Cruz v. The City of New York et al

Filing 18

OPINION & ORDER: For the foregoing reasons, the Court grants defendants motion for partial judgment on the pleadings and dismisses, with prejudice, the Sixth Count of the Complaint for municipal liability against the City. The Clerk of Court is directed to terminate the motion pending at docket number 13. SO ORDERED. (As further set forth in this Order) (Signed by Judge Paul A. Engelmayer on 1/19/2016) (kl)

I.

Background
A.

Factual Background 1

According to the Complaint, since August 2011, Cruz has lived in Apartment 3F at 1391
Nelson Avenue, Bronx, New York. Compl. ¶ 9. Since he began living there, there have been
attempts to deliver unordered packages to his apartment, but he refused all deliveries. Id. ¶ 10.
On May 29, 2012, while Cruz was in his apartment, someone knocked on the door and
stated that there was a delivery from Federal Express. Id. ¶ 11. Cruz opened the door slightly
and stated that he had not ordered anything; however, while Cruz attempted to close the door,
Officer Donnelly and other officers pushed their way into the apartment, threw Cruz to the
ground, handcuffed him, and searched the apartment. Id. ¶¶ 12–13. Cruz remained handcuffed
for approximately two hours, after which he was brought to the 46th Precinct and charged with
criminal possession of a controlled substance. Id. ¶¶ 15–16. On October 4, 2012, the charges
were dismissed by the District Attorney. Id. ¶ 17.
B.

Procedural History

On March 26, 2015, Cruz filed the Complaint. Dkt. 1. The Complaint was brought
under 42 U.S.C. §§ 1983 and 1988 for violations of Cruz’s civil rights and the Constitutions of
New York and the United States. Specifically, Cruz brought claims for (1) false imprisonment,
(2) false arrest, (2A) 2 negligent treatment, (3) invasion of privacy, (4) civil rights violations, (5)
negligence, (6) municipal liability, and (7) battery.

1

The Court’s account of the facts is drawn from the Complaint (“Compl.”), Dkt. 1. For the
purpose of resolving the motion by the defendants for judgment on the pleadings, the Court
assumes all well-pled facts in the Complaint to be true, drawing all reasonable inferences in
favor of the plaintiff. See Hayden v. Paterson, 594 F.3d 150, 160 (2d Cir. 2010).
2

The Complaint incorrectly lists this count, like the one for false arrest, as “Second Count.” To
maintain the numbering alignment with the counts that follow, the Court labels this count 2A.
2

On July 13, 2015, defendants answered. On November 25, 2015, defendants moved
under Rule 12(c) for judgment on the pleadings, partially dismissing the complaint against the
City “on the grounds that plaintiff has failed to state a claim against the City of New York
pursuant to §1983,” Dkt. 13, and filed a supporting memorandum of law, Dkt. 15 (“Defs. Br.”).
On December 7, 2015, Cruz filed a memorandum of law opposing this motion, Dkt. 16 (“Pl.
Br.”), and on December 14, defendants filed a reply, Dkt. 17 (“Defs. Reply”).
II.

Legal Standards
A.

Motions for Judgment on the Pleadings

Federal Rule of Civil Procedure 12(c) provides that “[a]fter the pleadings are closed—but
early enough not to delay trial—a party may move for judgment on the pleadings.” A motion for
judgment on the pleadings is governed by “the same standard” as a motion to dismiss under Rule
12(b)(6). Hayden v. Paterson, 594 F.3d 150, 160 (2d Cir. 2010) (quoting Johnson v. Rowley,
569 F.3d 40, 43 (2d Cir. 2009) (per curiam)); accord L–7 Designs, Inc. v. Old Navy, LLC, 647
F.3d 419, 429 (2d Cir. 2011). Thus, on such a motion, the Court accepts all of the non-movant’s
factual allegations as true and draws all reasonable inferences in the non-movant’s favor. Bell
Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007).
To survive a motion for judgment on the pleadings, a party must plead sufficient factual
allegations “to state a claim for relief that is plausible on its face,” id. at 570, meaning that the
complaint must include “factual content that allows the court to draw the reasonable inference
that the defendant is liable for the misconduct alleged,” Ashcroft v. Iqbal, 556 U.S. 662, 678
(2009). Further, “[t]hreadbare recitals of the elements of a cause of action, supported by mere
conclusory statements, do not suffice.” Id. “A grant of a motion pursuant to Rule 12(c) is proper
‘if, from the pleadings, the moving party is entitled to judgment as a matter of law.’” Dargahi v.

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Honda Lease Trust, 370 Fed. App’x 172, 174 (2d Cir. 2010) (summary order) (quoting Burns
Int’l Sec. Servs., Inc. v. Int’l Union, 47 F.3d 14, 16 (2d Cir. 1995) (per curiam)).
“On a 12(c) motion, the court considers ‘the complaint, the answer, any written
documents attached to them, and any matter of which the court can take judicial notice for the
factual background of the case.’” L–7 Designs, Inc., 647 F.3d at 422 (quoting Roberts v.
Babkiewicz, 582 F.3d 418, 419 (2d Cir. 2009) (per curiam)). The Court may also review any
document incorporated by reference in one of the pleadings. Sira v. Morton, 380 F.3d 57, 67 (2d
Cir. 2004). Finally, the Court may consider a document not specifically incorporated by
reference but on which the complaint relies and which is integral to it. See Chambers v. Time
Warner, Inc., 282 F.3d 147, 153 (2d Cir. 2002).
B.

Alleging 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.” Wray v. City of New
York, 490 F.3d 189, 195 (2d Cir. 2007) (quoting Batista v. Rodriguez, 702 F.2d 393, 397 (2d Cir.
1983)) (internal quotation marks omitted).
There are four ways to establish the existence of an official policy or custom, the first
element of a Monell claim. A plaintiff may plead that the constitutional violation was caused by:
(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, although not expressly authorized, constitutes a custom or usage of which a
supervising policy-maker must have been aware; or (4) a failure by policymakers
to provide adequate training or supervision to subordinates to such an extent that it
amounts to deliberate indifference to the rights of those who come into contact with
the municipal employees.

4

Brandon v. City of New York, 705 F. Supp. 2d 261, 276–77 (S.D.N.Y. 2010) (citations
omitted); see also Spears v. City of New York, No. 10 Civ. 3461 (JG), 2012 WL 4793541, at *11
(E.D.N.Y. Oct. 9, 2012).
Plaintiffs alleging the existence of a municipal policy or custom often point to the filing
of other complaints and/or lawsuits bringing similar claims. Courts considering Monell claims
have assigned different levels of significance to the filing of prior lawsuits. Some have
suggested that non-adjudicated claims are irrelevant. See Morris v. City of New York, No. 12 Civ.
3959 (JG), 2013 WL 5781672, at *11 (E.D.N.Y. Oct. 28, 2013) (“The fact that two of the
defendants as well as a non-defendant supervising officer have had civil suits brought against
them in the past that resulted in settlements is not even evidence of wrongdoing, let alone that the
City has a custom or policy that fosters or results in wrongdoing.”). But others have held that
prior complaints are relevant insofar as they may put a municipality on notice of possible or
actual constitutional violations. See Edwards v. City of New York, No. 14 Civ. 10058 (KBF),
2015 WL 5052637, at *6 n.3 (S.D.N.Y. Aug. 27, 2015) (noting that although “[i]t is certainly not
always the case that the fact of a series of suits alleging similar claims supports a Monell
claim . . . the point is one of notice”).
III.

Discussion
The first element of a Monell claim is the existence of an official policy or custom. The

Sixth Count of the Complaint alleges that the City is liable for the actions of the individual police
officers because the officers’ actions “were carried out by the aforementioned individual
defendants in their capacities as police officers and officials pursuant to the customs, policies,
usages, practices, procedures, and rules of [the City] and the New York City Police Department
[(‘N.Y.P.D.’)], all under the supervision of ranking officers of said department.” Compl. ¶ 52.
Specifically, the customs alleged “include, but are not limited to, the following unconstitutional
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practices: a) fabricating evidence against innocent persons erroneously arrested; b) imprisoning
innocent persons wrongfully apprehended; [and] c) [i]mprisoning innocent persons
notwithstanding the existence of credible evidence which exonerates the accused of any criminal
wrongdoing.” Id. ¶ 53.
Putting aside non-cognizable conclusory statements, see Iqbal, 556 U.S. at 678, the
Complaint principally supports its Monell claim by alleging that “unconstitutional customs and
practices may be inferred from repeated instances of similar wrongful conduct.” See Compl.
¶ 54. The Complaint therefore appears to allege the element of an official policy or custom on
the theory of a consistent and widespread practice; the Complaint does not, in contrast, plead
facts tending to suggest or support the existence of a formal policy endorsed by the City, an
action taken by a government official with authority to make municipal policy, or of a failure by
policymakers to provide adequate training or supervision.
Cruz’s allegation of repeated instances of similar wrongful conduct are supported in the
Complaint by citation to eight civil rights actions filed against the City in the Southern and
Eastern Districts of New York. See id. Other than the case name and case number, the
Complaint provides no information about the cases it cites, no description of evidence adduced
in those cases, and no explanation of how the cases, individually or taken together, demonstrate a
consistent and widespread practice sufficient to constitute an unlawful policy or custom. The
Court, nonetheless, has reviewed the publicly available dockets sheets for the cases cited by

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Cruz, 3 as well as pertinent case filings for those cases, 4 including, where available, the
complaints and amended complaints, dispositions on dispositive motions, and stipulations and
orders of dismissal and/or settlement. 5
The cases were filed between 2001 and 2006. All brought claims related to, inter alia,
false arrest and malicious prosecution of the respective plaintiffs, who were arrested and

3

Douglas v. City of New York, No. 03 Civ. 6475 (S.D.N.Y.); Flood v. City of New York, No. 03
Civ. 10313 (S.D.N.Y.); Richardson v. City of New York, 02 Civ. 3651 (E.D.N.Y.); Stewart v.
City of New York, 05 Civ. 2375 (S.D.N.Y.) (consolidated with 06 Civ. 15490); Taylor v. City of
New York, 01 Civ. 5750 (E.D.N.Y.); Vasquez v. City of New York, No. 05 Civ. 3552 (E.D.N.Y.);
Williams v. City of New York, 05 Civ. 4013 (S.D.N.Y.); and Burton v. City of New York, No. 06
Civ. 6884 (S.D.N.Y.).
4

The filings are generally available on the Southern District’s and Eastern District’s Electronic
Case Filing system. Records for Flood were obtained in hard copy from the Records office for
closed cases at the Southern District of New York Courthouse at 500 Pearl Street, New York,
NY. Records for Douglas, however, are temporarily unavailable, according to the Records clerk,
because they are in the process of being archived out-of-state. The Douglas case docket sheet
reveals, however, that the case was brought in August 2003 and discontinued before resolution
on the merits. The Court is confident that its decision would not be altered by reviewing the
underlying filings in Douglas.
5

The Court here provides a general overview of the cases, with specific citations only where
quoting directly from specific documents or discussing issues unique to particular cases. The
Court may properly consider the case docket sheets and filings because Cruz’s Complaint, in
citing the cases in support of his Monell claim, relies on them, see Chambers, 282 F.3d at 153,
and because they are public court documents of which the Court may take notice, for the limited
purposes of establishing that that the suits were filed, how they were disposed, and for the fact of
the allegations made but not for the truth of what the allegations asserted. See Glob. Network
Commc’ns, Inc. v. City of New York, 458 F.3d 150, 157 (2d Cir. 2006) (“A court may take
judicial notice of a document filed in another court not for the truth of the matters asserted in the
other litigation, but rather to establish the fact of such litigation and related filings.” (quoting
Int’l Star Class Yacht Racing Ass’n v. Tommy Hilfiger U.S.A., Inc., 146 F.3d 66, 70 (2d Cir.
1998)) (internal quotation marks omitted)).
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charged, in all but one of the cases, with drug-related crimes. 6 The arrests and charges were all
the result of so-called “buy-and-bust” operations 7 conducted by the N.Y.P.D.
In addition to claims against individual officers, all of the cases alleged municipal
liability against the City of New York. However, in two cases, the claims against the City were
dropped by the plaintiff before the case was resolved. 8 The Monell allegations are generally
similar across the cases cited. Including those cases in which the municipal liability claims were
dropped by the plaintiffs, four cases contained a nearly identical allegation to Cruz’s regarding
the custom or practice of “imprisoning innocent persons notwithstanding the existence of
credible evidence which exonerates the accused of any criminal wrongdoing.” Compl. ¶ 53(c). 9
In addition, five cases contained allegations similar to “fabricating evidence against innocent
persons erroneously arrested,” and four had allegations similar to “imprisoning innocent persons
wrongfully apprehended,” Compl. ¶¶ 53(a) & (b); in the cases cited, however, these customs or
practice were alleged to be specific to those arrested “during buy-and-bust operations.” 10 Like
the present Complaint, a number of the cases rely on citations to prior lawsuits, specifically, the

6

The plaintiff in Williams was charged with tampering with physical evidence and disorderly
conduct.
7

A buy-and-bust is a tactic by which an “officer, posing as a narcotics user, purchases the drugs,
and the seller is arrested shortly thereafter.” Ayala v. Speckard, 131 F.3d 62, 64 (2d Cir. 1997).

8

See Taylor, 01 Civ. 5750, Dkt. 20 (plaintiff conceded claims against City at oral argument on
defendants’ summary judgment motion); Burton, No. 06 Civ. 6884, Dkt. 6 (plaintiff voluntarily
dismissed municipal liability claim).
9

E.g., Williams, 05 Civ. 4013, Dkt. 1 ¶ 66(c) (using the word “arresting” instead of
“imprisoning”).
10

E.g., id., ¶¶ 66(a) & (b) (using the word “arresting” instead of “imprisoning”).
8

same ones cited here, to attempt to support an inference that such customs or policies exist; 11
none point to other specific facts in support of their allegations of the existence of the customs or
practices identified.
All of the cases cited settled short of adjudication on the merits. In each, the stipulation
and order of settlement contained language to the effect that the settlement should not be deemed
an admission of wrongdoing, and importantly, that “[n]othing contained herein shall be deemed
to constitute a policy or practice of the City of New York or the New York City Police
Department.” 12
Cruz’s allegations, relying on citations to these cases, fall far short of establishing a
custom sufficient to support a Monell claim. To be sure, “an act performed pursuant to a
‘custom’ that has not been formally approved by an appropriate decisionmaker may fairly
subject a municipality to liability on the theory that the relevant practice is so widespread as to
have the force of law.” Bd. of Cty. Comm’rs of Bryan Cty. v. Brown, 520 U.S. 397, 404 (1997).
But the lawsuits cited by Cruz, without much more, do not plausibly suggest a “practice . . . so
widespread as to have the force of law.” Id.
Judge Karas’s recent decision in Tieman v. City of Newburgh, No. 13 Civ. 4178 (KMK),
2015 WL 1379652 (S.D.N.Y. Mar. 26, 2015), is instructive. In Tieman, the complaint alleged
that the City of Newburgh “‘has a policy or practice of using excessive force when effectuating
arrests, and fails to train and/or discipline its employees to prevent violations of arrestee’s [sic]
constitutional rights.’” Id. at *14. The complaint cited what it described as “an extensive history
of lawsuits and other complaints,” alleging that at least nine excessive-force suits were filed

11

See, e.g., Vasquez, No. 05 Civ. 3552, Dkt. 1, ¶ 69 (citing Douglas, Flood, Richardson,
Stewart, and Taylor).
12

See, e.g., Williams, 05 Civ. 4013, Dkt. 20, ¶ 5.
9

against the city in the preceding five years—including five that involved, as the plaintiff’s case
did, allegations of unnecessary dog bites. Id. at *15. It further alleged that the City was on
notice of the excessive force problem because of comments from citizens at public forums and
because of a consulting group’s report on the police department’s practices. Id. at *3. Judge
Karas, however, held that these pleadings were insufficient to suggest a widespread custom or
practice. Id. at *17. He noted that none of the lawsuits cited by the plaintiff had “result[ed] in an
adjudication of liability.” Id. (alteration in original) (quoting Walker v. City of New York, No. 12
Civ. 5902 (PAC), 2014 WL 1259618, at *3 (S.D.N.Y. Mar. 18, 2014)). “Simply put,” Judge
Karas concluded, “the fact that there were allegations of thirteen instances of excessive force
during arrests over four [or five] years (none of which involved findings or admissions of
culpability) during which hundreds, if not thousands, of arrests were made does not plausibly
demonstrate that the use of excessive force during arrest was so frequent and pervasive to
constitute a custom.” Id.
The same logic is decisive here. None of the lawsuits cited resulted in an adjudication or
admission of liability and the number of suits does not suggest a pervasive illegal practice. See
Walker, 2014 WL 1259618, at *3 (“The paltry number of complaints (none resulting in an
adjudication of liability), spread over a period so long in a city so large, hardly suggests the
frequency or pervasiveness of the purported custom that is required to state a Monell claim.”).
Indeed, Cruz’s claim of a municipal “custom” is even weaker than in Tieman. While the length
of time spanned by the cited lawsuits (six years) is about the same as in Tieman, there is a
significant gap—nine or more years—between the time the cited cases were filed and Cruz’s
initiating his suit. Furthermore, eight cases cited from a municipality (New York) far bigger than
Newburgh, makes the number of cited cases particularly inadequate to demonstrate plausibly a

10

municipal custom. See also Calderon v. City of New York, No. 14 Civ. 1082 (PAE), 2015 WL
5802843, at *15 (S.D.N.Y. Oct. 5, 2015) (dismissing a Monell claim that cited 16 cases against
the City), reconsideration in part granted on other grounds, 2015 WL 6143711 (S.D.N.Y. Oct.
19, 2015).
The Court therefore holds that Cruz has failed to plausibly plead that the City has an
official policy or custom, as demonstrated by a widespread and consistent practice, which led to
the alleged violations of Cruz’s federally protected rights. 13
Cruz’s arguments against dismissal are easily rejected. First, Cruz attempts to recharacterize the relevant “policy and procedure” as the execution of “controlled deliveries of . . .
narcotics in packages delivered to various apartments.” Pl. Br. 6. 14 Cruz’s Complaint, however,
makes no mention of a policy of “controlled deliveries”; he cannot add such allegations in an
opposition brief. See Olde Monmouth Stock Transfer Co., Inc. v. Depository Trust & Clearing
Corp., 485 F. Supp. 2d 387, 393 (S.D.N.Y. 2007) (“It is long-standing precedent in this circuit
that parties cannot amend their pleadings through issues raised solely in their briefs.” (quoting
Fadem v. Ford Motor Co., 352 F. Supp. 2d 501, 516 (S.D.N.Y. 2005)) (alteration and internal
quotation marks omitted)); Lazaro v. Good Samaritan Hosp., 54 F. Supp. 2d 180, 184 (S.D.N.Y.

13

Because the Court holds that Cruz has failed to adequately plead the first element of a Monell
claim, the Court does not reach defendants’ argument that Cruz also fails to adequately plead the
second element, to wit, that the alleged policy or custom caused the denial of Cruz’s federal or
constitutional rights. See Defs. Br. 6–7; Defs. Reply 3–4; see also Pl. Br. 8.
14

Typically, a “controlled delivery” occurs when law enforcement has “lawfully
discover[ed] . . . contraband in transit[, and] . . . rather than simply seizing the contraband or
destroying it, [they deliver] the container to its consignee, allowing the container to continue its
journey to the destination contemplated by the parties. The person dealing in the contraband can
then be identified upon taking possession of and asserting dominion over the container.” United
States v. Singh, 811 F.2d 758, 760 (2d Cir. 1987) (quoting Illinois v. Andreas, 463 U.S. 765, 769
(1983)).
11

1999) (“[I]t is axiomatic that the Complaint cannot be amended by the briefs in opposition to a
motion to dismiss.” (quoting O’Brien v. Nat’l Property Analysts Partners, 719 F. Supp. 222, 229
(S.D.N.Y. 1989)) (internal quotation marks omitted)). 15
Second, Askins v. Doe No. 1, 727 F.3d 248 (2d Cir. 2013), on which Cruz relies, Pl. Br.
6–7, does not rescue Cruz’s claim. “Establishing the liability of the municipality requires a
showing that the plaintiff suffered a tort in violation of federal law committed by the municipal
actors and, in addition, that their commission of the tort resulted from a custom or policy of the
municipality.” Id. at 253 (emphasis added). The key issue in Askins was whether a claim for
municipal liability under § 1983 could be maintained where the plaintiff did not procure a
judgment, or even could not pursue a claim, against the particular municipal actors who
committed the alleged federal law tort. See id. at 252–55. In a portion of the opinion highlighted
by Cruz, the Second Circuit ruled:
But where the plaintiff has brought a timely suit against the municipality and has
properly pleaded and proved that he was the victim of the federal law tort
committed by municipal actors and that the tort resulted from an illegal policy or
custom of the municipality, the fact that the suit against the municipal actors was
untimely, or that the plaintiff settled with them, or abandoned the suit against them,
is irrelevant to the liability of the municipality.
Id. at 254.
Cruz does not explain why this passage supports his opposition to the present motion. If
his intent is to discount the significance of the fact that the cases he cites in support of his Monell
claim all settled, his reliance is in error. The above passage holds that a plaintiff need not
adjudicate a claim, or recover, against the particular municipal actor alleged to have committed
the federal law tort to establish liability against the municipality. That is a separate issue from

15

Moreover, the cases cited by Cruz in support of his Monell claim alleged actions and practices
related to buy-and-bust operations, not controlled deliveries.
12

whether a plaintiff can allege specific facts, such as prior lawsuits, that make plausible the
existence of a widespread and consistent practice—equivalent to a custom or policy—that caused
the municipal actor’s federal law tort. Where a prior lawsuit against a municipality or municipal
actor was settled—especially where the settlement contains a denial of wrongdoing—and did not
produce an adjudication establishing liability or wrongdoing, the prior lawsuit does not
demonstrate that the prior unlawful action took place, and therefore is less able to support the
allegation that there is a widespread practice or custom that violates federal law. Here, Cruz fails
to cite to even a single instance in which the City, or an individual acting on its behalf, has been
found to have committed a federal law tort along the lines alleged by Cruz. This significantly
undermines the plausibility of his contention that the officers here were acting pursuant to an
extant illegal practice, policy, or custom.
Third, and finally, Cruz argues that the motion should not be granted because the doctrine
of qualified immunity does not apply to municipalities. Pl. Br. 7–8. However, defendants’
motion does not invoke or rely on qualified immunity, but rather Cruz’s failure to state a claim
against the City under § 1983.
CONCLUSION
For the foregoing reasons, the Court grants defendants’ motion for partial judgment on
the pleadings and dismisses, with prejudice, the Sixth Count of the Complaint for municipal
liability against the City. The Clerk of Court is directed to terminate the motion pending at
docket number 13.

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