Peterson v. The New York City Dept. of Corrections et al
Filing
64
OPINION re: 58 MOTION to Dismiss the Amended Complaint filed by City Of New York, 46 MOTION to Dismiss the Amended Complaint filed by Doctor Kwasink in HMD Office, A. Holley, Dora B. Schirro, Doctor Mathur in HMD Office, William Valerio, Gin Yee, L. Emerson-Boykin, Rose Gill Hearn. Under the authorities and conclusions set forth above, the motions of the Individual Defendants and the City to dismiss the Amended Complaint are granted with prejudice. (Signed by Judge Robert W. Sweet on 11/6/2018) (mro) Transmission to Orders and Judgments Clerk for processing.
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
----------------------------------------x
BARBARA PETERSON,
Plaintiff,
-against-
10 Civ . 7283
OPINION
City of New York; Chief Larr y W. Davis;
Asst. Dep. Warden N.A. Valasquez #54;
Captain G. Vaughn #441; Captain Irshand
Weston #1198; C.O. Dixon #1997; C. O. A.
Holley #14764; C . O. L. Emerson-Boykin
#11402; C. O. L. Rue #14596; C.O. Bell
#13702; C.O. Lori Edmonds #1192; COBA
Legal Department (John Doe And Jane Doe);
Workman's Compensation Board; Deputy
Inspector Raymond Caroli NYPD 6th
Precinct; Inspector Gin Yee
NYPD 5th Precinct; Rose Gill Hearn
Commissioner of the Department of
Investigations; Captain William Valerio
DOI (John Doe); Investigator for
Compensation Board Li MF (Jane Doe);
NYC District Attorney's Office
(John Doe); Health and Management
Division (HMO); Doctor Mathur in HMO
Office; Doctor Kwasink in HMO Office ;
Dora B. Schirro DOC Trials and
Litigation; City of New York ; and
Jerome Davis,
Defendants.
----------------------------------------x
APPEARANCES :
Pro Se
BARBARA PETERSON
630 Victory Blvd., #2F
Staten Island, NY 10301
Attorneys for Defendants
ZACHARY W. CARTER
Corporation Counse l of the City of New York
100 Church Street., Room 1-183
New York , NY 10007
By:
John Corbin Carter, Esq.
1
Sweet, D.J.
Plaintiff, Barbara Peterson ("P lai ntiff" or
"Peterson"), a former Correction Officer with the New York City
Department of Correction ("DOC"), has alleged violations of 42
U. S . C . §§ 1983, 1985, and 1988, arising out of an April 2010
incident in which she was allegedly assaulted by Lori Edmond, a
DOC co-worker, and later disciplined for her involvement in the
physical altercation that ensued.
Defendants Rose Gill Hearn, Dora Schriro, Gin Yee ,
Vincent Valerio , Avra Holley, Lorraine Emerson-Boykin, Mithlesh
Mathur, and Herbert Kwasink (collectively , the "Individual
Defendants") have moved pursuant to Federal Rule of Civil
Procedure 12 (b) (6) to dismiss the Amended Comp lai nt . See ECF No.
46.
Defendant City of New York (" the City ") has likewise
moved pursuant to Rule 12(b) (6) to dismiss the Amended
Complaint . See EC F No. 58.
2
I. Prior Proceedings
On September 22, 2010 , Plaintiff commenced this§ 1983
suit for deprivat i on of her constitutional rights against 23
different defendants:
Corrections ;
(1) The New York City Department of
(2) DOC Chief Larr y W. David;
Warden N.A. Valasquez ;
(4) DOC Captain G. Vaughn;
Captain Irshand Weston;
(a/k/a Edmound);
Doe) ;
(8)
Rose Gill Hearn;
(10)
DOC
(12) COBA Legal Department (Jane Doe and John
(15)
Inspector Gin Yee;
( 14) Deputy Inspector
(1 6)
DOI Commissioner
( 17) Captain William Va le rio ;
for Compensation Board Li Li MF (Jane Doe);
Attorney's Office (John Doe) ;
Divis i on (HMO);
(7)
(11) DOC Correction Officer Edmonds
( 13) Workman's Compensation Board;
Raymond Caro l i ;
DOC
DOC Correction Officer
(9) DOC Correction Officer Rue;
Correction Officer Bell ;
(5)
(6) DOC Correction Officer Dixon;
DOC Correct i on Officer Holley;
Emerson-Boykin;
(3) Assistant Deputy
( 18) Investigator
(1 9) NYC District
(20) Health and Management
(21) Doctor Mathur in HMO Office;
Kwasink in HMO Office ; and (23)
(22)
Doctor
DOC Commissioner Dora B .
Schriro . See ECF No. 2 .
By Order dated March 15 , 2011 , Plaintiff 's action was
dismissed wi t hout prejudice for failure to prosecute , noting
that Plaintiff had failed to serve defendants within 120 days in
3
violation of Fed. R. Civ. P. 4(m). See ECF No. 3. Ten days
later, on March 25, 2011, this action was reopened and on March
29, 2011 service of a Summons and Complaint upon defendants
within 45 days was ordered. See ECF Nos. 5-6. By Order dated
August 18, 2011, the action was again dismissed for failure to
prosecute. See ECF No. 7. Five years later, on August 11, 2016,
Plaintiff filed a motion to "reopen case on the grounds of
extraordinary circumstances." See ECF No. 8. On November 16,
2016, Plaintiff's motion to reopen the case was granted. See ECF
No. 11. After Plaintiff failed to prosecute for a third time,
the action was dismissed with prejudice on February 16, 2017.
See ECF No. 13.
After Plaintiff's March 1, 2017 letter, the case was
reopened and, on March 13, 2017, an Order of Service was issued.
In the Order of Service, the following actions were taken with
respect to certain defendants:
i.
Defendants (1) New York State Workers'
Compensation Board;
(2)
DOC; and (3) Health Management Division
were terminated from the action;
ii.
The City of New York was added as a defendant,
but was not ordered to be served via Marshals service;
4
iii. Marshals service was ordered on the following
defendants:
Caroli;
( 1) New York City Police ( "NYPD")
( 2) NYPD Inspector Gin Yee;
Rose Gill Hearn;
(4)
( 3)
Inspector Raymond
Former DOI Commissioner
DOI Captain William (Vincent) Valerio;
(5)
HMO Doctor Mithlesh Mathur; and (6) HMO Doctor Herbert Kwasink;
iv.
(1)
David,
Holley,
(2)
DOC was requested to waive service for Defendants
Velasquez,
(3)
(7) Emerson-Boykin,
Vaughn,
(8) Rue,
(4)
Weston,
(9) Bell,
(5)
(10)
Dixon,
(6)
Edmonds
(a/k/a Edmound); and (11) Commissioner Schriro; and
v.
The Plaintiff did not provide enough identifying
information to include (1) "NYC District Attorney's Office
(John
Doe)," (2) COBA Legal Department (John Doe and Jane Doe)," o r
(3) "Investigator for Compensation Board Li MF (Jane Doe)" as
defendants in this action.
After being granted leave to file an amended complaint
by the Court, Plaintiff filed her Amended Complaint on November
1, 2017. See ECF No. 43. Following a letter request by
Plaintiff, the Court requested that the City waive service of
summons in this action, which it did on March 7, 2018.
No. 53-56.
5
See ECF
The Individual Defendants' motion to dismiss was filed
on December 11, 2017, see ECF No. 46, and was marked fully
submitted on February 7, 2018. The City's motion to dismiss was
filed on April 4, 2018, see ECF No. 58, and was marked fully
submitted on May 29, 2018.
II.
The Facts
The Amended Complaint sets forth the following facts,
which are assumed true for the purpose of these motions to
dismiss. See Koch v. Christie's Int'l PLC,
699 F.3d 141, 145 (2
Cir. 2012).
Plaintiff, a former Correction Officer with the DOC,
alleges that she was assaulted by a fellow Correction Officer,
Lori Edmond, on April 26, 2010 while at work. See Am. Compl.
~
2 , ECF No. 43. On that date, Plaintiff and Edmond were involved
in a verbal disagreement that escalated into a physical
altercation.
Id.
~~
22 -25. The Supervising warden of Plaintiff's
division, Jerome Davis ("Warden Davis"), wrote incident reports
after the incident, stating that Edmond struck Plaintiff "three
6
times to the left side of the face" and that Plaintiff also
physically assaulted Edmond. See id. !! 33-34. Warden Davis
recommended that Plaintiff be suspended for five days for her
role in the incident. See id. ! 29.
Plaintiff contends that the City failed to address the
alleged assault and "turn[ed] a blind eye and suspend[ed] both
parties to avoid dealing with the physical assault on
Plaintiff;" that DOC "failed to address the assault despite
Plaintiff's repeated requests, suspended Plaintiff for ten days
and transferred Plaintiff to a less desirable work location
after the incident in retaliation for reporting this incident
and trying to file criminal charges against Edmond;" and that
DOC's "failure" constitutes a "longstanding widespread
deliberately indifferent custom, habit, practice, and/or policy
. to permit corrections officers to use excessive force
against other officers when such use is unnecessary and
unjustified." Id. !! 41-42, 48.
III. The Applicable Standard
To "survive a motion to dismiss, a complaint must
contain sufficient factual matter, accepted as true, to 'state a
claim to relief that is plausible on its face.'" Ashcroft v.
7
Iqbal,
556 U.S. 662, 678 (2009)
Twombly,
(quoting Bell Atl. Corp. v.
550 U.S. 544, 570 (2007)). Unless a plaintiff's well-
pleaded allegations have "nudged [her] claims across the line
from conceivable to plausible,
[the plaintiff's] complaint must
be dismissed." Twombly, 550 U.S. at 570; see also Iqbal,
U.S. at 678
556
("Where 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,'" and must, therefore, be dismissed.")
(citations
omitted).
Moreover, the Court must only accept as true the
allegations that contain factual matter, and need not accept as
true the allegations that merely state legal conclusions. See
Harris v. Mills,
Iqbal,
572 F.3d 66, 72
(2d Cir. 2009). Following
courts have granted motions to dismiss where the
plaintiff has pled her claim in a conclusory form, without
sufficient supporting factual allegations. See, e.g.,
Clark, 508 F.3d 106, 112
Goodwill Servs.,
Patane v.
(2d Cir. 2007); Thompson v. ABVI
531 F. App'x 160, 162 (2d Cir. 2013). While a
complaint by a prose plaintiff is construed liberally, the
complaint still must conform to the pleading requirements of the
Federal Rules and is subject to dismissal if the plaintiff fails
to allege sufficient facts from which this Court could
8
reasonably interpret a plausible claim. See Caidor v. Onondaga
Cty., 517 F.3d 601,
(2d Cir. 2008); Jackson v. N.Y.
605
Dep't of Labor, 709 F. Supp. 2d 218, 224
(S.D.N.Y. 2010)
State
(noting
that a prose complaint must state a plausible claim for relief
"sufficient to raise a
'right to relief above the speculative
level'" (quoting Twombly,
IV.
550 U.S. at 555)).
The Individual Defendants' Motion to Dismiss the Amended
Complaint is Granted
a.
§
1983 Claim
"In order to establish individual liability under§
1983, a plaintiff must show (a) that the defendant is a person
acting under color of state law, and (b) that the defendant
caused the plaintiff to be deprived of a federal right." Back v.
Hastings on Hudson Union Free Sch. Dist., 365 F.3d 107, 123 (2d
Cir. 2004)
(internal citation and quotation marks omitted). An
individual "cannot be held liable for damages under§ 1983
'merely because he held a high position of authority,'" though
he may be held liable if "was personally involved in the alleged
deprivation." Id. at 127
74
(quoting Black v. Coughlin,
76 F.3d 72,
(2d Cir. 1996)). Personal involvement can by shown by
evidence that the defendant participated directly in the alleged
9
constitutional violation; failed to remedy the wrong after being
informed of the violation through a report or appeal; created a
policy or custom under which the unconstitutional practices
occurred, or allowed the continuance of such a policy or custom;
was grossly negligent in supervising subordinates who committed
the wrongful acts; or exhibited deliberate indifference by
failing to act on information indicating that unconstitutional
acts were taking place. See id.
(citing Colon v. Coughlin,
58
F. 3d 865, 873 (2d Cir. 1995)).
The Amended Complaint alleges that Plaintiff's due
process rights were violated when Edmond assaulted her, and when
Plaintiff was allegedly suspended from work after reporting the
assault. Even assuming that Plaintiff has alleged a plausible
due process violation, the§ 1983 allegations as to the
Individual Defendants are insufficient to survive a motion to
dismiss.
As to Defendants Gill Hearn, Schriro, Yee, Mathur,
Kwasink, and Valerio, the Amended Complaint offers no facts to
suggest that they participated directly in the alleged assault,
had any knowledge that the incident occurred, or created or
continued a policy or custom allowing for such conduct.
10
With respect to Defendants Ho lle y and Emerson-Boykin,
Plaintiff merely alleges that both were Corrections Officers
employed by the City when the altercation at issue occurred, and
that they " heard the nearby altercation." Am. Compl.
':l[':l[
11-12,
26 - 27 . Plaintiff also alleges that she spoke to Defendant
Emerson-Boykin around the time of the altercation.
Id. ':lI 26.
These allegations do not rise to the level of personal
involvement required to establish individual liability under§
1983, as described above.
For these reasons, the§ 1983 claims against the
Individual Defendants are dismissed.
b. § 1985 Claims
Section 1985 prohibits two or more persons from
conspiring for the purpose of depriving any person of the equal
protection of the laws or of equal privileges and immunities
under the laws. See 42 U.S.C. § 1985. To adequately plead a
claim under§ 1985, a plaintiff must allege (1 ) a conspiracy (2)
for the purpose of depriving a person or class of persons of the
equal protection of the laws, or the equal privileges or
immunities under the laws;
(3) an overt act in furtherance of
the conspiracy ; and (4) an injury to the plaintiff's person or
11
property, or a deprivation of a right or privilege of a citizen
of the United States. See Thomas v. Roach, 1 65 F.3d 137, 146 (2d
Cir. 1999). A conspiracy "need not be shown by proof of an
explicit agreement but can be established by showing that the
parties have a tacit understanding to carry out the prohibited
conduct ." Id.
(internal citation omitted). Furthermore, Section
1985(3) requires that the conspiracy is motivated by "some
racial or perhaps otherwise class-based, invidious
discriminatory animus." Mira v. Kingston, 715 Fed. App'x 28 , 30
(2d Cir. 2017)
(citing Mian v. Donaldson, Lufkin
&
Jenrette
Secs. Corp ., 7 F.3d 1085, 1088 (2d Cir. 1993)). A plaintiff must
also demonstrate "with at least some degree of particularity,
overt acts which the defendants engaged in which were reasonably
related to the promotion of the claimed conspiracy." Roach, 165
F.3d at 147.
Peterson claims that the "Defendants conspired with
each other for the purpose[] of preventing the authorities from
enforcing Plaintiff's right to equal protection of the laws" and
that Defendants "engaged in a cover up in furtherance of the
conspiracy to conceal the crimes and misconduct of Defendants
Chief Davis, Warden Davis, and Edmond." Arn. Compl.
':l[':l[
56-57.
Plaintiff further alleges that "false statements [were] made to
the New York State Worker's Compensation Board about the attack
12
on Plaintiff by Defendant Edmond;" that Defendant Chief Davis
"fail[ed] to exercise his legal duty to report incriminating
evidence [to] the proper authorities, a failure that was
encouraged by [the City] and DOC;" that Defendants "defam[ed]
officers who reported on the job incidents to other
authorities;" and that Defendants "directly and indirectly
discourage[ed] Plaintiff from reporting the assault . " Id.
~
58.
As stated above, Defendants Holley and Emerson-Boykin are also
mentioned in the Amended Complaint as being nearby at the time
of the incident. Id .
~~
26-27.
These allegations fail to plausibly show that the
Individual Defendants entered into a conspiracy against
Peterson . See Gallop v. Cheney,
642 F.3d 364, 368
(2d Cir. 2011)
(noting that "claims of conspiracy containing only conclusory,
vague, or general allegations of conspiracy to deprive a person
of constitutional rights cannot withstand a motion to dismiss").
Plaintiff alleges no specific facts to support the existence an
agreement among any of the Individual Defendants to carry out
the scheme, or of any particular overt act undertaken by one of
the Individual Defendants. The mere fact that the Individual
Defendants were employed by the DOC, DOI, or NYPD at the
relevant time, or that some of the Individual Defendants were
nearby at the time of the incident, is insufficient to give rise
13
to any inference that they agreed to violate Peterson's
constitutional rights.
Moreover, even assuming Peterson has adequately
alleged a conspiracy, she has cited no facts suggesting that the
Individual Defendants acted with class-based, invidious
discriminatory animus. Cf. Thomsen v. City of N.Y.,
590235 at * 11 (S .D.N.Y. Feb. 11, 2016)
2016 WL
(dismissing§ 1985 in
part because plaintiff did not "allege[] any specific facts
indicating that the defendants [took action against him] because
of a protected characteristicu).
Accordingly, the§ 1985 claims against the Individual
Defendants are dismissed.
V. The City's Motion to Dismiss the Amended Complaint is
Granted
Plaintiff has failed to sufficiently plead that the
City's alleged constitutional violations were the result of an
offic ial policy or custom. See Monell v. Dep't of Soc. Servs.,
436 U.S. 658, 694
cert. denied,
(1978); Owen v . Haas,
601 F.2d 1242 (2d Cir.),
444 U.S. 980 (1979). To hold the City liable under
§ 19 83 , Plaintiff bears the burden of establishing that the
14
entity itself deprived her of a constitutional right through a
municipal "policy," "practice," or "custom." See Monell,
U.S. at 690-95; Jeffes v. Barnes, 208 F.3d 49, 57-58
2000)
("Where a plaintiff relies .
436
(2d Cir.
on the theory that the
conduct of a given official represents official policy, it is
incumbent on plaintiff to establish that element as a matter of
law."). A mere assertion that a municipality has such a policy
is insufficient to establish Monell liability. See Ed. of
Comm'rs v. Brown, 520 U.S. 397, 403 (1997)
("We have
consistently refused to hold municipalities liable under a
theory of respondeat superior.")
(internal citations omitted);
Harper v. City of New York,
424 F. App'x 36, 38
Dwares v. City of New York,
985 F.2d 94, 100 (2d Cir. 1993) ("The
mere assertion
(2d Cir. 2011);
. . that a municipality has such a custom or
policy is insufficient in the absence of allegations of fact
tending to support, at least circumstantially, such an
inference."). As the Supreme Court has made clear in respect to
municipal liability,
[I]t is not enough for a§ 1983 plaintiff merely
to identify conduct properly attributable to the
municipality.
. The plaintiff must also
demonstrate that, through its deliberate conduct,
the municipality was the 'moving force' behind
the injury alleged. That is, a plaintiff must
show that the municipal action was taken with the
requisite degree of culpability and must
demonstrate a direct causal link between the
15
municipal action and the deprivation of federal
rights.
Brown, 520 U.S. at 404; see also Fierro v. City of New York,
994
F. Supp. 2d 581, 588-89 (S.D.N.Y. 2014).
Proof of a single incident of unconstitutional
activity is insufficient to demonstrate the existence of a
custom or policy. See City of Oklahoma v. Tuttle,
821 (1985); Turpin v. Mailet,
cert. denied,
619 F.2d 196, 202
449 U.S. 1016 (1980)
471 U.S. 808,
(2d Cir. 1980),
(noting that absent strong
evidence of supervisory indifference, such as acquiescence in a
prior pattern of conduct, policy could not ordinarily be
inferred from a single case of illegality). More specifically,
an official's single decision to alter an employee's position
does not somehow create a municipal policy or custom. "The
decision to fire one man, for whatever reason, is neither a
course or method of action to help guide and determine present
and future decisions nor a high-level overall plan." Collins v.
Stasiuk, 56 F. Supp. 2d 344, 346 (S.D.N.Y. 1999).
Finding that an employment decision in regard to one
person is a "personnel decision and nothing more," this Court
has noted that "[i]t is hard to imagine any decision that falls
farther outside the common understanding of the word 'policy.'"
16
Id. at 345 (citing Soto v. Schembri,
960 F. Supp. 751, 759
(S.D.N.Y. 1997). In addition, a decision taken with respect to a
single employee is not "so 'persistent and widespread'" as to
justify the imposition of municipal liability." Giaccio v . City
of New York,
308 F. App'x 470, 472 (2d Cir. 2009)
v. City of New York , 465 F.3d 65, 80
(quoting Green
(2d Cir. 2006)).
Furthermore, it is Plaintiff's burden to establish
that the municipal official whose conduct is in question
represents an official policymaker involved with and responsible
for promulgating municipal policy. See Jeffes, 208 F.3d at 57 58. The decision-maker alleged to have violated a plaintiff's
constitutional rights must have final policymaking authority for
the municipality. See Pembaur v. Cincinnati, 475 U.S. 469, 481
(1986); see also Soto,
960 F. Supp. at 759 ("The power to make
employment decisions alone does not in itself give rise to
potential Section 1983 liability.").
Here, nothing alleged plausibly supports a c laim that
there was a particular policy, practice, or custom of the City
or DOC to incite or condone physical altercations among
employees; to fail to properly investigate assault complaints;
to permit collusive statements by off icers involved in
altercations; or to fail to supervise and train corrections
17
officers on the use of force . See Am . Compl.
~~
46-49, 68-69,
78 - 81. Although Plaintiff uses the terms "policy , " "custom," and
"practice" throughout the Amended Complaint, Plaintiff's
conclusory statements are not supported by factual evidence
setting forth any recurring pattern that might form such a
policy . See generally Am . Compl . The Amended Complaint does not
adequately identify a single other incident in which the City or
DOC failed to investigate assault allegations, condoned
workplace altercations , or failed to correctly supervise
corrections officers from using excessive force while on the
job. See generally id . Accordingly , as Plaintiff has not pointed
to any events outside the context of her 2010 assault
allegations , she has not adequately al l eged the existence of a
municipal policy or practice that was the "moving force [behind]
the constitutional violation." Monell , 436 U. S . at 694; see also
Fierro , 994 F . Supp. 2d at 588-89. Plaintiff has not
sufficiently stated that any of the alleged actions were
plausibly "so persistent or widespread" as to justify the City's
liability here. See, e.g . , Giaccio , 308 F . App'x at 472
(internal citations omitted); Green, 465 F.3d at 80
(holding
that, even where the plaintiff identified four other instances
in which defendants may have acted impermissibly, citing four
other instances falls far short of establishing a "persistent or
18
widespread" practice which could justify the imposition of
municipal liability).
The Amended Complaint has failed to allege a plausible
constitutional violation that could support a§ 1983 claim.
Absent any underlying constitutional violation, there can be no
municipal liability. See City of Los Angeles v. Heller,
475 U.S.
796, 799 (1986); Fotopolous v. Ed. of Fire Comm'rs of Hicksville
Fire Dist., 11 F. Supp. 3d 348, 373 (E.D.N.Y. 2014)
("The
dismissal of Plaintiff's underlying claim for First Amendment
retaliation requires dismissal of Plaintiff's municipal
liability claim, as Defendants cannot be liable where there is
no underlying constitutional violation.").
Plaintiff's Opposition fails to establish that the
alleged constitutional violations were the result of a
particular policy, practice, or custom of the City or DOC.
Plaintiff contends that "in furtherance of [the] unwritten
policy, Defendants ignored their written operations order on
Staff Workplace Violence," and that a "code of silence"
permeated DOC's relations with its employees regarding workplace
violence complaints. See Pl. Opp. at 4-5. Plaintiff's conclusory
allegation is that, by negligently ignoring its own directives,
the City created a policy by which Plaintiff was aggrieved. See
19
id. These allegations do not rise to the level of deliberate
culpability required to maintain a Monell claim for municipal
liability. See Brown, 520 U.S. at 403-07; Fierro,
994 F. Supp.
2d at 588-89.
Moreover, Plaintiff has not sufficiently alleged that
any of the alleged actions were plausibly "so persistent or
widespread" as to justify the City's liability here. See
Giaccio, 308 F. App'x at 472
(internal citations omitted)
Plaintiff's Opposition alleges a few other instances of
misconduct, which she believes constitute a pervasive "policy"
or "custom." First, Plaintiff points to a complaint in an
unspecified court involving the City of New York, in which the
plaintiff allegedly was forced to rewrite her narrative of an
incident. See Pl. Opp. at 5. Plaintiff offers, without specific
facts, that "[t]here were several officer-to-officer combats
that occurred during [her] tenure as a corrections officer that
were not adequately dealt with as a result of the code of
silence .
"Id. at 12. These allegations are not supported
by any factually based support, such as the names of the
officers involved, the dates of the alleged conduct, or any
other sufficiently identifying factors. A few factuallyuntethered instances do not sufficiently state a policy upon
which liability could attach to the City. See Turpin,
20
619 F.2d
at 202 (absent more evidence of supervisory indifference, such
as acquiescence in a prior pattern of conduct, policy could not
ordinarily be inferred from single incident of illegality);
Green,
465 F.3d at 80 (quoting Patterson v. Cnty. of Oneida, 375
F.3d 226 (2d Cir. 2004) (noting that where a plaintiff identified
only four examples of misconduct, the allegations stopped far
short of establishing a practice that is "so persistent and
widespread" as to justify the imposition of municipal
liability.)). Furthermore, Plaintiff's allegations under§ 1985
must also be dismissed for the same reasons as those listed
above. See Owen v. Haas,
denied,
601 F.2d 1242 (2d Cir. 1978), cert.
444 U.S. 980 (1978)
(holding that to state a claim under
§ 1985, the plaintiff must meet the Monell liability
requirements of§ 1983).
Plaintiff's attempt to add claims under Title VII of
the Civil Rights Act, 42 U.S.C. § 2000e et seq. for the first
time in her Opposition is improper and will be disregarded.
Plaintiff's Amended Complaint set forth specifically enumerated
claims involving 42 U.S.C. §§ 1983 and 1985(3), but never
mentions any cause of action under Title VII. See Arn. Compl. No
allegations establish what suspect class Plaintiff claims to be
a part of in order to bring a hostile work environment claim.
Plaintiff does not plead that she has exhausted any
21
administrative remedies with the United States Equal Employment
Opportunity Commission, which is a condition precedent to
bringing suit under Title VII. See, e.g.,
Holowecki,
552 U.S. 389, 400-02
Federal Express v.
(2008); Mcinerney v. Rensselaer
Polytechnic Inst., 505 F.3d 135, 138 (2d Cir. 2007).
VI.
Conclusion
Under the authorities and conclusions set forth above,
the motions of the Individual Defendants and the City to dismiss
the Amended Complaint are granted with prejudice.
It is so ordered.
New York, NY
November/
, 2018
ROBERT W. SWEET
U.S.D.J.
22
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