Castilla v. City of New York et al
Filing
95
OPINION AND ORDER: Lilian Castilla was the victim of a shocking sexual assault committed by a member of the New York City Police Department. That man is now serving a term in prison for his crimes. But shocking crimes alone cannot impute liability to the City of New York. Plaintiff has had ample opportunity to seek evidence to prove the existence of a municipal policy, custom, or usage, but her attorney has failed to develop a record sufficient to survive a motion for summary judgment. Because C astilla has failed to create a genuine issue as to any material fact, this Court grants the Citys motion. This action will now proceed against Sandino. Plaintiff has thirty days from the entry of this Order in which to move for summary judgment in her favor against Sandino. (Signed by Judge Sidney H. Stein on 11/14/2012) (ago)
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
LILIAN CASTILLA,
Plaintiff,
09 Civ. 5446 (SHS)
–against–
CITY OF NEW YORK, NEW YORK CITY
DETECTIVE OSCAR SANDINO, individually
and as a detective of New York City Police
Department, and POLICE OFFICERS JOHN
DOE OFFICERS 1–10,
OPINION & ORDER
Defendants.
SIDNEY H. STEIN, U.S. District Judge.
Lilian Castilla brings this action pursuant to 42 U.S.C. §§ 1983 and
1985 against the City of New York and former NYPD detective Oscar
Sandino for violations of her civil rights. Castilla alleges that Sandino,
with the assistance of several unnamed police officers,1 sexually assaulted
and repeatedly threatened her in violation of her constitutional rights. The
City now moves for summary judgment on the ground that it is not liable
as a matter of law pursuant to the well known case of Monell v. Department
of Social Services, 436 U.S. 658 (1978). For the reasons set forth below, the
City’s motion is granted.
I.
BACKGROUND
The following facts are drawn from this Court’s “‘assiduous review’”
of the record.2 Jordan v. Viacom Outdoor Grp., 475 F. Supp. 2d 440, 442 n.1
Although the Complaint names “John Doe Officers 1–10” as defendants, plaintiff
has not served any specific officers apart from Sandino with a summons and
amended complaint.
1
Because this Court has conducted its own review of the record, it need not
resolve the City’s evidentiary objections to plaintiff’s purported expert and three
transcripts of what appear to be NYPD Internal Affairs Bureau interviews. The
2
1
(S.D.N.Y. 2007) (quoting Holtz v. Rockefeller & Co., 258 F.3d 62, 73 (2d Cir.
2001)). This Court views, as it must, “the evidence in the light most
favorable to the non‐moving party and draw[s] all reasonable inferences in
its favor.” Fabozzi v. Lexington Ins. Co., 601 F.3d 88, 90 (2d Cir. 2010)
(quotation marks omitted). Importantly, Sandino admitted the central
allegations against him when he pled guilty in October 2010 to one count
of a misdemeanor information charging him with violating Castilla’s civil
rights.3
A. Sandino’s Sexual Abuse of Castilla
On February 16, 2008, Sandino and several other police officers
entered Castilla’s apartment to execute a search warrant as part of a drug
investigation of her then‐boyfriend. (Castilla Aff. ¶ 1, annexed to
plaintiff’s 56.1 Statement as Exhibit A.) At some point after entering,
Sandino ordered Castilla into a bedroom where he forced her to undress
while he watched. (Id. ¶¶ 1–4.) As Castilla stripped down to her
underwear, Sandino made sexual comments. (Id. ¶¶ 3–4.) He left the
room when a female officer knocked on the door and entered the
bedroom. (Id. ¶ 4.)
A few hours after the arrival of the police, Sandino directed that
Castilla be taken to the 110th Precinct. (Id. ¶¶ 7, 18.) Sandino took Castilla
in his car along with Vito Ardito, who was an NYPD sergeant and the
supervising officer for the execution of the search warrant. (Id. ¶ 8; Pl.’s
56.1, Ex. D at 19; IAB Rpt. at 3, annexed to the Ashanti Declaration as
Exhibit F.) During the ride, Sandino threatened Castilla with the removal
of her children by the City’s Administration for Children’s Services
(“ACS”) if she did not agree to have sex with him. (Castilla Aff. ¶¶ 10–17;
Sandino Plea Tr. at 23, United States v. Sandino, No. 10‐cr‐331 (E.D.N.Y.),
Dkt. No. 24.)
opinions offered by plaintiff’s expert add little, if any, value; moreover, the facts
contained in the transcriptions do not create a genuine issue of material fact. See
Pacheco v. N.Y. Presbyterian Hosp., 593 F. Supp. 2d 599, 624 n.13 (S.D.N.Y. 2009).
At the same time, Sandino pled guilty to a separate count for violating the civil
rights of another, unnamed woman.
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2
At the precinct, Sandino brought Castilla into an interrogation room
and asked for her answer to his sexual proposition. (Castilla Aff. ¶ 20.)
Castilla remained silent as Sandino again threatened to take away her
children. (Id. ¶¶ 20–21.) At one point, another detective entered the
interrogation room and he and Sandino attempted to recruit Castilla as a
confidential informant,4 again suggesting that her children could be taken
away from her if she refused. (Id. ¶¶ 23–25; Pl.’s 56.1, Ex. F at 83–84, 146.)
When the other detective left the room, Sandino continued to demand an
answer to his sexual proposition and physically threatened Castilla.
(Castilla Aff. ¶¶ 27–32.)
While still in the interrogation room with Sandino, Castilla asked
permission to use the bathroom. (Id. ¶ 34; Sandino Plea Tr. at 23.) Sandino
handcuffed Castilla and escorted her to the bathroom, but when Castilla
attempted to leave the stall she was using, Sandino blocked her way,
displayed his sidearm, and again ordered Castilla to strip. (Castilla Aff.
¶¶ 37–38; Pl.’s 56.1, Ex. F at 95.) As Sandino admitted during his plea, he
“then proceeded to touch [Castilla’s] vaginal area and forced [her] to
perform oral sex on [him].” (Sandino Plea Tr. at 23.) After sodomizing
her, Sandino told Castilla, “Now I know I can trust you.” (Castilla Aff. ¶
40.) Castilla states that she saw several other NYPD officers in the area as
she left the bathroom with Sandino. (Id. ¶ 41.)
Over the next few weeks, Sandino repeatedly called and texted
Castilla in an effort to arrange sexual encounters. (Id. ¶¶ 46–53; IAB Rpt.
at 3–4.) Castilla did not return Sandino’s calls and asked her boyfriend’s
criminal defense attorney to try to get Sandino to stop contacting her.
(Castilla Aff. ¶¶ 56–58.) Sandino allegedly responded by threatening
Castilla’s brother and repeating his threats to have her children removed
from her. (Id. ¶¶ 59–60.) Sandino even showed up at Castilla’s apartment
with another officer during a visit by a caseworker from the ACS. (Id. ¶¶
63–64.) During that visit, he allegedly took Castilla into a room and tried
to intimidate her into staying silent about the sexual relationship he was
Sandino testified during his deposition that he “believe[d]” he had attempted to
recruit Castilla as a confidential informant. (Pl.’s 56.1, Ex. C at 57.)
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pursuing. (Id. ¶¶ 67–69.) He also reiterated his request that Castilla work
as a confidential informant for the NYPD. (Pl.’s 56.1, Ex. F at 146–47.)
In early March 2008, Castilla decided to report Sandino’s severe
misconduct and arranged a meeting with the NYPD’s Internal Affairs
Bureau (“IAB”). (Castilla Aff. ¶ 72.) At that meeting, Castilla provided
IAB investigators with recordings of Sandino’s calls to her and copies of
his text messages. (Id.; IAB Rpt. at 3–4.) The IAB then set up a meeting
between Castilla and Sandino at a diner in Queens and recorded their
conversation. (Castilla Aff. ¶ 73.) Sandino was suspicious of being
recorded and made a final threat against Castilla. (Id. ¶ 74.) Castilla
became so frightened that, according to her, IAB officers had to hurry her
away from the scene. (Id. ¶ 75.)
Sandino’s abuse of Castilla led to his criminal prosecution in the U.S.
District Court for the Eastern District of New York. See United States v.
Sandino, No. 10‐cr‐331 (E.D.N.Y.); IAB Rpt. at 5. On October 8, 2010,
Sandino pled guilty to depriving Castilla of her rights under color of law
in violation of 18 U.S.C. § 242, and admitted the conduct that gave rise to
Castilla’s lawsuit. (Sandino Plea Tr. at 22–23.) 5 Sandino was subsequently
sentenced principally to 12 months’ imprisonment for violating Castilla’s
constitutional rights and a second, consecutive, 12‐month term for
similarly violating another woman’s rights subsequent to his abuse of
Castilla. (Id. at 23–24; Sandino Sentencing Tr. at 39, No. 10‐cr‐331, Dkt. No.
44.)
B. Policies and Training Concerning Confidential Informants and
Arrestees
As noted above, Sandino and another NYPD detective are alleged to
have attempted to recruit Castilla as a confidential informant while she
was held at the 110th Precinct. The NYPD’s policies concerning the
recruitment and handling of confidential informants are contained in
The Court takes judicial notice of these court filings. See, e.g., Giraldo v. Kessler,
694 F.3d 161, 164 & n.2 (2d Cir. 2012) (taking judicial notice of related criminal action);
S.E.C. v. Aragon Capital Advisors, LLC, No. 07 Civ. 919, 2011 WL 3278907, at *12
(S.D.N.Y. July 26, 2011) (taking judicial notice of allocution).
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NYPD Patrol Guide Interim Order 23, Series 2006. (“Interim Order 23,”
annexed to plaintiff’s 56.1 Statement as Exhibit H.) Although Interim
Order 23 concerns primarily the registration and use of confidential
informants, it also sets out restrictions and special conditions NYPD
members are to follow when recruiting certain potential confidential
informants. (Id. at 9.) These apply to any potential confidential informant
who is under the age of 18; on probation or parole; wanted on a warrant;
or a defendant in an active criminal case. (Id.) Interim Order 23 contains
no special conditions or restrictions pertaining to recruitment of female
confidential informants or confidential informants of the opposite sex from
the recruiting officer.
This policy stands in contrast to the NYPD policies that govern
searches and strip‐searches of female arrestees. (Pl.’s 56.1, Ex. I.)
According to these policies, a “female prisoner[] [should be] searched, in
all possible privacy, by a female police attendant or female police officer.”
(Id. at 146.) Strip searches “will be conducted by a member of the same sex
as the arrested person in a secure area in utmost privacy and with no other
arrestee present.” (Id. at 164.)
Sandino testified at his deposition in this action that he received no
special training “in terms of dealing with female confidential informants.”
(Pl.’s 56.1, Ex. C at 23.) He was aware that there were department
guidelines for the use of confidential informants and agreed that a
supervisor would need to sign off on their recruitment, but did not know
if specific guidelines covered the treatment of female confidential
informants. (Id. at 63–64, 93.) Sandino believed that there were no
differences between the treatment or recruitment of female and male
confidential informants. (Id. at 93.) In his words, “Females, they get
treated exactly like the male confidential informants, same paperwork,
same procedure.” (Id.) Sandino was aware of the regulations governing
searches of female arrestees. (Ashanti Decl., Ex. E at 23–24, 32, 46.)
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C. Procedural Background
Castilla’s Amended Complaint asserts five causes of action against
Sandino and the City pursuant to 42 U.S.C. § 1983 and one cause of action
against the same defendants for conspiring to violate Castilla’s
constitutional rights pursuant to 42 U.S.C. § 1985. The Court stayed this
action between March 2010 and May 2011 due to the then‐pending
criminal action against Sandino. After Sandino pled guilty and was
sentenced, the Court returned this action to its active calendar. The City
subsequently moved unsuccessfully for judgment on the pleadings. See
Castilla v. City of N.Y., No. 09 Civ. 5446, 2012 WL 3871517 (S.D.N.Y. Sept. 6,
2012). Following discovery proceedings, the City has now moved for
summary judgment on plaintiff’s Monell liability claim against it.
II. DISCUSSION
“Summary judgment may be granted only when the moving party
demonstrates that there is no genuine issue as to any material fact and that
. . . [it] is entitled to a judgment as a matter of law.” Allen v. Coughlin, 64
F.3d 77, 79 (2d Cir. 1995) (quotation marks omitted); accord Celotex Corp. v.
Catrett, 477 U.S. 317, 322 (1986). Where, as here, the nonmoving party
bears the ultimate burden of proof at trial, “the movant may show prima
facie entitlement to summary judgment” by demonstrating the absence of
a genuine issue of material fact based on insufficiencies in the record.
Salahuddin v. Goord, 467 F.3d 263, 272–73 (2d Cir. 2006). “In that event, the
nonmoving party must come forward with admissible evidence sufficient
to raise a genuine issue of fact for trial in order to avoid summary
judgment.” Cordiano v. Metacon Gun Club, Inc., 575 F.3d 199, 204 (2d Cir.
2009) (citing Celotex, 477 U.S. at 322–23).
A. Municipal Liability Pursuant to 42 U.S.C. § 1983
Pursuant to 42 U.S.C. § 1983, any “person” acting under color of law
that deprives a citizen of rights secured by the Constitution “shall be liable
to the party injured.” A municipality, such as the City of New York, is a
“person” that can be held liable pursuant to section 1983. See Monell, 436
U.S. at 690. The City, however, is not vicariously liable for the actions of
its employees: to succeed in her claim, Castilla must demonstrate that a
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City custom, policy, or usage was the moving force behind her injury. See
Bd. of Cty. Comm’rs of Bryan Cty., Okla. v. Brown, 520 U.S. 397, 404–05 (1997);
Jones v. Town of E. Haven, 691 F.3d 72, 80–81 (2d Cir. 2012).
A plaintiff may demonstrate the existence of a policy, custom, or
usage in a variety of ways. First, she may provide evidence of a formal
policy officially adopted by the municipality. Monell, 436 U.S. at 690.
Second, a single unconstitutional act or decision, when taken by an
authorized decision‐maker, may be considered a policy and thus subject a
municipality to liability. Pembaur v. City of Cincinnati, 475 U.S. 469, 480
(1986); Roe v. City of Waterbury, 542 F.3d 31, 37 (2d Cir. 2008). Third, a
policy may be established by showing that the acts of the municipal agent
were part of a widespread practice that, although not expressly
authorized, constitutes a custom or usage of which a supervising
policymaker must have been aware. Bryan Cty., 520 U.S. at 404; Jones, 691
F.3d at 81. Fourth, where a municipalityʹs failure to provide adequate
training or supervision of its agents rises to the level of deliberate
indifference, section 1983 liability may exist against the municipality.
Connick v. Thompson, 131 S. Ct. 1350, 1359–60 (2011); City of Canton, Ohio v.
Harris, 489 U.S. 378, 388 (1989). As set forth below, the law and factual
record in this action do not support municipal liability based on any of
these theories.
1.
Sandino and Ardito Are Not Policymakers
Plaintiff puts forward Sandino, at the time an NYPD detective, and
Ardito, an NYPD sergeant, as City employees whose unilateral actions can
create municipal liability. However, neither Sandino nor Ardito are
“policymakers” for Monell purposes. See Jeffes v. Barnes, 208 F.3d 49, 57–58
(2d Cir. 2000). The U.S. Court of Appeals for the Second Circuit has held
that an NYPD sergeant does not rise to the level of a final decision‐maker
whose actions can create a municipal policy, a conclusion that equally
applies to the lower ranking detectives. See Anthony v. City of N.Y., 339
F.3d 129, 139–40 (2d Cir. 2003); Velasquez v. City of N.Y., No. 08 Civ. 8478,
2012 WL 232432, at *6 (S.D.N.Y. Jan. 25, 2012). The actions of Sandino and
Ardito cannot, by themselves, impose liability on the City.
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2.
Failure to Train
Castilla’s principal argument opposing summary judgment is that the
City failed to train Sandino in the proper method of recruiting female
confidential informants, directly leading to the deprivation of her
constitutional rights. “In limited circumstances, a local government’s
decision not to train certain employees about their legal duty to avoid
violating citizens’ rights may” trigger Monell liability. Connick, 131 S. Ct. at
1359. To be held liable, the City’s failure to train must amount to
“‘deliberate indifference to the rights of persons with whom the [untrained
employees] come into contact.’” Id. (alteration in original) (quoting
Canton, 489 U.S. at 388). Thus, a plaintiff must prove that municipal
policymakers “are on actual or constructive notice that a particular
omission in their training program causes city employees to violate
citizens’ constitutional rights,” but nevertheless the city officials choose to
retain that program. Id. at 1360.
Usually, plaintiffs rely on a “pattern of similar constitutional
violations by untrained employees” to show deliberate indifference on the
part of city policymakers. Id. Here, however, Castilla has not produced
any evidence whatsoever that any policymaker was aware of any other
violation by a member of the NYPD concerning the recruitment of
confidential informants, or that any such violations had in fact occurred.
None of the newspaper articles or other court cases that plaintiff cites—the
sum total of her evidence on this point—concern confidential informants,
let alone their recruitment, or even the interrogation of female arrestees.6
(See Pl.’s Mem. in Opp’n at 9–11.)
Castilla attempts to skirt this requirement by relying on Cash v. County
of Erie, 654 F.3d 324 (2d Cir. 2011), where the Second Circuit found that a
single prior incident of sexual contact between a female prisoner and
prison guards placed the municipality on notice that its training in this
Although newspaper articles are inadmissible to prove the truth of the matter
asserted, see, e.g., Allen v. City of N.Y., 480 F. Supp. 2d 689, 720 (S.D.N.Y. 2007), these
articles are admissible to show notice to the City of allegations of misconduct. See DT
v. Somers Cent. Sch. Dist., 588 F. Supp. 2d 485, 495 (S.D.N.Y. 2008), aff’d, 348 F. App’x
697 (2d Cir. 2009).
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area was inadequate. See id. at 337–38. However, that holding was based
on a state penal statute that “pronounces prisoners categorically incapable
of consenting to any sexual activity with guards and subjects guards to
criminal liability for such conduct.” Id. at 335 (citing N.Y. Penal Law §§
130.05(3)(e)–(f), 130.25(1), 130.60(1)). This statutory framework
extinguished any distinction between types of sexual contact between
guards and prisoners, allowing substantially different forms of sexual
misconduct to constitute a pattern of similar constitutional violations. See
id. at 336–37. Castilla makes no attempt to argue that Sandino was acting
under similar statutory conditions when attempting to recruit confidential
informants.
Because Castilla has not set forth any facts to show a pattern of similar
conduct in order to establish that there was a City policy of failing to train
police officers, her only available avenue is the “‘single‐incident’ liability
that [the U.S. Supreme] Court hypothesized in Canton.” Connick, 131 S. Ct.
at 1361. Under this theory, a city could be held liable for a single instance
of misconduct by an untrained low‐level employee if, under the
circumstances, the unconstitutional consequences of this failure to train
were “patently obvious.” Id.
The Second Circuit has established three requirements that a plaintiff
must satisfy to prove such single‐incident liability. First, a city
policymaker must know to a moral certainty that his or her employees will
confront the type of situation that gave rise to plaintiff’s action; second,
this situation must present the employee with a difficult choice that would
be alleviated by training; and third, making the wrong choice in such a
situation will frequently deprive citizens of their constitutional rights. See
Walker v. City of N.Y., 974 F.2d 293, 297–98 (2d Cir. 1992).
Assuming that Castilla were able to show that the City knew to a
moral certainty that its officers would recruit female or opposite‐sexed
confidential informants—and she offers no evidence to support this
conclusion—her arguments fail when it comes to satisfying the remaining
two elements. Castilla presents no evidence to show that recruiting female
confidential informants will frequently confront NYPD officers with
difficult choices of law that would be alleviated by training, and no
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evidence that making the wrong choice will frequently deprive these
potential confidential informants of their constitutional rights. See Rivera
v. Metro. Transit Auth., 750 F. Supp. 2d 456, 464 (S.D.N.Y. 2010). It beggars
common sense to posit that Sandino faced a difficult choice as to whether
or not to coerce sex from Castilla and that training would have alleviated
that conundrum. The existence of a City policy concerning searches of
female arrestees cannot single‐handedly prove these required elements. In
sum, plaintiff has offered conjecture alone to support her failure to train
theory; conjecture cannot defeat the City’s motion for summary judgment.
See Stevens v. Metro. Transp. Auth. Police Dep’t, 293 F. Supp. 2d 415, 422
(S.D.N.Y. 2003); Warren v. Westchester Cty. Jail, 106 F. Supp. 2d 559, 567
(S.D.N.Y. 2000).
3.
Failure to Supervise
Plaintiff’s final theory of municipal liability derives from what Castilla
asserts is the City’s “custom of taking no action against its police officers
when they violate an individual’s rights.” (Pl.’s Mem. in Opp’n at 10.)
The Court construes this argument to set forth a failure to supervise theory
of liability. See Reynolds v. Giuliani, 506 F.3d 183, 191–92 (2d Cir. 2007).
The City would be liable under this theory if “a policymaking official had
notice of a potentially serious problem of unconstitutional conduct, such
that the need for corrective action or supervision was ‘obvious’ and the
policymaker’s failure to investigate or rectify the situation evidences
deliberate indifference, rather than mere negligence or bureaucratic
inaction.” Amnesty Am. v. Town of W. Hartford, 361 F.3d 113, 128 (2d Cir.
2004) (quoting Vann v. City of N.Y., 72 F.3d 1040, 1049 (2d Cir. 1995)).
Castilla cannot satisfy a single one of these elements.
First, the record in this litigation contains no evidence that any City
policymaker had notice that would lead her to conclude that corrective
action or supervision of Sandino was required. Neither of Castilla’s two
attempts to prove notice—through Sandino’s disciplinary history and by
prior acts of other, unrelated NYPD officers—avails her. During Sandino’s
deposition, he testified that he “believe[d] there were” complaints filed
against him during his time as an NYPD officer. (Pl.’s 56.1, Ex. C at 26.)
But the record does not include any complaints—apart from the IAB
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Report investigating Castilla’s allegations—and Sandino’s testimony does
not reveal if any other complaint, if it existed, concerned sexual abuse.
Unsurprisingly, the record also does not contain any evidence of the
response of policymakers to any such complaint against Sandino. Castilla
also cites as evidence of the City’s notice newspaper accounts and lawsuits
involving prior examples of NYPD officer sexual abuse. But none of these
incidents is alleged to have involved Sandino, the recruitment of potential
confidential informants, or even police interrogations. In sum, Castilla has
not shown that any policymaker was aware of any prior abuse by Sandino
sufficient to give rise to an obvious inference that supervision or corrective
action was necessary.7 This meager evidentiary record is not sufficient to
defeat summary judgment. See Jenkins v. City of N.Y., 478 F.3d 76, 95 (2d
Cir. 2007).
Second, because the record is bereft of any evidence concerning any
action by any municipal policymaker, Castilla also fails to show the
deliberate indifference required for Monell liability to attach. Although a
plaintiff is not required to show deliberate indifference in any specified
manner, see Amnesty Am., 361 F.3d at 129, Castilla does not provide direct
evidence that any policymaker ignored even a single prior act of sexual
abuse. Indeed, the articles and cases Castilla relies upon to show notice all
involve criminal prosecutions of the abusive officers. The articles show
that far from being deliberately indifferent, the City actively responded to
prior allegations of sexual misconduct by other police officers. In sum,
Castilla has not created a genuine issue of material fact concerning her
This conclusion equally forecloses municipal liability if Castilla’s failure to
supervise argument is instead interpreted as an argument that the City had a
widespread custom of ignoring constitutional violations. Plaintiff has not shown the
existence of any pattern of activity—let alone a pattern that was “so persistent that it
must have been known to supervisory authorities,” as is required to prove municipal
liability under this theory. Jones v. Town of E. Haven, 691 F.3d 72, 85 (2d Cir. 2012).
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failure to supervise theory of liability.8 See Zahra v. Town of Southold, 48
F.3d 674, 685 (2d Cir. 1995).
B. Municipal Liability Pursuant to 42 U.S.C. § 1985
Section 1985 of title 42 U.S.C. prohibits two or more persons—
including municipalities—from conspiring to violate the civil rights of
another person. See Owens v. Haas, 601 F.2d 1242, 1247 (2d Cir. 1979). “As
in the case of a claim under § 1983, there can be no liability against the City
under § 1985 absent a municipal policy, custom or practice.” Brown v. City
of N.Y., 306 F. Supp. 2d 473, 478 (S.D.N.Y. 2004). Because this Court has
concluded that no genuine issue of material fact exists concerning the
existence of a municipal policy, custom, or practice, it must also conclude
that Castilla’s section 1985 claim fails as a matter of law.
III. CONCLUSION
Lilian Castilla was the victim of a shocking sexual assault committed
by a member of the New York City Police Department. That man is now
serving a term in prison for his crimes. But shocking crimes alone cannot
impute liability to the City of New York. Plaintiff has had ample
opportunity to seek evidence to prove the existence of a municipal policy,
custom, or usage, but her attorney has failed to develop a record sufficient
to survive a motion for summary judgment. Because Castilla has failed to
create a genuine issue as to any material fact, this Court grants the City’s
The report of Castilla’s purported expert, Richard Rivera, does not change this
Court’s conclusion. (Pl.’s 56.1, Ex. B.) Rivera does opine that Castilla “was not kept
safe while in the custody and control at the 110 Precinct by defendant Oscar Sandino
or his direct supervisor, Sgt. Ardito [and that] [t]his type of behavior by these officers
can be said to be business as usual that has been on going for some time.” (Id. ¶ 14.)
However, as noted above, Ardito and Sandino are not policymakers whose actions or
inactions can lead to liability on the part of the City. Further, although Rivera notes
that “[t]here exists within American policing and within the a [sic] ‘code of silence’
whereby officers are conditions [sic] not to report the misdeeds and misconduct of
other officers” (id. ¶ 12(k)), he also opines that within the NYPD, “[t]here is strict
enforcement of rules and discipline is meted out for violations . . . .” (Id. ¶ 5.) In
short, Rivera’s conclusory and contradictory opinions cannot make up for the dearth
of facts supporting Castilla’s theories of section 1983 liability.
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motion. This action will now proceed against Sandino. Plaintiff has thirty
days from the entry of this Order in which to move for summary judgment
in her favor against Sandino.
Dated: New York, New York
November 14, 2012
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