Montgomery v. The City of New York et al

Filing 26

MEMORANDUM OPINION AND ORDER GRANTING re: 23 MOTION to Dismiss, filed by The City of New York, NYPD, NYC Administration For Children Services. This dismissal is without prejudice and Montgomery may file an amended complaint within 60 days of the date of this opinion. Montgomery may contact the Pro Se Office in this Courthouse, and as further set forth in this document. (Signed by Judge Richard J. Holwell on 5/9/11) (cd)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK

KEALA MONTGOMERY,
Plaintiff,

09 Civ. 06145 (RJH)

-againstCITY OF NEW YORK, NEW YORK POLICE
DEPARTMENT, NEW YORK CITY
ADMINISTRATION FOR CHILDREN’S
SERVICES, and UNITED STATES
DEPARTMENT OF HOUSING AND URBAN
DEVELOPMENT,

MEMORANDUM OPINION
AND ORDER

Defendants.

Richard J. Holwell, District Judge:
Defendants the City of New York (the “City”), the New York Police Department
(“NYPD”), and the New York City Administration for Children’s Services (“ACS”)
move to dismiss plaintiff pro se Keala Montgomery’s complaint. Because Montgomery
has failed to plead the existence of any official custom or practice that caused the
deprivation of her constitutional rights, and because NYPD and ACS are nonsuable City
agencies, this motion is GRANTED.

BACKGROUND
On May 20, 2009, Montgomery filed suit in New York Supreme Court against the
City, NYPD, ACS, and the United States Department of Housing and Urban
Development (“HUD”). Montgomery’s complaint alleges that in March 2009, a woman
who lived in Montgomery’s building reported Montgomery to the police for assaulting

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her. (DePaul Decl. Ex. A (hereinafter “Compl.”) ¶ 4.) Montgomery was subsequently
arrested “without due process” and “detained for over 5 hours at a holding cell.” (Id.)
Montgomery also alleges that on a separate occasion, “security at the front desk” of “a
public facility” called the police for an “unknown reason,” and that upon their arrival, the
police “looked through [Montgomery’s] bags, and interrogated [her] in the street.” (Id.)
On July 8, 2009, defendants removed the action to this Court. On December 2,
2009, HUD filed a motion to dismiss on the ground that the complaint did not make any
substantive allegations against it. On June 1, 2010, Montgomery sent a letter titled
“Amended Complaint” to Magistrate Judge Ronald L. Ellis. Construing that letter as a
motion to amend a complaint pursuant to Federal Rule of Civil Procedure 15(a)(2), this
Court granted HUD’s motion to dismiss and denied Montgomery’s motion to amend on
September 7, 2010. See Montgomery v. City of New York, No. 09 Civ. 6145, 2010 WL
3563069, at *1, *2 (S.D.N.Y. Sept. 7, 2010). The remaining defendants—the City,
NYPD, and ACS—subsequently filed the current motion to dismiss on November 9,
2010.1

DISCUSSION
To survive a Rule 12(b)(6) motion to dismiss, a complaint must allege “enough
facts to state a claim to relief that is plausible on its face.” Starr v. Sony BMG Music
Entertainment, 592 F.3d 314, 321 (2d Cir. 2010) (quoting Bell Atlantic Corp. v.

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Defendants filed this motion pursuant to the Court’s scheduling order dated October 4, 2010, which
required, inter alia, that Montgomery’s opposition papers be filed no later than December 8, 2010. (ECF
document no. [22] at 2.) Defendants’ Notice of Motion likewise contains the instruction: “PLEASE
TAKE FURTHER NOTICE that pursuant to the Court’s Order dated October 4, 2010, opposition papers,
if any, are due on or before December 8, 2010.” (Defs.’ Notice of Motion at 1.) Having received no
opposition papers to date, the Court now decides this motion.

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Twombly, 550 U.S. 544, 570 (2007)). “A claim has facial plausibility when the plaintiff
pleads factual content that allows the court to draw the reasonable inference that the
defendant is liable for the misconduct alleged.” Ashcroft v. Iqbal, 129 S. Ct. 1937, 1949
(2009). If the factual averments permit no reasonable inference stronger than the “mere
possibility of misconduct,” the complaint should be dismissed. Starr, 592 F.3d at 321
(quoting Iqbal, 129 S. Ct. at 1950). Thus, “[w]here a complaint pleads facts that are
‘merely consistent with’ a defendant’s liability, it ‘stops short of the line between
possibility and plausibility of ‘entitlement to relief.’” Iqbal, 129 S. Ct. at 1949 (quoting
Twombly, 550 U.S. at 557). In applying this standard of facial plausibility, the Court
takes all “factual allegations to be true and draw[s] all reasonable inferences in the
plaintiff’s favor. Harris v. Mills, 572 F.3d 66, 71 (2d Cir. 2009). But the Court does not
credit “mere conclusory statements” or “threadbare recitals of the elements of a cause of
action.” Iqbal, 129 S. Ct. at 1949.
Because “[p]ro se plaintiffs might not have the legal ken of attorneys,” Springs v.
Board of Education, No. 10 Civ. 1243, 2010 WL 4068712, at *2 (S.D.N.Y. Oct. 14,
2010), they are held to less stringent pleading standards. Erickson v. Pardus, 551 U.S.
89, 94 (2007). “The court must construe complaints filed by pro se litigants liberally and
interpret them to raise the strongest arguments that they suggest.” Fehrlin v. Liebowitz,
No. 10 Civ. 5027, 2010 WL 4844395, at *1 (S.D.N.Y. Nov. 29, 2010).
As a preliminary matter, NYPD and ACS are nonsuable entities and as such this
action must be dismissed as against them. This is because NYPD and ACS “are merely
agencies of the City of New York and cannot be independently sued for damages.”
DeMartino v. Kruger, No. 09-CV-305, 2011 WL 1326665, at *7 n.6 (E.D.N.Y. Mar. 31,

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2011) (dismissing claims against NYPD); see Emerson v. City of New York, 740 F. Supp.
2d 385, 396 (S.D.N.Y. 2010) (dismissing claims against ACS); see also N.Y. City
Charter Ch. 17, § 396 (“All actions and proceedings for the recovery of penalties for the
violation of any law shall be brought in the name of the city of New York and not in that
of any agency, except where otherwise provided by law.”). Thus, the only suable entity
Montgomery names is New York City.
“[A] municipality cannot be held liable solely because it employs a tortfeasor—or,
in other words, a municipality cannot be held liable under § 19832 on a respondeat
superior theory.” Monell v. Dep’t of Soc. Serv. of City of New York, 436 U.S. 658, 691
(1978) (emphasis in original). “Instead, it is when execution of a government’s policy or
custom, whether made by its lawmakers or by those whose edicts or acts may fairly be
said to represent official policy, inflicts the injury that the government as an entity is
responsible under § 1983.” Id. at 694. See also Shomo v. City of New York, 579 F.3d
176, 184 (2d Cir. 2009) (“To ultimately prevail on his municipal liability claim against
the City, [a plaintiff] must establish that violations of his constitutional rights were
precipitated by a municipal policy or custom.”). Thus, “[t]o hold a city liable under §
1983 for the unconstitutional actions of its employees, a plaintiff is required to plead and
prove three elements: (1) an official policy or custom that (2) causes the plaintiff to be
subjected to (3) a denial of a constitutional right.” Wray v. City of New York, 490 F.3d
189, 195 (2d Cir. 2007).

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Though Montgomery cites no statutory basis for her claims, nor identifies any specific cause of action, her
claims sound most closely in false arrest.

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Assuming, arguendo, that Montgomery has pled the existence of a constitutional
violation,3 she has failed to plead the existence of a policy or custom that allegedly
caused that violation. A plaintiff sufficiently pleads a policy or custom by alleging any of
the following:
(1) the existence of a formal policy which is officially endorsed by the
City; (2) actions taken or decisions made by City officials with final
decision making authority which caused the alleged violations of [] civil
rights; (3) a City practice so persistent and widespread that it constitutes a
custom of which constructive knowledge and acquiescence can be implied
on the part of policymaking officials; or (4) a failure by City policymakers
to properly train or supervise their subordinates, amounting to deliberate
indifference to the rights of those who come in contact with the municipal
employees.
Allen v. Mattingly, No. 10 CV 667, 2011 WL 1261103, at *14 n.15 (E.D.N.Y. Mar. 29,
2011) (citing Sulehria v. City of New York, 670 F. Supp. 2d 288, 320 (S.D.N.Y. 2009)).
At the same time, “a custom or policy cannot be shown by pointing to a single
instance of unconstitutional conduct by a mere employee of the [government].” Hayes v.
Perotta, 751 F. Supp. 2d 597, 601 (S.D.N.Y. 2010); see also City of Oklahoma City v.
Tuttle, 471 U.S. 808, 823-24 (1985) (“Proof of a single incident of unconstitutional
activity is not sufficient to impose liability under Monell . . . .”). Likewise, two incidents
together are insufficient to establish a custom or practice. See Giaccio v. City of New
York, 502 F. Supp. 2d 380, 389 (S.D.N.Y. 2007) (evidence that New York City
Department of Transportation leaked medical records of two employees insufficient to
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At least as to her arrest, the existence of a constitutional violation is suspect since Montgomery’s
complaint states that she was arrested after a woman named Leana Grahms reported to the police that
Montgomery had assaulted her. “It is well settled that the existence of probable cause is a complete
defense to claims of false arrest and malicious prosecution under § 1983.” Beckles v. City of New York, No.
08 Civ. 3687, 2011 WL 722770, at *3 (S.D.N.Y. Feb. 25, 2011). And, “[w]hen information is received
from a putative victim or an eyewitness, probable cause exists, unless the circumstances raise doubt as to
the person’s veracity.” Curley v. Village of Suffern, 268 F.3d 65, 70 (2d Cir. 2001). As Montgomery
alleges no facts indicating any reason police should have disbelieved Grahms—indeed the complaint does
not even allege that Grahms’s report of assault was false—even when taking the allegations in the
complaint as true, police had probable cause to arrest Montgomery.

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support Section 1983 claim against City because “the combined evidence of only two
incidents would still be insufficient to show a ‘custom or usage’ under the Monell
standard”); Bowles v. City of New York, Nos. 00 Civ. 4213, 03 Civ. 3073, 2006 WL
1418602, at *16 & n.31 (S.D.N.Y. May 23, 2006) (two denied requests for Sundays off
work); see also Davis v. City of New York, 228 F. Supp. 2d 327, 346 (S.D.N.Y. 2002)
(“[T]wo incidents of unconstitutional conduct by low-level employees in a city agency
with over 35,000 employees can never provide a reasonable basis for finding a
widespread or well-settled custom.”) (emphasis in original).
Montgomery essentially alleges two wrongs: (1) that police “arrested [her]
without due process” and “detained [her] for over 5 hours at a holding cell” after Leana
Grahms reported that Montgomery assaulted her; and (2) that police “looked through
[her] bags, and interrogated [her] in the street” after “security at the front desk” of a
“public facility” “called NYPD for unknown [sic] reason.” (Compl. ¶ 4.) She fails to
allege, however, any formal policy, any acts of City officials with final decision making
authority, or any failure to train. Cf. Allen, 2011 WL 1261103, at *14 n.15. In addition,
the two random and isolated incidents Montgomery experienced at the hands of police
cannot establish a practice or custom so widespread that knowledge of it is imputed to
policymakers. See Davis, 228 F. Supp. 2d at 346. Thus Montgomery has failed to plead
the existence of a policy or custom, and her claims against the City must be dismissed.

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CONCLUSION

For the reasons stated above, defendants' Motion to Dismiss [231 is GRANTED.
This dismissal is without prejudice and Montgomery may file an amended complaint
within sixty days of the date of this opinion. Montgomery may contact the Pro Se Office
in this Courthouse for assistance in preparing any amended complaint, at: United States
District Court of the Southern District of New York, Pro Se Office, Daniel Patrick
Moynihan United States Courthouse, 500 Pearl Street, Room 230, New York, New York,
10007; or by calling, between 8:30 a.m. and 5:00 p.m., Monday through Friday, 212-805­
0175.

SO ORDERED.

Dated: New York, New York
May..1-,2011

G1i~
J:HOIWell'W
Richa1d
United States District Judge

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