerosa. Signed by Senior Judge Lawrence E. Kahn on March 28, 2017. (Copy served via regular mail)(sas)

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK
ERIC J. JACKSON,
Plaintiff,
-against-

8:16-CV-1137 (LEK/CFH)

MARK WILLIAMS, et al.,
Defendants.

DECISION AND ORDER
This matter comes before the Court following an Order and Report-Recommendation
filed on November 16, 2016, by the Honorable Christian F. Hummel, U.S. Magistrate Judge,
pursuant to 28 U.S.C. § 636(b) and Local Rule 72.3. Dkt. No. 8 (“Report-Recommendation”).
Within fourteen days after a party has been served with a copy of a magistrate judge’s
report-recommendation, the party “may serve and file specific, written objections to the proposed
findings and recommendations.” Fed. R. Civ. P. 72(b); L.R. 72.1(c). If no objections are made, or
if an objection is general, conclusory, perfunctory, or a mere reiteration of an argument made to
the magistrate judge, a district court need review that aspect of a report-recommendation only for
clear error. Barnes v. Prack, No. 11-CV-857, 2013 WL 1121353, at *1 (N.D.N.Y. Mar. 18,
2013); Farid v. Bouey, 554 F. Supp. 2d 301, 306–07, 306 n.2 (N.D.N.Y. 2008); see also
Machicote v. Ercole, No. 06-CV-13320, 2011 WL 3809920, at *2 (S.D.N.Y. Aug. 25, 2011)
(“[E]ven a pro se party’s objections to a Report and Recommendation must be specific and
clearly aimed at particular findings in the magistrate’s proposal, such that no party be allowed a
second bite at the apple by simply relitigating a prior argument.”). “A [district] judge . . . may

accept, reject, or modify, in whole or in part, the findings or recommendations made by the
magistrate judge.” 28 U.S.C. § 636(b).
No objections were filed in the allotted time period. Docket. Accordingly, the Court has
reviewed the Report-Recommendation for clear error. The Report-Recommendation misstates
several aspects of municipal-liability doctrine, and it recommends that the Court let in three
claims that must be dismissed, albeit with leave to amend.
First, the Report-Recommendation suggests that “for purposes of Monell claims, a police
chief is considered to hold a position of final policymaking authority.” Rep.-Rec. at 9. That is not
quite right. The case the Report-Recommendation cites for this proposition illustrates the
confusion underlying it. In Birmingham v. Ogden, 70 F. Supp. 2d 353, 373 (S.D.N.Y. 1999), the
court said it was “indisputable” that the police chief in that case qualified as a policymaker. But
the court clarified that the mere “fact that a particular official—even a policymaking official—has
discretion in the exercise of particular functions does not, without more, give rise to municipal
liability based on an exercise of that discretion.” Id. at 374 (quoting Pembaur v. City of
Cincinnati, 475 U.S. 469, 481 (1986)). “[T]he decisionmaker must [also] be responsible for
establishing final government policy respecting the particular activity before the municipality can
be liable.” Id. Moreover, “the critical inquiry is not whether an official generally has final
policymaking authority; rather, the court must specifically determine whether the government
official is a final policymaker with respect to the particular conduct challenged in the lawsuit.”
Roe v. City of Waterbury, 542 F.3d 31, 37 (2d Cir. 2008). And “[w]hether . . . a single individual
possesses final policymaking authority is an issue of state law.” Baity v. Kralik, 51 F. Supp. 3d

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414, 436–37 (S.D.N.Y. 2014) (quoting Chin v. N.Y.C. Hous. Auth., 575 F. Supp. 2d 554, 562
(S.D.N.Y. 2008)).
Given these principles, it is not surprising that some courts have found that certain police
chiefs were not final policymakers with respect to particular issues. See, e.g., Rissetto v. County
of Clinton, No. 15-CV-720, 2016 WL 4530473, at *27 (N.D.N.Y. Aug. 29, 2016) (dismissing a
claim against the town sheriff because the complaint failed to allege facts suggesting that he
“acted as a policymaker for the [relevant] purposes”); Hardy v. Town of Greenwich, No.
06-CV-833, 2009 WL 2176117, at *4 (D. Conn. July 22, 2009) (“[W]hile [the Police
Chief] . . . had broad discretion over appointment of particular officers to specialized units, he
did not exercise final policymaking authority in this area [because] local law clearly establishes
the First Selectman, who is also the lone Police Commissioner, as the final policymaker for the
Town of Greenwich with regard to employment policy within the Police Department.”); Russo v.
City of Hartford, 341 F. Supp. 2d 85, 108 (D. Conn. 2004) (holding that while the police chief
did “exercise discretionary authority” in several respects, his “exercise of this discretion [did] not
necessarily compel the conclusion that [he] was a policymaker the purpose of establishing
municipal liability” because it was “uncontroverted that the City Charter vest[ed] policymaking
authority in the City Council and the City Manager”); Birmingham, 70 F. Supp. 2d at 374
(dismissing Monell claim because, while it was clear that the police chief and mayor were
policymakers, “neither party . . . ha[d] . . . presented the court with law or evidence regarding the
policymaking authority . . . of the Board of Police Commissioners with respect to final personnel
actions”). It is therefore incorrect to say that police chiefs necessarily are final policymakers.

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Second, the Report-Recommendation provides a misleading description of the pleading
standard for Monell claims. The Report-Recommendation states that a Monell claim should not
be dismissed so long as the defendant has “fair notice of what the plaintiff’s claim is and the
grounds upon which it rests.” Rep.-Rec. at 9 (quoting Hines v. City of Albany, 542 F. Supp. 2d
218, 230 (N.D.N.Y. 2008)). The Report-Recommendation goes on to discuss the implications of
this standard in a way that suggests a “reli[ance] on the more lenient notice pleading standard
first articulated in Conley v. Gibson, 355 U.S. 41 (1957).” Mohawk v. William Floyd Sch. Dist.,
No. 13-CV-2518, 2014 WL 7185946, at *2 (E.D.N.Y. Dec. 15, 2014). The problem is that
“Conley no longer states the applicable law: The modern ‘plausibility’ standard has governed
motions to dismiss pleadings in federal court since 2007.” Citizens United v. Schneiderman, No.
14-CV-3703, 2016 WL 4521627, at *2 (S.D.N.Y. Aug. 29, 2016) (citing Ashcroft v. Iqbal, 556
U.S. 662, 670 (2009); Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007); EEOC v. Port
Auth. of N.Y. & N.J., 768 F.3d 247, 253 (2d Cir. 2014))). Thus, it is no longer true that
boilerplate allegations about, say, a municipality’s policy of failing to adequately supervise its
employees are enough to state a claim for relief. See, e.g., Harris v. Nassau County, No.
13-CV-4728, 2016 WL 3023265, at *11 (E.D.N.Y. May 24, 2016) (“Plaintiff’s Monell pleadings
are insufficient to survive a motion to dismiss. Indeed, Plaintiff’s claims are supported by
nothing more than conclusory, boilerplate statements. Plaintiff has not specifically identified an
official policy or explained how that policy caused him to suffer the denial of a constitutional
right.”); Kucharczyk v. Westchester County, 95 F. Supp. 3d 529, 540 (S.D.N.Y. 2015) (“[T]o
survive a motion to dismiss, Plaintiffs cannot merely allege the existence of a municipal policy or
custom, but ‘must allege facts tending to support, at least circumstantially, an inference that such
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a municipal policy or custom exists.’” (quoting Santos v. New York City, 847 F. Supp. 2d 573,
576 (S.D.N.Y. 2012))); Betts v. Shearman, No. 12-CV-3195, 2013 WL 311124, at *15 (S.D.N.Y.
Jan. 24, 2013) (“‘[B]oilerplate’ conclusions as to municipal liability will not suffice, even at this
early stage of the litigation.”), aff’d, 751 F.3d 78 (2d Cir. 2014); Plair v. City of New York, 789
F. Supp. 2d 459, 468–69 (S.D.N.Y. 2011) (holding that, in light of Twombly and Iqbal,
“boilerplate Monell claims do not rise to the level of plausibility” sufficient to survive a motion
to dismiss”).1
Third, the Report-Recommendation incorrectly suggests that the Court could allow
Monell claims to proceed against defendant Chief Mark Williams in his individual capacity.
Rep.-Rec. at 10–12. The problem is that “Monell does not apply to state officials or to
individuals who are sued in their individual capacity.” Amory v. Katz, No. 15-CV-1535, 2016
WL 7377091, at *5 (D. Conn. Dec. 19, 2016). That is because “[a] victory in a personal-capacity
action is a victory against the individual defendant, rather than against the entity that employs
him.” Kentucky v. Graham, 473 U.S. 159, 167–68 (1985).
Fourth, the Court cannot accept Judge Hummel’s recommendation that it let in plaintiff
Eric J. Jackson’s claim against Williams to the extent that he alleges Williams “exercis[ed] a
discriminatory practice or policy of targeting minority homes . . . for drug raids.” Dkt. No. 1
(“Complaint”) at 9; Rep.-Rec. at 10. Nor can it accept Judge Hummel’s recommendation that it
let in Jackson’s claims against Williams for “failing to have a policy or practice . . . that allows

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It is true that a court should not subject Monell claims to a heightened pleading
standard. Leatherman v. Tarrant Cty. Narcotics Intelligence & Coordination Unit, 507 U.S. 163,
168 (1993). But Monell claims still must satisfy the plausibility standard set out in Twombly and
Iqbal. E.g., Kucharczyk, 95 F. Supp. 3d at 540.
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for the ethical treatment of animals” during raids, Compl. at 9; Rep.-Rec. at 11, and for failing to
implement a policy of training officers in how to exercise proper care in dealing with animals
during raids, Compl. at 10; Rep.-Rec. at 11. Judge Hummel appears to have based these
conclusions on his erroneous understanding of the pleading standard for Monell claims, which in
any case is inapplicable to claims against Williams in his individual capacity. These claims are
more properly understood as asserting supervisory liability against Williams.
“It is well settled in this Circuit that personal involvement of defendants in alleged
constitutional deprivations is a prerequisite to an award of damages under § 1983.” Farrell v.
Burke, 449 F.3d 470, 484 (2d Cir. 2006) (quoting Wright v. Smith, 21 F.3d 496, 501 (2d Cir.
1994)). Personal involvement can be shown by alleging
(1) that the defendant actually and directly participated in the alleged
unconstitutional acts; (2) that the defendant failed to remedy a wrong
after being informed of the wrong through a report or appeal; (3) that
the defendant created or approved a policy or custom that sanctioned
objectionable conduct which rose to the level of a constitutional
violation or allowed such a policy or custom to continue; (4) that the
defendant was grossly negligent in supervising the correctional
officers who committed the constitutional violation; or (5) that the
defendant failed to take action in response to information regarding
the occurrence of unconstitutional conduct.
Garcia v. Univ. of Conn. Health Care Ctr., No. 16-CV-852, 2016 WL 5844463, at *3 (D. Conn.
Sept. 29, 2016) (citing Colon v. Coughlin, 58 F.3d 865, 873 (2d Cir. 1995)). Further, a plaintiff
must “demonstrate a causal link between the actions of the supervisory official and his injuries.”
Conley v. Rivera, No. 16-CV-2083, 2017 WL 277912, at *3 (D. Conn. Jan. 20, 2017) (citing Poe
v. Leonard, 282 F.3d 123, 140 (2d Cir. 2002)).

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Jackson alleges merely that Williams created a policy of disproportionately targeting
minority-owned homes in drug raids. Compl. at 9. But “conclusory allegations that a defendant
was involved in the creation and enforcement of unconstitutional policies cannot sustain a claim
of personal involvement.” Koehl v. Bernstein, No. 10-CV-3808, 2011 WL 2436817, at *19
(S.D.N.Y. June 17, 2011), adopted by, 2011 WL 4390007 (S.D.N.Y. Sept. 21, 2011). For
example, in Guzman v. City of New York, No. 10-CV-1048, 2011 WL 2652572, at *4 (S.D.N.Y.
July 7, 2011), the court held that the plaintiff’s complaint failed to state a claim because it
“allege[d merely] that [the New York City Police Commissioner] promoted police officers’
infringement of the constitutional rights of racial minorities and the poor by refusing to pursue
investigations or sanction subordinates.” Similarly, in Nielsen v. City of Rochester, 58 F. Supp.
3d 268, 275 (W.D.N.Y. 2014), the court noted that the plaintiff’s complaint alleged that the
police chief had enacted a policy of, among other things, “expos[ing] subjects of arrest to
excessive force.” The court held that this allegation failed to state a claim for relief, because it
was “conclusory, and [the complaint] merely recited the legal standard required for imposing
supervisory liability, without providing any supporting factual allegations.” Id. Other courts have
reached the same conclusion on similar fact patterns. See, e.g., Morgan v. Ward, No.
14-CV-7921, 2016 WL 427913, at *7 (S.D.N.Y. Feb. 2, 2016) (“The plaintiff’s allegations
against [the individual defendant] are nothing more than bare assertions, conclusions and
formulaic recitations of the elements of supervisory liability, and are devoid of non-conclusory
factual allegations describing how [the defendant] was involved in the alleged constitutional
violations.”); Jones v. Roosevelt Island Operating Corp., No. 13-CV-2226, 2013 WL 6504428, at
*4 (S.D.N.Y. Dec. 11, 2013) (“[W]hile there are general allegations of a policy or custom in
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which unconstitutional practices occurred, plaintiff offers no concrete evidence or even a
suggestion of such evidence in the Complaint. Merely stating legal conclusions is insufficient to
state a cognizable claim for relief.”). Thus, Jackson’s allegation about this policy does not state a
plausible claim for relief.
Jackson’s allegation about Williams’s failure to train officers in the ethical treatment of
animals is equally deficient. As in the context of supervisory liability based on the enactment of a
policy or custom, supervisory liability premised on grossly negligent supervision cannot rest on
mere boilerplate allegations. See, e.g., Hill v. Chapdelaine, No. 16-CV-1656, 2017 WL 62511, at
*4 (D. Conn. Jan. 5, 2017) (“The plaintiff’s conclusory allegation that [the] Warden . . . failed to
properly train correctional staff . . . does not state a plausible claim for supervisory liability.”);
Wright v. Orleans County, No. 14-CV-622, 2015 WL 5316410, at *15 (W.D.N.Y. Sept. 10,
2015) (holding that it was insufficient for purposes of supervisory liability to allege that the
sheriff, among others, was grossly negligent in training officers in relevant Fourth and Fourteenth
Amendment principles); Landron v. City of New York, No. 14-CV-1046, 2014 WL 6433313,
at *5 (S.D.N.Y. Nov. 7, 2014) (holding that supervisory liability would not lie where the plaintiff
alleged merely that the warden “grossly failed to train and properly supervise his corrections
officers”); Houston v. Nassau County, No. 08-CV-882, 2012 WL 729352, at *5 (E.D.N.Y. Mar.
7, 2012) (holding that the plaintiff did not state a claim for supervisory liability by alleging only
that the sheriff “was grossly negligent in managing his subordinates by not placing properly
trained officers and supervisors at [the prison]”). Thus, Jackson’s conclusory allegation about the
lack of training for which Williams was allegedly responsible is insufficient to state a claim for
supervisory liability.
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A court “should not dismiss [a pro se complaint] without granting leave to amend at least
once when a liberal reading of the complaint gives any indication that a valid claim might be
stated.” Cuoco v. Moritsugu, 222 F.3d 99, 112 (2d Cir. 2000) (quoting Gomez v. USAA Fed.
Sav. Bank, 171 F.3d 794, 795 (2d Cir. 1999)). Leave to amend should typically be withheld only
if amendment would be futile—that is, if it is clear from the facts alleged that the events in
question cannot give rise to liability. Ricciuti v. N.Y.C. Transit Auth., 941 F.2d 119, 123 (2d Cir.
1991). It is not clear that amendment would be futile here, so Jackson may attempt to replead
these allegations with the specificity and level of detail required by the case law discussed above.
The Court has reviewed the remainder of the Report-Recommendation for clear error and
has found none.
Accordingly, it is hereby:
ORDERED, that the Report-Recommendation (Dkt. No. 8) is ADOPTED in part and
REJECTED in part; and it is further
ORDERED, that Jackson’s third cause of action against Williams in his individual
capacity and the Utica Police Department for allowing arrest warrants to be conducted in the
residence of a third party is DISMISSED without leave to amend; and it is further
ORDERED, that the following claims are DISMISSED without leave to amend as to
the Utica Police Department, but without prejudice to giving Jackson an opportunity to amend
his Complaint (Dkt. No. 1) to set forth these claims against the proper municipal defendant:
(1) Jackson’s first cause of action against the Utica Police Department for maintaining a
discriminatory policy of targeting minority homes (2) Jackson’s second cause of action against
the Utica Police Department for failing to enact a policy regarding the ethical treatment of
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animals during the carrying out of arrest warrants; (3) Jackson’s fourth cause of action against the
Utica Police Department for failing to hire a diverse SWAT team; and (4) Jackson’s fifth cause
of action against the Utica Police Department for failing to properly train officers to exercise
reasonable care in confronting animals; and it is further
ORDERED, that all claims against the defendant officers in their official capacities are
DISMISSED without leave to amend; and it is further
ORDERED, that the following claims are DISMISSED with leave to amend:
(1) Jackson’s sixth and seventh causes of action against Cinque for negligent supervision of
Amerosa and Paladino, and (2) Jackson’s eighth and ninth causes of action against Paladino for
unlawful seizure arising from the killing of the dog; and it is further
ORDERED, that the following claims against Williams in his individual capacity are
DISMISSED with leave to amend: (1) Jackson’s first cause of action for maintaining a
discriminatory policy of targeting minority homes, (2) Jackson’s second cause of action for
failing to enact a policy regarding the ethical treatment of animals during the carrying out of
arrest warrants, (3) Jackson’s fourth cause of action for failing to hire a diverse SWAT team, and
(4) Jackson’s fifth cause of action for failing to properly train officers to exercise reasonable care
in confronting animals; and it is further
ORDERED, that Jackson’s tenth cause of action against Amerosa and Paladino based on
excessive force, and Jackson’s eighth and ninth causes of action against Amerosa for unlawful
seizure arising from the killing of the dog, shall proceed; and it is further
ORDERED, that Jackson’s claims under the New York State Constitution are
DISMISSED without leave to amend; and it is further
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ORDERED, that Jackson may amend his complaint within thirty (30) days of this
Decision and Order in order to cure the deficiencies identified in the claims dismissed with leave
to amend; and it is further
ORDERED, that the Clerk of the Court issue summonses and forward them, along with
copies of the Complaint (Dkt. No. 1) and General Order 25, to the United States Marshal for
service upon Paladino and Amerosa; and it is further
ORDERED, that the Clerk of the Court serve a copy of this Decision and Order on
Jackson in accordance with the Local Rules.
IT IS SO ORDERED.

DATED:

March 28, 2017
Albany, New York

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