Gym Door Repairs, Inc. et al v. New York City Department of Education et al
Filing
70
OPINION re: 61 MOTION to Dismiss Amended Complaint. filed by Thomas Fanizzi, John T. Shea, The Board of Trustees of the New York City School Construction Authority, New York City Department of Education, Volkert Braren, The Cit y of New York, Chris Coyle, John Does 1-5, Dennis M. Walcott, Chris D'Alimonte, New York City School Construction Authority. Upon the conclusions set forth above, Defendants' motion to dismiss is granted in part and denied in part. Plaintiffs' First Amendment Claim survives, and NYCSCA remains a defendant. Defendants' other requests for dismissal are granted. It is so ordered. (As further set forth in this Order.) (Signed by Judge Robert W. Sweet on 6/22/2015) (ajs)
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
-------------------------------------------x
GYM DOOR REPAIRS,
SYSTEMS LLC,
INC. and SAFEPATH
Plaintiff,
12 Civ. 7387
OPINION
-againstNEW YORK CITY DEPARTMENT OF EDUCATION,
DENNIS M. WALCOTT, as Chancellor of the
New York City Department of Education,
NEW YORK CITY SCHOOL CONSTRUCTION
AUTHORITY, THE BOARD OF TRUSTEES OF THE
NEW YORK CITY SCHOOL CONSTRUCTION
AUTHORITY, THE CITY OF NEW YORK,
JOHN T. SHEA, as chief Executive Officer
of New York City Department of
Education Division of School Facilities,
VOLKERT BRAREN, as Director of Program
Management of NYCDOE, CHRIS COYLE, as
Construction Project Manager of New York
City Department of Education,
CHRIS D'ALIMONTE, as Borough Contract
Manager of New York City Department of
Education, THOMAS FANIZZI, as Manhattan
Maintenance Planner of New York City
Department of Education and Division of
School Facilities and JOHN DOE NUMBERS 1
through 5, whose names are not presently
unknown, as agents, servants and employees
of THE CITY OF NEW YORK,
Defendants.
------------------------------------------x
A P P E A RA N C E S:
Attorneys for Plaintiffs
FORD & HARRISON, LLP
100 Park Avenue, Suite 2500
New York, NY 10017
----------------------------------
By:
Eric Su, Esq.
Attorneys for Defendants
ZACHARY W. CARTER
Corporation Counsel of the City of New York
100 Church Street, Room 5-180
New York, NY 10007
By:
Scott Glotzer, Esq.
Sweet, D.J.
Defendants, New York City Department of Education
("DOE"), New York City School Construction Authority ("NYCSCA"),
The City of New York (the "City"), The Board of Trustees of
NYCSCA, Dennis M. Walcott (collectively "Municipal Defendants"),
and John T. Shea, Volkert Braren, Chris Coyle, Chris D'Alimonte,
Thomas Fanizzi, as employees of DOE (sued only in their official
capacities)
("Individual Defendants" and, together with
Municipal Defendants, "Defendants"), have moved to dismiss the
operative complaint of plaintiffs Gym Door Repairs,
Inc.
("GDRI") and Safepath Systems LLC ("SSL" and collectively,
"Plaintiffs"), pursuant to Rule 12(b) (6) of the Federal Rules of
Civil Procedure.
Upon the conclusions set forth below, the
motion is granted in part and denied in part.
2
Prior Proceedings
A detailed recitation of the facts of the underlying
case is provided in this Court's opinion dated November 3, 2014,
which addressed Defendants' motion for judgment on the pleadings
with respect to Plaintiffs' initial complaint.
See Gym Door
Repairs, Inc. v. New York City Dep't of Educ., No. 12 CIV. 7387,
2014 WL 5569970, at *l (S.D.N.Y. Nov. 3, 2014)
"November Opinion") .
(hereinafter, the
Familiarity with those facts is assumed.
In the November Opinion, this Court held that
Plaintiffs had adequately pled a First Amendment Retaliation
claim, but that they had failed to establish municipal liability
under Monell and its progeny in the initial complaint.
5569970, at **3-8.
2014 WL
The Court also noted that the Second Circuit
had affirmed its earlier dismissal of Plaintiffs' procedural and
substantive due process claims in the initial complaint.
*l.
Id. at
Subsequently Plaintiffs filed an Amended Complaint ("AC"),
on the basis of which Defendants filed the instant motion.
The AC contains two causes of action: violations of
Plaintiffs' procedural and substantive due process rights and a
claim of relation, in violation of 42 U.S.C.
3
§
1983; and
violation of Plaintiffs' First Amendment Rights.
AC
<][<][
90-101.
As noted above, the due process claims were previously
dismissed, and that dismissal was affirmed by the Second
Circuit.1
Consequently, this Opinion addresses the disputed
issues stemming from Plaintiff's First Amendment claim. 2
The Defendants' instant motion was heard and marked
fully submitted on March 25, 2015.
The Applicable Standard
Under Rule 12(b) (6), "a complaint must contain
sufficient factual matter, accepted as true, to 'state a claim
to relief that is plausible on its face.'"
556 U.S. 662, 678
(2009)
550 U.S. 544, 570
(2007))
Ashcroft v. Iqbal,
(quoting Bell Atl. Corp. v. Twombly,
Plaintiffs must allege sufficient
facts to "nudge[ ] their claims across the line from conceivable
to plausible."
Twombly, 550 U.S. at 570.
Though the court must
Defendants' motion to dismiss those claims, which appears to be unopposed by
Plaintiffs, is therefore granted.
Compare Defs.' Mem. in Supp't 15-17 with
Pls.' Mem. in Opp'n 4-5.
1
c Since Plaintiffs acknowledge they are not presently asserting a patent or
copyright infringement claim, the portion of Defendant's motion relating to
such a claim is not addressed.
See Pls.' Mem. in Opp'n 9 fn. 4; Defs.' Mem
in Supp't 17-18.
4
accept the factual allegations of a complaint as true, it is
"not bound to accept as true a legal conclusion couched as a
factual allegation."
Iqbal, 556 U.S. at 678
(quoting Twombly,
550 U.S. at 555).
Section 1983 "does not itself provide substantive
rights, but in fact offers a method for vindicating federal
rights elsewhere conferred."
Humphrey v. County of Nassau, 06-
CV-3682, 2009 WL 875534, at *17
(internal quotations omitted)
(E.D.N.Y. Mar. 30, 2009)
(citing Patterson v. County of
Oneida, 375 F.3d 206, 225 (2d Cir. 2004)); City of Oklahoma City
v. Tuttle, 471 U.S. 808, 816 (1985); Sykes v. James, 13 F.3d
515, 519 (2d Cir. 1993).
In general, "Section 1983 provides a
cause of action for the 'deprivation of any rights, privileges,
or immunities secured by the Constitution and laws' by any
person acting 'under color of any statute, ordinance,
regulation, custom, or usage, of any State or Territory.'"
Gomez v. Toledo, 446 U.S. 635,
638
(1980).
The Monell Elements Are Met
As noted in the November Opinion, Plaintiffs must
satisfy the elements under Monell v. Dep't of Soc. Servs. of
5
City of New York, 436 U.S. 658
against Defendants here.
(1978)
in order to make a claim
See November Opinion, 2014 WL 5569970,
at *5 (citing Friel v. Cnty. of Nassau,
(E.D.N.Y. 2013)
947 F. Supp. 2d 239, 256
(conducting a two-tier analysis whereby both the
First Amendment retaliation elements and the Monell requirements
must be met in a Section 1983 claim); Kilduff v. Rochester City
Sch. Dist., 10-CV-06387, 2014 WL 4659324, at *5-6 (W.D.N.Y.
Sept. 16, 2014)
(holding that a valid constitutional law claim
against a municipality requires both the elements of the claim
as well as the Monell requirements to survive a motion to
dismiss); cf. Segal v. City of New York, 459 F.3d 207, 219 (2d
Cir. 2006)
(holding that "[b]ecause the district court properly
found no underlying constitutional violation,
[it need not]
address the municipal defendants' liability under Monell" when
dismissing a Section 1983 claim).
As Individual Defendants are
sued in their official capacities, the Monell requirements apply
equally to them.
at *2
Odom v. Kerns,
(S.D.N.Y. Aug. 29, 2000)
56, 61 (2d Cir. 1998)
99 CIV. 10668, 2000 WL 1229849,
(citing Decarlo v. Fry, 141 F.3d
(a "claim against a municipal officer
acting in his official capacity is equivalent to a claim against
the municipality")).
6
To satisfy Monell: "a plaintiff must .
basic elements:
custom .
. show two
( 1) the existence of a municipal policy or
. that caused his injuries beyond merely employing
the misbehaving officers and (2) a causal connection-an
affirmative link-between the policy and the deprivation of his
constitutional rights."
App'x 36, 38
Harper v. City of New York,
(2d Cir. 2011)
424 F.
(internal quotations and citations
omitted).
In order to prove the existence of a policy or custom
under Monell, Plaintiffs must sufficiently plead one of the
following:
(1) the existence of a formal policy, officially
promulgated or adopted by a municipality, Monell, 436 U.S. at
690-91;
(2) that an official or officials responsible for
establishing final policy with respect to the subject matter in
question took action or made a specific decision which caused
the alleged violation of Plaintiffs' constitutional rights,
Pembaur v. City of Cincinnati, 475 U.S. 469,
(plurality opinion);
483-84
(1986)
(3) the existence of an unlawful practice
by subordinate officials so permanent and well settled as to
constitute "custom or usage," and proof that this practice was
so manifest or widespread as to imply the constructive
acquiescence of policymaking
official~:,
7
City of St. Louis v.
Praprotnik, 485 U.S. 112, 127-30 (1988)
Dep't~,
Sorlucco v. New York City Police
(plurality opinion);
971 F.2d 864,871
(2d
Cir. 1992); or, if liability is based on a claim of failure to
train or supervise, that
(4) "the failure to train amounts to
deliberate indifference to the rights of those with whom
municipal employees will come in contact."
Harris, 489 U.S. 378, 388
974 F.2d 293, 297-98
City of Canton v.
(1989); Walker v. City of New York,
(2d Cir. 1992).
Plaintiffs contend that they satisfy the second Monell
element, i.e., that the Individual Defendants, officials
responsible for establishing final policy with respect to the
subject matter in question, took action or made a specific
decision which caused the alleged violation of Plaintiffs'
constitutional rights.
Pls.' Mem. in Opp'n 6-7
(citing several
cases, including Monell and Pembaur, for the proposition that
municipal liability can arise due to the course of conduct of a
municipal decision-maker with final policy-making authority).
Federal courts do not apply a heightened pleading
standard in civil rights cases alleging municipal liability
under Section 1983.
Leatherman v. Tarrant Cnty. Narcotics
Intelligence & Coordination Unit, 507 U.S. 163, 168
8
(1993).
At
the pleadings stage, it is sufficient for the complaint to
allege facts suggesting that Defendants may be determined to
have final policymaking authority as a matter of law.
Saenz,
2008 WL 2735867, at *3; see Tekula v. Bayport-Blue Point Sch.
Dist., 295 F. Supp. 2d 224, 234
(E.D.N.Y. 2003); see generally
Villager Pond, Inc. v. Town of Darien, 56 F.3d 375, 378
Cir.1995)
( 197 4) )
(quoting Scheuer v. Rhodes,
(2d
416 U.S. 232, 235-236
(holding that the issue to consider is not whether a
plaintiff will ultimately prevail but whether the claimant is
entitled to offer evidence to support the claims).
However, even at the pleadings stage, a complaint must
contain allegations that the defendant-official had final policy
making authority in order to subject the municipality to
liability.
2011)
See Schwab v. Smalls, 435 F. App'x 37, 40
(2d Cir.
(affirming the district court's dismissal of a§ 1983
claim where the complaint contained little more than a "vague
assertion" that defendants had final policymaking authority).
It is ultimately the plaintiff's burden to establish, as a
matter of law, "that [an] official had final policymaking
authority in the particular area involved .
It does not
suffice for these purposes that the official has been granted
discretion in the performance of his duties.
9
Only those
-----------------------------
municipal officials who have final policymaking authority may by
their actions subject the government to
Jeffes v. Barnes, 208 F.3d 49, 57
§
1983 liability."
(2d Cir. 2000)
(internal
quotations and citations omitted).
Plaintiffs make several allegations regarding the
Individual Defendants' policy-making conduct generally, without
identifying the individual policy-maker in question.
For
example, Plaintiffs allege that "the Individual Defendants
directed contractors engaged to perform school construction and
improvement work
See AC
that:
~
. to 'never use'
63; see also AC
~~
Plaintiffs' services."
74-75, 77--80
(alleging, inter alia,
(1) a lower-level municipal employee was instructed not to
use Plaintiffs for SPS installation and maintenance;
(2)
Defendants instructed general contractors to not pay Plaintiffs;
(3) SPS was removed from Defendants' specifications).
This,
according Plaintiffs, amounted to Plaintiff's de facto
debarment.
See id. at
~
63.
Plaintiffs further allege that
Defendants organized trainings to teach electricians how to
bypass Plaintiffs' Safe Path System, in violation of regulations
prohibiting such bypasses.
Id. at
~
64.
Plaintiffs further
allege that Individual Defendants Coyle, D'Alimonte, Fanizzi had
instructed general contractors not use Plaintiffs' services.
10
See id. at
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