McGann v. The City of New York et al
Filing
17
OPINION AND ORDER re: 8 MOTION to Dismiss The Complaint. filed by The City of New York, New York City Department of Corrections. For the foregoing reasons, defendants' motion to dismiss is granted. The Clerk of Court is directed to terminate the motion pending at docket number 8, and to close this case. (Signed by Judge Paul A. Engelmayer on 3/26/2013) (djc)
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
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:
CLARENCE MCGANN,
:
:
Plaintiff,
:
:
-v:
:
THE CITY OF NEW YORK, NEW YORK CITY
:
DEPARTMENT OF CORRECTION,
:
:
Defendants.
:
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12 Civ. 5746 (PAE)
OPINION AND ORDER
PAUL A. ENGELMAYER, District Judge:
Plaintiff Clarence McGann brings this action against the City of New York (“the City”)1
pursuant to 42 U.S.C. § 1983, claiming that the City violated his substantive and procedural due
process rights. The City moves to dismiss the Complaint pursuant to Federal Rule of Civil
Procedure 12(b)(6). That motion is granted.
1
McGann also names the New York City Department of Correction (“DOC”) as a defendant. As
McGann now concedes, Pl. Br. 21 n.2, the DOC is not a suable entity. See N.Y. City Charter Ch.
17 § 296; Rivera v. Bloomberg, No. 11 Civ. 629 (PGG), 2012 WL 3655830, at *11 (S.D.N.Y.
Aug. 27, 2012).
I.
Background
A. Factual Background2
McGann was hired by the New York City Department of Correction (“DOC”) in 1984.
Compl. ¶ 10. He worked as a correctional officer at Rikers Island for nearly 25 years. Id. ¶ 3.
Although McGann’s long career was largely successful—he attained the rank of Captain in 1993
and earned several plaudits along the way, id. ¶ 11—two incidents towards the end of his career
allegedly resulted in his forced retirement. In this lawsuit, McGann claims that his rights were
violated in connection with both incidents.
The first incident involves disciplinary charges brought against McGann in May 2008.
Correctional officers are apparently permitted to purchase and carry firearms when off-duty, but
they must obtain permission from the DOC to carry a “personal protection” firearm. Id. ¶ 12. In
June 2006, McGann purchased a firearm, intending to give it to a fellow officer as a retirement
gift. Id. ¶ 13. However, the intended recipient moved away before McGann could deliver the
2
The Court’s account of the underlying facts is drawn from the Complaint (Dkt. 1), and the three
exhibits attached to the Declaration of Leah Schmelzer in Support of Defendants’ Motion to
Dismiss (“Schmelzer Decl.”) (Dkt. 9), which are: (1) a copy of the disciplinary charges filed
against McGann that give rise, in part, to his claim, and McGann’s plea agreement admitting to
those charges, id. Ex. A; (2) a copy of the judgment of McGann’s criminal conviction on the
charges for which he was (allegedly unconstitutionally) arrested, id. Ex. B; and (3) a copy of the
notice McGann gave the DOC regarding his (allegedly coerced) resignation, id. Ex. C. The
Court may consider these documents on this motion. See Halebian v. Berv, 644 F.3d 122, 130
n.7 (2d Cir. 2011) (court may consider “matters of which judicial notice may be taken, or
documents either in plaintiffs’ possession or of which plaintiffs had knowledge and relied on in
bringing suit” (citing Chambers v. Time Warner, Inc., 282 F.3d 147, 153 (2d Cir. 2002)));
DiFolco v. MSNBC Cable, LLC, 622 F.3d 104, 111 (2d Cir. 2010) (court may rely on a
document not incorporated by reference in the complaint, where the complaint “relies heavily
upon its terms and effect thereby rendering the document integral to the complaint” and where
“no dispute exists regarding the authenticity or accuracy of the document” (citations omitted));
San Leandro Emergency Med. Grp. Profit Sharing Plan v. Philip Morris Cos., 75 F.3d 801, 808–
09 (2d Cir. 1996) (permissible to consider full text of documents partially quoted in complaint).
McGann does not dispute the propriety of considering these documents on this motion. Indeed,
he explicitly cites one of them in his brief. See, e.g., Pl. Br. 20 (citing Schmelzer Decl. Ex. C).
2
gift, so McGann decided to keep it for himself. Id. ¶ 14. McGann placed the firearm in storage,
not intending to use it for “personal protection.” Id. ¶ 15.
By March 2008, McGann could no longer recall where he had stored the firearm, and he
therefore filed a missing property report with the NYPD. Id. However, the same day he filed the
missing property report, McGann alleged, his memory was suddenly refreshed: He located the
firearm, returned it to the pistol range where he had purchased it, and called the NYPD to report
that he had located the firearm. Id. ¶ 16. The NYPD allegedly ignored McGann’s call reporting
the firearm found, and instead notified the DOC that McGann’s firearm was missing. Id. ¶ 17.
In April 2008, Darleen Merit, the Deputy Warden of Security at Rikers Island, called McGann to
inform him that the DOC would have to confiscate his off-duty firearms. Id. ¶ 18. On May 5,
2008, Merit confiscated McGann’s two off-duty pistols. Id. ¶ 19. Merit allegedly provided little
explanation for the confiscation. Id. ¶¶ 21–23.
On May 29, 2008, the DOC served McGann with two disciplinary charges resulting from
the lost firearm incident: (1) “conduct unbecoming a member of service in that he purchased a
personal protection firearm without obtaining authorization from the [DOC] to purchase said
firearm” and (2) “conduct unbecoming a member of service, in that he failed to notify his
command that he had lost the firearm and subsequently failed to notify his command that he had
recovered the firearm.” Id. ¶ 24; see also Schmelzer Decl. Ex. A, at 2. McGann alleges that he
“refused to sign the charges because he did not purchase the aforementioned firearm for personal
protection.” Compl. ¶ 25. But this does not tell the whole story: On September 24, 2008,
McGann entered into a negotiated plea agreement to settle the disciplinary charges against him.
Schmelzer Decl. Ex. A, at 1. The plea agreement reads: “Captain Clarence McGann, in full
satisfaction of charges . . . accepts the penalty of loss of 25 vacation days.” Id. The DOC,
3
however, did add an amendment to the language of the charges to remove the words “personal
protection.” Id.
McGann alleges that these charges against him also deprived him of the ability to protect
himself while off-duty. Because McGann lives in an area of Staten Island known for criminal
activity and inhabited by many former inmates of Rikers Island, he alleges that he was in dire
need of an off-duty firearm to protect himself. Compl. ¶¶ 28–33. Thus, when the DOC
confiscated McGann’s firearms “for no apparent reason whatsoever,” it allegedly “put
[McGann’s] life in danger.” Id. ¶ 34.
The second incident involves McGann’s April 2009 arrest and the suspension that
resulted from it. On April 22, 2009, Captain Vincent Valerio, acting on behalf of the Department
of Investigation for the New York City Housing Authority,3 called McGann and “lured” him to
work. Valerio did so, McGann alleges, by telling McGann that he was needed to participate in
an investigation for which he would be paid overtime. Id. ¶¶ 35–36. When McGann arrived at
work, however, he was arrested by Captain Valerio and brought to a police station in Staten
Island. Id. ¶¶ 3, 36. McGann does not state what the basis was for that arrest. Thereafter,
McGann alleges, he was suspended by the DOC for 30 days; his badge and identification card
were confiscated and never returned; and he was not permitted to return to work. Id. ¶ 37. As a
result, McGann alleges, on July 30, 2009, he “had no choice but to involuntarily retire.” Id. ¶ 38.
3
Although the Complaint does not specify this, the Court notes that the City of New York
Department of Investigation (“DOI”) is a law-enforcement agency—an “independent and
nonpartisan watchdog for City government,” charged with “investigating and referring for
criminal prosecution cases of fraud, corruption and unethical conduct by City employees.” See
City of New York Department of Investigation, Mission Statement, available at
http://www.nyc.gov/html/doi/html/about/mission.shtml, last visited March 17, 2013.
4
McGann alleges that he was never afforded a hearing by the DOC prior to or following his arrest,
suspension, and discharge. Id. ¶ 39.
McGann’s pleadings omit two critical facts regarding these events. First, although the
Complaint refers to July 30, 2009 as the date of McGann’s forced resignation, it neglects to
mention that two months earlier, on May 25, 2009, McGann had submitted a formal notice of his
intent to retire from the DOC. Schmelzer Decl. Ex. C. The notice specified that McGann’s last
date worked would be May 25, 2009, and that his last date paid would be July 30, 2009. Id.
Second, the Complaint omits the fact that, as to the offense for which McGann was arrested on
April 22, 2009, McGann was later tried, and, on April 28, 2010, he was convicted in New York
state court. Schmelzer Decl. Ex. B. The offense was second degree grand larceny. On June 8,
2010, McGann was sentenced to a term of five years probation and to pay $72,641 in restitution.
Id.
B. Procedural History
On July 26, 2012, McGann filed the Complaint. Dkt. 1. On February 5, 2013, the City
filed a motion to dismiss, Dkt. 8, a brief in support of that motion, Dkt. 10 (“Def. Br.”), and the
Schmelzer Declaration, Dkt. 9, the latter of which attached the materials cited herein relating to
McGann’s September 24, 2008 plea agreement with the DOC, the July 22, 2010 certificate of
disposition reflecting the judgment that issued after his trial and sentencing on the grand larceny
charges, and his May 25, 2009 notice of retirement. On February 26, 2013, McGann filed a brief
in opposition to the City’s motion. Dkt. 13. (“Pl. Br.”). On March 5, 2013, the City filed a
reply brief. Dkt. 14 (“Def. Reply Br.”).
5
II.
Applicable Legal Standard
In resolving a motion to dismiss, the Court must “construe the Complaint liberally,
accepting all factual allegations in the Complaint as true, and drawing all reasonable inferences
in plaintiff[’s] favor.” Galiano v. Fid. Nat’l Title Ins. Co., 684 F.3d 309, 311 (2d Cir. 2012).
Nevertheless, the “[f]actual allegations must be enough to raise a right of relief above the
speculative level,” and the complaint must plead “enough fact[s] to raise a reasonable
expectation that discovery will reveal evidence of [plaintiff’s claim].” Bell Atl. Corp. v.
Twombly, 550 U.S. 544, 556 (2007). Put differently, “[t]o 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. Iqbal, 556 U.S. 662, 678 (2009) (quoting Twombly, 550 U.S.
at 570).
“The plausibility standard is not akin to a ‘probability requirement,’ but it asks for more
than a sheer possibility that a defendant has acted unlawfully.” Iqbal, 556 U.S. at 678 (quoting
Twombly, 550 U.S. at 556). “A pleading that offers ‘labels and conclusions’ or ‘a formulaic
recitation of the elements of a cause of action will not do.’ Nor does a complaint suffice if it
tenders ‘naked assertion[s]’ devoid of ‘further factual enhancement.’” Id. (quoting Twombly,
550 U.S. at 555). “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.’” Id. (quoting Twombly, 550 U.S. at 557).
III.
Discussion
McGann claims that the City and its employees violated his substantive and procedural
due process rights. Although the Complaint is not pellucid as to this point, see Compl. ¶ 40, it
appears that McGann’s substantive due process claim arises out of his April 22, 2009 arrest, see
6
Pl. Br. 10–11, and that his procedural due process claim arises out of his alleged constructive
discharge, which McGann posits resulted from the “intolerable” working atmosphere created for
McGann by the adverse events described above, see Pl. Br. 12–13. The Court addresses these
claims in turn. It then proceeds to determine whether McGann has alleged sufficient facts to
support his claim of municipal liability. First, however, the Court addresses the threshold issue
of whether McGann’s Complaint is timely.
A. Timeliness
The statute of limitations for claims brought under section 1983 incorporates state law.
See Owens v. Okure, 488 U.S. 235, 249–50 (1988). Accordingly, the three-year period for
unspecified personal injury actions under New York state law applies in this case. See N.Y.
C.P.L.R. § 214(5); Ormiston v. Nelson, 117 F.3d 69, 71 (2d Cir. 1997). “A Section 1983 claim
ordinarily ‘accrues when the plaintiff knows or has reason to know of the harm.’” Shomo v. City
of N.Y., 579 F.3d 176, 181 (2d Cir. 2009) (quoting Eagleston v. Guido, 41 F.3d 865, 871 (2d Cir.
1994)). McGann filed this Complaint on July 26, 2012. For his claims to be timely, McGann
must not have known or had reason to know of the alleged harm before July 27, 2009.
McGann’s substantive due process claim arises out of his April 22, 2009 arrest. See Pl.
Br. 10–11. The harm of which he now complains was well-known to McGann by July 27, 2009.
This claim is therefore untimely.
McGann’s procedural due process claim is also untimely. McGann bases this claim on
the theory that “his forced retirement constitutes a constructive discharge, and that Defendants
failure [sic] to afford Plaintiff a hearing prior to, or following the discharge constitutes a
violation of his constitutional due process rights.” Pl. Br. 14 (citing Compl. ¶ 39). The Second
Circuit has clearly stated that a constructive discharge claim accrues on “the date [the employee
7
gives] definite notice of [his] intention to retire, and the rule should be the same in all cases of
constructive discharge.” Flaherty v. Metromail Corp., 235 F.3d 133, 138 (2d Cir. 2000); see
also Draper v. Coeur Rochester, Inc., 147 F.3d 1104, 1110 (9th Cir. 1998) (same).
Here, McGann demonstrably gave notice of his intention to retire on May 25, 2009, as
reflected in his retirement letter of that date. Schmelzer Decl. Ex. C. McGann argues that
because he could have rescinded the notice any time before July 30, 2009, his claim did not
accrue until that date. But that is wrong: “Whether or not Plaintiff had the option of changing
his mind about retiring . . . is irrelevant. The inquiry of legal significance is whether and when
the Plaintiff communicated an intent to retire.” Shih v. City of N.Y., No. 03 Civ. 8279 (LAP),
2006 WL 2789986, at *6 (S.D.N.Y. Sept. 28, 2006) (citing Flaherty, 235 F.3d at 138). McGann
communicated his intent to retire on May 25, 2009, more than three years before he filed his
Complaint. Therefore, McGann’s procedural due process claim is also untimely.4
McGann tries to avoid this conclusion by invoking the “continuing violation” doctrine,
which provides an “exception to the normal knew-or-should-have-known accrual date of a
discrimination claim when there is evidence of an ongoing discriminatory policy or practice.”
Harris v. City of N.Y., 186 F.3d 243, 248 (2d Cir. 1999) (citation omitted). Where the doctrine
applies, it “delay[s] the commencement of the statute of limitations period until the last
discriminatory act in furtherance of [the discriminatory policy].” Id. (citation omitted). This
doctrine is “heavily disfavored in the Second Circuit and courts have been loath to apply it
4
Carmellino v. District 20 of N.Y.C. Bd. of Educ., No. 03 Civ. 5942 (PKC), 2004 WL 736988
(S.D.N.Y. Apr. 6, 2004), is inapposite. There, the plaintiff signed a stipulation of her intent to
resign effective October 16, 2001, if certain conditions were met. However, the Court found that
a factual dispute existed as to whether the conditions of the stipulation had in fact been met, and
thus whether the stipulation was an effective communication of plaintiff’s intent to resign. Id. at
*14–15. That is not the case here—there is no allegation that McGann’s notice of intent to
resign was conditional.
8
absent a showing of compelling circumstances.” Flores v. N.Y.C. Human Res. Admin., No. 10
Civ. 2407 (RJH), 2011 WL 3611340, at *2 (S.D.N.Y. Aug. 16, 2011) (citation omitted).
The Supreme Court has held, in the context of Title VII employment discrimination
claims, that the continuing violation doctrine does not apply to claims arising from discrete
discriminatory acts. See Nat’l R.R. Pass. Corp. v. Morgan, 536 U.S. 101, 109–16 (2002). To be
sure, Morgan declined to apply this rule to Title VII “pattern-or-practice” claims, see id. at 115
n.9, and, since Morgan, courts in this circuit have held that the continuing violation doctrine
applies, too, where plaintiff makes claims under § 1983 of an ongoing policy or custom of
violating the Constitution. See, e.g., Remigio v. Kelly, No. 04 Civ. 1877 (JGK)(MHD), 2005 WL
1950138, at *7 (S.D.N.Y. Aug. 12, 2005); Velez v. Reynolds, 325 F. Supp. 2d 293, 312
(S.D.N.Y. 2004); Branch v. Guilderland Cent. Sch. Dist., 239 F. Supp. 2d 242, 253 (N.D.N.Y.
2003); cf. Shomo, 579 F.3d at 182 (continuing violation can apply to Eighth Amendment
deliberate indifference claim).
For several reasons, the continuing violation doctrine does not rescue McGann’s claims.
“To assert a continuing violation for statute of limitations purposes, the plaintiff must ‘allege
both the existence of an ongoing policy . . . and some non-time-barred acts taken in the
furtherance of that policy.’” Id. (quoting Harris, 186 F.3d at 250). As discussed in more detail
infra, McGann has not sufficiently alleged the existence of an ongoing policy of constitutional
violations. But even if he had, he has not alleged any non-time-barred acts taken in furtherance
of that policy: None of the acts giving rise to McGann’s procedural due process claim occurred
after July 26, 2009. The disciplinary charges relating to the lost firearm were brought in May
2008. McGann was arrested and suspended in April 2009. And he tendered his notice of
resignation on May 25, 2009. Thus, the only act that occurred within the statute of limitations is
9
the City’s alleged failure to give McGann a sufficient hearing after his retirement became
effective on July 30, 2009. But McGann cannot complain of a lack of process extended to him
after his resignation. That is because “where the alleged illegality is the employer’s failure to
afford the employee legally required procedural protections, and the employee voluntarily
resigns before being discharged, the resignation effectively deprives the employer of the
opportunity to comply with the procedural obligations and forecloses the employee from seeking
the protections of her previous rights as an employee.” Finley v. Giacobbe, 79 F.3d 1285, 1296
(2d Cir. 1996) (citations and alterations omitted). Put differently, McGann cannot prolong the
limitations period by resigning (thereby depriving the City of the authority to conduct a hearing
regarding his discharge), and then claiming that the City’s failure to hold such a hearing was an
ongoing violation of his rights.5
McGann’s procedural due process claim accrued when he tendered his notice of
resignation on May 25, 2009, more than three years before the filing of the Complaint. See
Flaherty, 235 F.3d at 138. It is untimely.
5
Remigio does not require a contrary result. In that case, the plaintiff’s vehicle was impounded,
and he brought a procedural due process claim based on defendants’ failure to provide him with
a post-deprivation hearing. Remigio, 2005 WL 1950138, at *10. The court applied the
continuing violation exception to plaintiff’s claim, finding that each day the defendants failed to
hold a hearing was another instance of unlawful conduct, which was “part of a continuous injury
that was not simply a consequence of the [seizure of plantiff’s car].” Id. But in Remigio,
defendants could have held a post-deprivation hearing on the validity of the vehicle’s continued
retention and thereby remedied the deprivation. Here, by contrast, McGann “short circuited the
process by tendering [his] resignation. Once [he] did so and was no longer an employee,
[defendant] had neither authority nor reason to conduct a hearing on [his] discharge.” Finley, 79
F.3d at 1296.
10
B. The Merits
McGann’s Complaint is also deficient on the merits: McGann has neither stated a
plausible violation of his substantive or procedural due process rights, nor pled facts sufficient to
state a claim of municipal liability for such a violation.
1. Substantive Due Process
“For a substantive due process claim to survive a Rule 12(b)(6) dismissal motion, it must
allege governmental conduct that ‘is so egregious, so outrageous, that it may fairly be said to
shock the contemporary conscience.’” Velez v. Levy, 401 F.3d 75, 93 (2d Cir. 2005) (quoting
Cnty. of Sacramento v. Lewis, 523 U.S. 833, 847 n.8 (1998)). “While the measure of what is
conscience shocking is no calibrated yard stick,” Lewis, 523 U.S. at 847, the Second Circuit has
stated that “malicious and sadistic abuses of government power that are intended only to oppress
or to cause injury and serve no legitimate government purpose unquestionably shock the
conscience” because “[s]uch acts by their very nature offend our fundamental democratic notions
of fair play, ordered liberty and human decency.” Johnson v. Newburgh Enlarged Sch. Dist.,
239 F.3d 246, 252 (2d Cir. 2001).
Here, McGann alleges that his April 22, 2009 arrest “constituted conduct and behavior
that was arbitrary, irrational, and conscience shocking, and without regard for [his] constitutional
rights.” Compl. ¶ 36. To the extent McGann’s claim of an alleged disregard for constitutional
rights implies that probable cause was lacking for his arrest, McGann’s subsequent conviction on
the charge for which he was arrested precludes such a claim. Cameron v. Fogarty, 806 F.2d 380,
388–89 (2d Cir. 1986), cert. denied, 481 U.S. 1016 (1987).
Moreover, McGann’s claim of governmental conduct that shocks the conscience is
deficient for other reasons. McGann alleges that he was arrested by Captain Vincent Valerio,
11
who was “acting on behalf of the Department of Investigation for the New York City Housing
Authority.” Compl. ¶ 36. It is unclear whether McGann means to say that Captain Valerio
worked for the DOI, or that he was a DOC employee who had been deputized by the DOI for the
purpose of arresting McGann. See id. ¶¶ 3, 35–36. Either way, McGann fails to state a claim.
A public employer’s conduct constitutes a due process violation “only when a governmental
employer abuses some power unique to its role as a governmental entity.” Spencer v. City of
N.Y., No. 06 Civ. 2852 (KMW), 2007 WL 1573871, at *2 (S.D.N.Y. May 30, 2007) (citation
omitted); see also McClary v. O’Hare, 786 F.2d 83, 89 (2d Cir. 1986) (“We do not think that
improper actions taken by employers violate an employee’s substantive due process rights
simply because that employer is a government official.”). McGann offers no factual basis for his
suggestion that the DOI abused its authority in arresting, or helping to arrest, him for the charge
(grand larceny) on which he would later be convicted. See Cameron, 806 F.2d at 388–89. Nor,
on the facts as pled, did any DOC employee who may have assisted the DOI to effect that lawful
arrest thereby violate McGann’s substantive due process rights. See Collins v. City of Harker
Heights, 503 U.S. 115, 126 (1992) (“[T]he [Supreme] Court has always been reluctant to expand
the concept of substantive due process because guideposts for responsible decisionmaking in this
unchartered [sic] area are scarce and open-ended.”); cf. Lombardi v. Whitman, 485 F.3d 73, 80
(2d Cir. 2007) (describing “state created danger” case law, wherein the Second Circuit has found
substantive due process liability in instances where “a third-party’s criminal behavior harmed the
plaintiff after a government actor—always a law enforcement officer—enhanced or created the
opportunity for the criminal act through some interaction or relationship with the wrongdoer”
(emphasis added)).
McGann has, therefore, failed a state a substantive due process claim.
12
2. Procedural Due Process
“A procedural due process claim is composed of two elements: (1) the existence of a
property or liberty interest that was deprived and (2) deprivation of that interest without due
process.” Bryant v. N.Y. State Educ. Dep’t, 692 F.3d 202, 218 (2d Cir. 2012); see also Nnebe v.
Daus, 644 F.3d 147, 158 (2d Cir. 2011).
The parties agree that McGann had a property interest in his continued employment with
the DOC.6 See Pl. Br. 14; Def. Br. 10; see also Cleveland Bd. of Educ. v. Loudermill, 470 U.S.
532, 538–39 (1985); Otero v. Bridgeport Hous. Auth., 297 F.3d 142, 151 (2d Cir. 2002) (“public
employee who has a right not to be fired without ‘just cause’ . . . has a property interest in [his]
employment that qualifies for the protections of procedural due process” (citation omitted)). But
the parties part ways as to whether McGann was deprived of that property interest without due
process. McGann argues that the events described herein constituted a constructive discharge,
and that his due process rights were denied when he did not receive a hearing by the DOC prior
to or after his resignation. Compl. ¶ 39; Pl. Br. 14. McGann’s claim fails for two independent
reasons.
First, McGann has not pled a plausible claim of constructive discharge. To establish a
constructive discharge, a “plaintiff must demonstrate that his employer acted deliberately to
‘make his working conditions so intolerable that he is forced into an involuntary resignation.’”
Linden v. Sherman, 79 F. App’x 458, 459 (2d Cir. 2003) (summary order) (alterations omitted)
(quoting Lopez v. S.B. Thomas, 831 F.2d 1184, 1188 (2d Cir. 1987)); see also Miller v. Batesville
6
The Complaint actually refers to McGann’s loss of employment as a deprivation of his “liberty
interest.” See Compl. ¶ 39 (emphasis added). McGann’s subsequent briefing, however, makes
clear that his claim is based on an alleged deprivation of a property interest.
13
Casket Co., 312 F. App’x 404, 406 (2d Cir. 2009) (summary order) (citation omitted). Thus, the
operative question is whether “a reasonable person in the [plaintiff’s] shoes would have felt
compelled to resign.” Stetson v. NYNEX Serv. Co., 995 F.2d 355, 361 (2d Cir. 1993) (citation
omitted). Although McGann is correct that this is a question typically unsuited for resolution as
a matter of law, see Minetos v. City Univ. of N.Y., 875 F. Supp. 1046, 1052 (S.D.N.Y. 1995),
where the facts alleged are insufficient to permit a rational trier of fact to make such a finding, “a
claim of constructive discharge should be dismissed as a matter of law.” Spence v. Md. Cas. Co.,
995 F.2d 1147, 1156 (2d Cir. 1993) (citation omitted); see also Arroyo v. WestLB Admin., Inc.,
213 F.3d 625 (2d Cir. 2000) (summary order) (affirming grant of summary judgment where
plaintiff’s “allegations were insufficient to raise a triable issue of constructive discharge”).
McGann alleges that he had no choice but to resign because he had been “(1) stripped of
his personal firearm . . . ; (2) issued disciplinary charges without sufficient basis; (3) detained
and effectively arrested by his own employer . . . ; (4) suspended; and (5) stripped of his badge,
shield and work identification card.” Pl. Br. 12–13. But McGann’s first two grievances were the
result of his own misconduct, for which he accepted disciplinary sanctions. See Schmelzer Decl.
A.7 And the latter three grievances were the direct result of McGann’s criminal activity, for
7
To the extent McGann claims that the confiscation of his off-duty firearm(s), as opposed to his
loss of employment, was unrelated to his own misconduct, this still would not state a procedural
due process claim. See Boss v. Kelly, 306 F. App’x 649, 650 (2d Cir. 2009) (summary order)
(police officer has no property interest in carrying a gun, because under New York law,
“possession of a handgun license is a privilege, not a right”); see also Town of Castle Rock v.
Gonzales, 545 U.S. 748, 756 (2005) (“[A] benefit is not a protected entitlement if government
officials may grant or deny it in their discretion.”); Ramos v. N.Y.C. Dep’t of Corr., No. 05-CV223 (JFB)(LB), 2006 WL 1120631, at *8 (E.D.N.Y. Apr. 26, 2006) (DOC officer does not have
a right to possess DOC firearms qualification). As the Complaint itself makes clear, McGann
had the privilege, not the right, to possess an off-duty personal protection firearm. Compl. ¶ 12
(although an “officer’s shield and identification badge constitute a pistol permit or pistol license,
14
which he was later convicted of grand larceny in the second degree. See Schmelzer Decl. Ex. B;
see also N.Y. Civ. Serv. Law § 75(3) (authorizing 30-day suspension without pay while
disciplinary charges are pending). Thus, the facts alleged—as supplemented by the documents
fairly considered on this motion—reflect that McGann resigned as a result of his own
misconduct. Such allegations do not state a claim of constructive discharge. See Carmellino v.
District 20 of N.Y.C. Bd. of Educ., No. 03 Civ. 5942 (PKC), 2006 WL 2583019, at *4 (S.D.N.Y.
Sept. 6, 2006) (“[A]n employee is not constructively discharged when he or she resigns rather
than respond to disciplinary charges.”); Bailey v. N.Y.C. Bd. of Educ., 536 F. Supp. 2d 259, 266
(E.D.N.Y. 2007) (“[W]hen an employee resigns rather than respond to disciplinary charges, the
resignation cannot later be construed as a constructive discharge.”).8
Second, even assuming the dubious proposition that McGann was constructively
discharged, he was not denied due process. If he had wished to challenge his resignation as
coerced, McGann could have instituted an Article 78 proceeding in New York state court. See
N.Y. C.P.L.R. §§ 7801 et seq. “Where, as here, Article 78 gave the employee a meaningful
opportunity to challenge the voluntariness of his resignation, he was not deprived of due process
simply because he failed to avail himself of the opportunity.” Giglio v. Dunn, 732 F.2d 1133,
. . . [a] correctional officer does . . . need to obtain permission to purchase and carry a personal
protection firearm from the [DOC]”).
8
As the Second Circuit has noted, resignation in the face of potential disciplinary charges “is a
much-used, face-saving device designed to avoid the stigma of being fired.” See Giglio v. Dunn,
732 F.2d 1133, 1134 (2d Cir. 1984). McGann’s resignation may have served to avoid both this
stigma, and any other adverse consequences of potential disciplinary action following from a
criminal conviction. See, e.g., New York City Ch. § 1116(a) (public employee forfeits his
employment upon conviction for fraud, neglect of duty, or willful violation of law relative to
office); New York Pub. Officer’s Law § 30(1)(e) (employee’s public office deemed vacant upon
his conviction of a felony, or a crime involving a violation of his oath of office).
15
1135 (2d Cir. 1984); see also Hellenic Am. Neighborhood Action Comm. v. City of N.Y.
(“HANAC”), 101 F.3d 877, 881 (2d Cir. 1996) (“An Article 78 proceeding is adequate for due
process purposes even though the petitioner may not be able to recover the same relief that he
could in a § 1983 suit.”). In Giglio, a teacher claimed that he was coerced to resign by his
superiors, and argued that he was denied due process when no hearing was conducted prior to his
resignation. The Second Circuit rejected his claim, finding that because a pre-deprivation
hearing would have been impractical, and plaintiff’s right to a post-deprivation Article 78
hearing was meaningful, “the State satisfie[d] its constitutional obligations by providing the
latter.” Giglio, 732 F.2d at 1135. Here, a pre-deprivation hearing was similarly impractical,
because “[w]hen an employee resigns, the only possible dispute is whether the resignation was
voluntary or involuntary, and this cannot be determined in advance.” Id.; cf. Finley, 79 F.3d at
1296 (plaintiff who resigns before employer takes all the steps necessary to fire her cannot
complain of procedural due process violation because “the resignation effectively deprives the
employer of the opportunity to comply with the procedural obligations”).9 And McGann’s postdeprivation Article 78 rights were meaningful. See id.; HANAC, 101 F.3d at 881. McGann,
however, failed to avail himself of them. Thus, McGann was not denied due process.
9
As McGann correctly notes, “the availability of postdeprivation procedures will not, ipso facto,
satisfy due process” when a deprivation occurs pursuant to “established state procedures” rather
than “random, unauthorized acts by state employees.” HANAC, 101 F.3d at 880. That is
because a pre-deprivation hearing is not “impractical” in a structured, i.e., non-random, context.
Id. Thus, “the ‘random and unauthorized’ exception to the requirement of a pre-deprivation
hearing does not apply where the government actor in question is a high-ranking official with
‘final authority over significant matters.’” DiBlasio v. Novello, 344 F.3d 292, 302 (2d. Cir
2003). But McGann has offered nothing more than conclusory, speculative allegations that highranking officials were involved in the alleged deprivations. See Compl. ¶ 40(c) (“Policymakers
engaged in and/or tacitly condoned the deprivations.”); Pl. Br. 16 (“[T]he involvement of highranking officials is certainly plausible, if not likely.”).
16
3. Municipal Liability
“[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.” Torraco v. Port
Auth. of N.Y. and N.J., 615 F.3d 129, 140 (2d Cir. 2010) (citation omitted); see Monell v. Dep’t
of Soc. Servs., 436 U.S. 658, 694 (1978). The custom or policy requirement may be satisfied in
one of four ways:
The plaintiff may allege the existence of (1) a formal policy officially endorsed by
the municipality; (2) actions taken by government officials responsible for
establishing the municipal policies that caused the particular deprivation in
question; (3) a practice so consistent and widespread that it constitutes a custom
or usage sufficient to impute constructive knowledge of the practice to
policymaking officials; or (4) a failure by policymakers to train or supervise
subordinates to such an extent that it amounts to deliberate indifference to the
rights of those who come into contact with the municipal employees.
Bennerson v. City of N.Y., No. 03 Civ. 10182 (RWS), 2004 WL 902166, at *4 (S.D.N.Y. Apr.
28, 2004) (internal citations omitted).
Where, as here, a plaintiff has failed to state a violation of his constitutional rights by any
municipal employee, the City cannot be held liable. See Matican v. City of N.Y., 524 F.3d 151,
154 (2d Cir. 2008) (citing City of Los Angeles v. Heller, 475 U.S. 796, 799 (1986)). But, even
assuming that McGann’s rights had been violated in some way by a City employee, McGann has
failed to allege facts sufficient to show that such a violation was caused by a municipal policy or
custom. Rather, McGann’s allegations in this regard consist of a boilerplate recitation of three of
the four ways of establishing such a policy, unadorned by any factual allegations that would tend
to support these theories. See Compl. ¶ 40. Moreover, the alleged municipal policy is that the
City had a “custom or practice of depriving Plaintiff of [due process] rights.” Id. ¶ 40(a). That
17
is, it was not the City’s policy to violate the substantive and/or procedural due process rights of
its employees by any specific practice, or even to demonstrate a deliberate indifference to the
rights of City employees generally. Rather, it was allegedly the City of New York’s policy to
violate the constitutional rights of Clarence McGann, and only Clarence McGann. This
allegation is as implausible as it is conclusory.10 See Siino v. Crown House Realty Co., LLC, No.
12-CV-1905 (MKB)(VVP), 2012 WL 1450411, at *3 (E.D.N.Y. Apr. 25, 2012) (dismissing
claim that City had a policy of violating plaintiff’s rights). Therefore, McGann’s section 1983
claim against the City must be dismissed.
10
The Court notes that there has been some disagreement among district courts about whether
the Twombly pleading standard applies to Monell claims, or whether the more lenient standard,
set forth by the Second Circuit in Amnesty America v. Town of West Hartford, 361 F.3d 113, 130
n.10 (2d Cir. 2004), continues to apply post-Twombly. Compare Castilla v. City of N.Y., No. 09
Civ. 5446 (SHS), 2012 WL 3871517, at *4 (S.D.N.Y. Sept. 6, 2012) (applying Amnesty standard
to failure to train claim), with Triano v. Town of Harrison, No. 09 Civ. 6319 (KMK), 2012 WL
4474163, at *11 (S.D.N.Y. Sept. 26, 2012) (applying Twombly, because Amnesty is “difficult to
reconcile with Twombly’s subsequent pronouncement”). However, the Second Circuit appears to
have recently clarified the issue: “While it may be true that § 1983 plaintiffs cannot be expected
to know the details of a municipality’s training programs prior to discovery, see [Amnesty], this
does not relieve them of their obligation under Iqbal to plead a facially plausible claim.” Simms
v. City of N.Y., 480 F. App’x 627, 631 n.4 (2d Cir. 2012) (summary order) (affirming district
court decision applying Twombly); see also Missel v. Cnty. of Monroe, 351 F. App’x 543, 545
(2d Cir. 2009) (summary order) (citing Iqbal in affirming dismissal of Monell claim). In any
event, McGann’s pleading fails to state a claim under any standard. See Toliver v. City of N.Y.,
No. 10 Civ. 5806 (SHS)(JCF), 2012 WL 6849720, at *7–8 (S.D.N.Y. Sept. 25, 2012) (Report &
Rec.), adopted in full by 2013 WL 146088 (S.D.N.Y. Jan. 14, 2013) (recognizing dispute
regarding applicable standard, but finding that similar conclusory allegations fail even the
reduced pleading standard).
18
CONCLUSION
For the foregoing reasons, defendants' motion to dismiss is granted. The Clerk of Court
is direCted to terminate the motion pending at docket number 8, and to close this case.
SO ORDERED.
ftW1~. ~
Paul A. Engelmayer
United States District Judge
Dated: March 26, 2013
New York, New York
19
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