Raymond et al v. The City of New York et al

Filing 60

MEMORANDUM OPINION AND ORDER: re: 48 AMENDED MOTION to Dismiss the Amended Complaint filed by Police Commissioner William J. Bratton, NYPD Commanding Officer of Patrol Services Carlos M Gomez, Mayor of the City of New York Bill deBlasio, New York City Police Department, NYPD Chief of Department James P. O'Neill, City of New York. For the foregoing reasons, Defendants' motion to dismiss the Amended Complaint is granted. Plaintiffs may make a motion for leave to replead the claims and requests for relief asserted in their Second, Fourth, Fifth, Sixth, Eighth, Tenth, Twelfth, Fourteenth, and Seventeenth Causes of Action. Any such motion must be filed by March 27, 2017, and must be accompanied by a proposed Second Amended Complaint and a memorandum of law. Failure to make such a timely motion, or denial of the motion as futile, may result in dismissal of the Amended Complaint in its entirety, without further advance notice. This Memorandum Opinion and Order resolves Docket Entry Nos. 32 and 48. SO ORDERED., ( Motions due by 3/27/2017.) (Signed by Judge Laura Taylor Swain on 3/06/2017) (ama)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
------------------------------------------------------------x
EDREWEENE RAYMOND, ADHYL POLANCO,
PEDRO SERRANO, SANDY GONZALEZ,
RITCHIE BAEZ, JULIO DIAZ, FELICIA
WHITELY, ROMAN GORIS, DERICK WALLER,
KAREEM ABDULLAH, OLAYOKUN
OLAGOKE, and WIDMARC PIERRE, individually
and on behalf of a class of all others similarly
situated,
Plaintiffs,
-v-

No. 15-CV-6885-LTS-HBP

THE CITY OF NEW YORK, MAYOR OF THE
CITY OF NEW YORK BILL DE BLASIO, in his
individual and official capacity, FORMER POLICE
COMMISSIONER WILLIAM J. BRATTON, in his
individual capacity, POLICE
COMMISSIONER JAMES P. O’NEILL, in
his individual and official capacity, NYPD CHIEF
OF DEPARTMENT CARLOS GOMEZ,
in his individual and official capacity, and
BUREAU CHIEF NYPD COMMANDING
OFFICER OF PATROL SERVICES TERENCE
MONAHAN, in his official capacity,1
Defendants.
------------------------------------------------------------x
MEMORANDUM OPINION AND ORDER
Plaintiffs Edreweene Raymond (“Raymond”), Adhyl Polanco (“Polanco”), Pedro

1

In light of personnel changes that have occurred since the initiation of the abovecaptioned matter and the motion practice at issue in this Memorandum Opinion
and Order, pursuant to Federal Rule of Civil Procedure 25(d), certain current
office holders are substituted as official-capacity parties for the individuals who
formerly held these positions within the New York City Police Department
(“NYPD”). The former office holders continue to be reflected as individualcapacity defendants. The Clerk of Court is directed to amend the case caption
accordingly.

RAYMOND MTD.WPD

VERSION MARCH 6, 2017

1

Serrano (“Serrano”), Sandy Gonzalez (“Gonzalez”), Ritchie Baez (“Baez”), Julio Diaz (“Diaz”),
Felicia Whitely (“Whitely”), Roman Goris (“Goris”), Derick Waller (“Waller”), Kareem
Abdullah (“Abdullah”), Olayokun Olagoke (“Olagoke”), and Widmarc Pierre (“Pierre”),
(collectively, "Plaintiffs") bring this civil rights action, individually and on behalf of a class of
all others similarly situated, pursuant to New York Labor Law § 215-a; 42 U.S.C. §§ 1981, 1983,
1985, and 1986; New York Executive Law §§ 290, 296; New York City Local Law 59 of 1986
as amended by Local Rule 39 of 1991, § 8-207; and New York State Constitution Article 1, § 8,
against Defendants the City of New York ("the City"), Mayor of the City of New York Bill de
Blasio ("Mayor de Blasio"), Former Police Commissioner William J. Bratton (“Former
Commissioner Bratton”), Police Commissioner James P. O'Neill ("Commissioner O’Neill"),
NYPD Chief of Department Carlos M. Gomez ("Chief Gomez"), and Bureau Chief NYPD
Commanding Officer of Patrol Services Terence Monahan ("Chief Monahan"), (Mayor de
Blasio, Former Commissioner Bratton, Commissioner O’Neill, Chief Gomez, and Chief
Monahan are, together, referred to herein as the “Individual Defendants”) (collectively,
"Defendants"). In a 17-count Amended Complaint, Plaintiffs claim that the NYPD maintains
illegal arrest and citation quotas that are focused disproportionately on areas in which minorities
reside, that minority officers are pressured to meet the quotas, and that minority officers suffer
adverse and retaliatory employment actions when they refuse to enforce or complain about the
quotas as discriminatory. (Docket Entry No. 31.) Defendants now move, pursuant to Federal
Rules of Civil Procedure 12(b)(1) and 12(b)(6), to dismiss all of Plaintiffs' claims against them.
(Docket Entry Nos. 32 and 48.)
The Court has jurisdiction of this action pursuant to 28 U.S.C. §§ 1331, 1343, and
1367.
RAYMOND MTD.WPD

VERSION MARCH 6, 2017

2

The Court has considered the parties' submissions carefully. For the following
reasons, Defendants’ motion is granted and the Amended Complaint is dismissed. Plaintiffs may
make a motion for leave to replead the claims and requests for relief asserted in their Second,
Fourth, Fifth, Sixth, Eighth, Tenth, Twelfth, Fourteenth, and Seventeenth Causes of Action. Any
such motion must be filed by March 27, 2017, and must be accompanied by a proposed Second
Amended Complaint and a memorandum of law. Failure to make such a timely motion, or
denial of the motion as futile, may result in dismissal of the Amended Complaint in its entirety,
without further advance notice.
BACKGROUND
The following facts are alleged in the Amended Complaint or drawn from
documents annexed thereto. Plaintiffs are Latino and African-American police officers
employed by the NYPD2 who allege that, as a result of the imposition of illegal quotas and
illegal penalties by Defendants that have had disparate effects on Latino and African-American
police officers, they have been subject to negative employment actions including negative
evaluations; lost compensation, overtime, and vacation days earned; punitive postings and
punitive transfers; denial of upgrades, promotions, overtime, and accrued time earned; and
discrimination in their employment on the basis of race and national origin. (Am. Compl. ¶ 2.)
2

As police officers employed by the NYPD, Plaintiffs are members of the
Patrolmen's Benevolent Association (the "Union") and are subject to a collective
bargaining agreement. See Collective Bargaining Agreements between the City
of New York and the Union, available at
https://www1.nyc.gov/assets/olr/downloads/pdf/collectivebargaining/cbu79-polic
e-patrolmens-benevolent-association-080106-to-073110.pdf (last accessed Feb.
12, 2017) and
http://www1.nyc.gov/assets/olr/downloads/pdf/collectivebargaining/2010-2012-P
BA-NYC-Impasse-Award.pdf (last accessed Mar. 6, 2017); see also Pls. Opp. Br.,
Docket Entry No. 38, at 25.

RAYMOND MTD.WPD

VERSION MARCH 6, 2017

3

Plaintiffs and the prospective class members allege they “are disproportionately affected by the
imposition of illegal quotas and the punitive consequences of the failure to meet the quotas, as
opposed to white police officers, because” Plaintiffs, as “minorities working in neighborhoods
dominated by minority residents, are unwilling to perform racially discriminatory and
unwarranted enforcement actions against the minority community,” leading to a “racially unfair
and unreasonable performance evaluation system and unfair and unwarranted disciplinary
actions and penalties to which the [P]laintiffs are subjected and to which white police officers
are not subjected.” (Id. at ¶ 23.)
The City is a municipal corporation and is the employer of the named Plaintiffs
and the prospective class members, as well as the individually named Defendants. (Id. at ¶ 42.)
In his capacity as mayor since January 2014, Defendant Mayor de Blasio "routinely met with the
Police Commissioner[,] Deputy Police Commissioners[,] and other high-ranking members of the
NYPD to set policy and make recommendations relating to the policies, administration,
practices, customs[,] and procedure[s] of the NYPD and relating to the disciplinary system and
implementation of penalties within the NYPD." (Id. at ¶ 44.) In his capacity as Commissioner,
Bratton was the “principal administrator” of the NYPD, “responsible for the application of the
NYPD’s enforcement and administrative polic[i]es[,] including its internal investigatory and
disciplinary process.” (See id. at ¶ 45.)3 As Chief of Department, O’Neill was “the highest

3

The Court takes judicial notice that Defendant O’Neill is now the Commissioner
of the NYPD, Defendant Bratton having resigned the post. At the time of
Plaintiffs’ pleading and Defendants’ motion, Bratton was Police Commissioner.
O’Neill succeeded him as Police Commissioner in September 2016. The case
caption has been updated to reflect the names of the current officeholders named
as official-capacity defendants and to retain Former Commissioner Bratton as a
defendant in his individual capacity. See supra n. 1.

RAYMOND MTD.WPD

VERSION MARCH 6, 2017

4

ranking non-civilian . . . uniformed police officer” and “in charge of all NYPD operations
answering only to the Police Commissioner and the Mayor.”4 (See id. at ¶ 46.) As Chief of
Patrol, Gomez was the “NYPD’s commanding officer of patrol services,” including the
precincts, and “exercised supervisory control over the plaintiffs at all relevant times and
participated in making and executing the policy and practices complained of herein.”5 (See id. at
¶ 47.) The Amended Complaint alleges that the Individual Defendants knew or should have
known of the customs, practices, and policies described in the Amended Complaint, including
but not limited to the maintenance of the illegal quota system by the NYPD and its racially
discriminatory effect on the minority community and minority officers including the Plaintiffs
and "condoned, ratified and/or authorized” such practices, policies, and conduct. (See id. at ¶ ¶
44-47.)
Plaintiffs allege that, “[o]ver the past decade” and through the present, “the
NYPD has pursued an unofficial policy of directing, instructing, compelling and mandating its
employees to perform a mandatory number of arrests, issue a mandatory number of summons or
write a mandatory number of tickets," or quotas, "over a defined period of time," as a
“performance standard” for employees, despite official statements that the NYPD does not
maintain such quotas. Id. at ¶ 3. Promotion or job security in the NYPD is alleged to depend on

4

At the time of Plaintiffs’ pleading and Defendants’ motion, O’Neill was Chief of
Department. Gomez succeeded him as Chief of Department in September 2016,
and the case caption has been updated to reflect the names of the current
officeholders named as official-capacity defendants. See supra n. 1.

5

At the time of Plaintiffs’ pleading and Defendants’ motion, Gomez was Chief of
Patrol. Monahan succeeded him as Chief of Patrol in September 2016, and the
case caption has been updated to reflect the names of the current officeholders
named as official-capacity defendants. See supra n. 1.

RAYMOND MTD.WPD

VERSION MARCH 6, 2017

5

“the number of arrests made or tickets issued” and, "[a]lthough the NYPD has continuously
denied the existence of quotas and asserts that it relies only on a set of 'productivity goals,' or
'performance goals,' those phrases are [alleged to be] mere euphemisms for a quota system." Id.
at ¶ 4. Plaintiffs allege that the performance evaluation system “is not evenly applied to all
precin[c]ts depending on the location of the precin[c]t,” and despite the system’s being “neutral
on its face,” it “is un[]evenly applied in that minority officers are more likely to be charged,
investigated and receive more punishment[] than their white counterparts for the same alleged
offenses.” Id. at ¶ ¶ 25-26.
First Amendment retaliation claims are asserted on behalf of certain of the
individual Plaintiffs, who allege that they filed numerous formal and informal complaints and
have spoken publicly about the alleged imposition of illegal quotas. In some instances, Plaintiffs
identify years or settings in which they complained about the alleged illegal quotas internally or
to the public, or testified in litigations regarding “stop-and-frisks,” but Plaintiffs are not specific
about the allegedly retaliatory acts that occurred or when they occurred in relation to the
Plaintiffs’ alleged complaints. (See e.g., id. at ¶ ¶ 48-51 (alleging that Raymond “complained to
his superiors about” the quota “after seven months on the job,” after joining the force in 2008,
was transferred out of a certain unit in 2012, and has been, at unspecified times, “penalized by
punitive postings, low performance evaluations, denial of upgrades and promotions, denial of
overtime, and denial of time off”).)

DISCUSSION
Defendants move, pursuant to Federal Rule of Civil Procedure 12(b)(6), to
dismiss Plaintiffs' Amended Complaint in its entirety for failure to state a claim upon which
RAYMOND MTD.WPD

VERSION MARCH 6, 2017

6

relief can be granted. (See Docket Entry Nos. 32, 48.) In determining whether a plaintiff has set
forth the "short and plain statement of the claim showing that [she is] entitled to relief" required
by the Federal Rules (see Fed. R. Civ. P. 8(a)(2)), the Court looks to whether the allegations in
the complaint establish the "facial plausibility" of the plaintiff’s claims. Ashcroft v. Iqbal, 556
U.S. 662, 678-79 (2009). "A claim has facial plausibility when the plaintiff pleads factual
content that allows the court to draw the reasonable inference that the defendant is liable for the
misconduct alleged." Iqbal, 556 U.S. at 678 (citing Bell Atl. Corp. v. Twombly, 550 U.S. 544,
556 (2007)). Such a showing "must be enough to raise a right to relief above the speculative
level," requiring "more than labels and conclusions, [or] a formulaic recitation of the elements of
a cause of action." Twombly, 550 U.S. at 555 (internal quotation marks omitted). In deciding a
Rule 12(b)(6) motion to dismiss, the Court assumes the truth of the facts asserted in the
complaint and draws all reasonable inferences from those facts in favor of the plaintiff. See
Harris v. Mills, 572 F.3d 66, 71 (2d Cir. 2009).
“In adjudicating a motion to dismiss, a court may consider only the complaint,
any written instrument attached to the complaint as an exhibit, any statements or documents
incorporated in it by reference, and any document upon which the complaint heavily relies.”
Geron v. Seyfarth Shaw LLP (In re Thelen LLP), 736 F.3d 213, 219 (2d Cir. 2013) (citing
Chambers v. Time Warner, Inc., 282 F.3d 147, 153-54 (2d Cir. 2002)).

New York Labor Law § 215-a (First and Sixteenth Causes of Action)
Plaintiffs seek damages and declaratory relief for Defendants’ alleged
maintenance of quotas, and imposition of discipline for violating such quotas, in violation of
New York Labor Law § 215-a. (Am. Compl. ¶ ¶ 92-96.) Defendants seek dismissal of this
RAYMOND MTD.WPD

VERSION MARCH 6, 2017

7

claim, asserting that the Court lacks subject matter jurisdiction because Plaintiffs failed to
exhaust their administrative remedies, and that there is no private right of action under the
statute.
New York Labor Law § 215-a(1) provides, in relevant part:
No employer or his or her duly authorized agent shall transfer or in
any other manner penalize or threaten, expressly or impliedly, an
employee who is a police officer as to his or her employment in a
manner, including, but not limited to, a reassignment, a scheduling
change, an adverse evaluation, a constructive dismissal, the denial
of a promotion, or the denial of overtime based in whole or in part
on such employee's failure to meet a quota, established by his or
her employer or his or her duly authorized agent, of (a) tickets or
summonses issued within a specified period of time of provisions
of law for which a ticket or summons is authorized by any general,
special or local law; or (b) arrests made within a specified period
of time for violations of provisions of law for which such arrest is
authorized by any general, special or local law; or (c) stops of
individuals suspected of criminal activity within a specified period
of time. Any employee so transferred or otherwise penalized may
cause to be instituted a grievance proceeding pursuant to the
provisions of a collective bargaining agreement, if any, or pursuant
to the provisions of section seventy-five-a of the civil service law
if no collective bargaining agreement exists. . . .
Plaintiffs do not allege that they have instituted grievance proceedings regarding
the alleged violations, and they concede that the statute does not provide expressly for a private
right of action. (See Pls. Opp. Br., at 25.) Plaintiffs acknowledge that their union, "on behalf of
all police officers, entered into a Collective Bargaining Agreement containing a grievance and
arbitration procedure." Id. Plaintiffs also concede that "[o]rdinarily, this would be the end of the
discussion pursuant to Healy v. City of New York Department of Sanitation, 04-CV-7344, 2006
U.S. Dist. LEXIS 86344 (S.D.N.Y. 2006), and other cases cited by [] [D]efendant[s]," because
plaintiffs covered by a grievance procedure "may not seek judicial relief prior to filing a
grievance and exhausting all administrative remedies." Id. Plaintiffs nonetheless argue that the
RAYMOND MTD.WPD

VERSION MARCH 6, 2017

8

Court should "imply a private right of action" as "the only reasonable way to achieve the stated
purpose of Section 215-a," because the provision is "being grossly and wantonly violated by
[D]efendants on a daily basis and the grievance procedures available to individual police officers
have proven wholly inadequate as a means to remedy those violations." Id.
"In New York, when a statute does not provide an express private right of action,
a court must consider three factors in implying one: (1) whether the plaintiff is one of the class
for whose particular benefit the statute was enacted; (2) whether recognition of a private right of
action would promote the legislative purpose; and (3) whether creation of such a right would be
consistent with the legislative scheme." Hollins v. City of New York, 2014 WL 836950, at *12
(S.D.N.Y. Mar. 3, 2014) (internal quotation marks and citation omitted). Assuming the truth of
the facts asserted in the Amended Complaint and drawing all reasonable inferences from those
facts in favor of Plaintiffs, it is clear that Plaintiffs are members of the class for whose particular
benefit the statute was enacted–police officers at risk of being transferred or penalized for failure
to meet a quota. By providing for use of a grievance procedure in the text of the statute,
however, the legislature indicated an intention that alleged violations of Section 215-a involving
union-represented personnel should be addressed, at least in the first instance, in the collective
bargaining context, not by courts in direct private actions. Implication of a private right of
action, circumventing the statutorily prescribed collective bargaining grievance procedure,
would neither promote the legislative purpose nor be consistent with the legislative scheme.
Consideration of the Hollins factors thus does not counsel in favor of implying a private right of
action.
As Section 215-a does not provide for a private right of action and Plaintiffs have
not identified any other proper basis for adjudication by this court of Defendants’ compliance
RAYMOND MTD.WPD

VERSION MARCH 6, 2017

9

with the provisions of Section 215-a, Plaintiffs’ First and Sixteenth Causes of Action will be
dismissed.

42 U.S.C. § 1981 – Civil Rights Act of 1866 (Second Cause of Action)
Plaintiffs allege that Defendants are liable for depriving Plaintiffs and prospective
class members of their civil rights, including the rights and benefits of their employment
contractual relationship with the NYPD, on the basis of their race, color, and/or national origin
in violation of the Civil Rights Act of 1866, 42 U.S.C § 1981. (Am. Compl. ¶ ¶ 97-108.)
Defendants assert that the Amended Complaint fails to state a claim for employment
discrimination because Plaintiffs fail to plausibly allege purposeful race or national origin
discrimination. (See Def. Opening Br. at 5-11.)
Section 1981 provides, in pertinent part, that “[a]ll persons within the jurisdiction
of the United States shall have the same right in every State and Territory to make and enforce
contracts . . . and to the full and equal benefit of all laws and proceedings for the security of
persons and property as is enjoyed by white citizens . . . .” 42 U.S.C.S. § 1981(a) (LexisNexis
2009). “[T]he term ‘make and enforce contracts’ includes the making, performance,
modification, and termination of contracts, and the enjoyment of all benefits, privileges, terms,
and conditions of the contractual relationship.” 42 U.S.C.S. § 1981(b) (LexisNexis 2009).
Section 1981’s protections apply to employment relationships. See Patterson v. Cty. of Oneida,
375 F.3d 206, 224 (2d Cir. 2004). However, “[w]hen the defendant is a state actor, Section 1983
is the exclusive remedy for violations of rights guaranteed under Section 1981 . . . [t]hus, claims
against . . . [i]ndividual [d]efendants in their official capacity or against the City, must be
brought under Section 1983.” Bermudez v. City of New York, 783 F. Supp. 2d 560, 576
RAYMOND MTD.WPD

VERSION MARCH 6, 2017

10

(S.D.N.Y. 2011) (citing Jett v. Dallas Indep. Sch. Dist., 491 U.S. 701 (1989)) (additional
citations omitted). To the extent the Individual Defendants are sued in their individual
capacities, the claims involve official action taken under color of state law and thus are also
properly considered under Section 1983. The Court, accordingly, deems Plaintiffs’ Second
Cause of Action to be an Equal Protection Clause claim brought pursuant to Section 1983.6
“Although ‘an employment discrimination plaintiff need not plead a prima facie
case of discrimination’ in order to survive a motion to dismiss,” a plaintiff “must allege
sufficient facts showing that she is entitled to relief.” Bermudez, 783 F. Supp. 2d at 575
(quoting Swierkiewicz v. Sorema N. A., 534 U.S. 506, 515 (2002)). “Purposeful discrimination
requires more than intent as volition or intent as awareness of consequences; it involves a
decisionmaker’s undertaking a course of action because of, not merely in spite of, the action’s
adverse effects upon an identifiable group.” Iqbal, 556 U.S. at 663 (internal quotation marks,
brackets, and citation omitted).
The Amended Complaint does not allege that Defendants acted in a purposefully
discriminatory manner. See Iqbal, 556 U.S. at 663. Plaintiffs allege that the performance
evaluation system is unevenly applied to all precincts, depending on the precinct’s location, and
that, despite the system being “neutral on its face,” it is unevenly applied to minority officers,
who are more likely to be charged, investigated, and punished than their white counterparts for

6

Plaintiffs appear to agree with this reading of their claims. Despite the fact that
the Amended Complaint does not expressly include a cause of action for an Equal
Protection Clause claim brought pursuant to Section 1983, Plaintiffs argue in their
opposition brief that the Amended Complaint does indeed state a claim for
employment discrimination under the Equal Protection Clause, and rely on
Section 1983 doctrine and the McDonnell Douglas line of cases, in support of
their argument. (See Pls. Opp. Br., at 9-22.)

RAYMOND MTD.WPD

VERSION MARCH 6, 2017

11

the same alleged offenses. See Am. Compl. at ¶ ¶ 25-26. Such generalized disparate impact
allegations are insufficient to plead the intentional discrimination that is an essential element of
claims pursuant to Section 1983. To the extent Plaintiffs intend to assert a claim for intentional
retaliation for complaints of discriminatory discipline, the Amended Complaint fails for the
same reason. Plaintiffs’ conclusory allegations that the Defendants’ actions were “willful and
malicious” and “reckless and intentional” are mere formulaic recitations and thus fail to meet the
requirement of plausible factual pleading established by Twombly and Iqbal.
In their opposition papers, Plaintiffs proffer arguments based on expert reports
and testimony from other lawsuits. These materials are neither referenced in nor integral to the
Amended Complaint and thus cannot be considered in assessing the sufficiency of the current
pleading. Plaintiffs will, however, be given an opportunity to propose a further amended
complaint.
The Amended Complaint is also insufficient because the named Individual
Defendants, all of whom work in supervisory capacities, are not alleged to have been involved
personally in the alleged violations or to have personally approved or authorized the challenged
actions. “[U]nder Section 1983 and Section 1981 supervisors can be sued individually, without
directly participating in the underlying conduct, only if they promulgated unconstitutional
policies or plans under which action occurred, or otherwise authorized or approved challenged
misconduct. . . . [t]o lay a proper foundation for individual liability, the plaintiff must plead
specific, nonconclusory factual allegations to establish the participation at the necessary mental
state of the individual defendants, or [plaintiffs’] claims against them will be dismissed.”
Bermudez, 783 F. Supp. 2d at 602 (citations and quotation marks omitted). The Individual
Defendants may be “sued individually, without directly participating in the underlying conduct,
RAYMOND MTD.WPD

VERSION MARCH 6, 2017

12

only if they promulgated unconstitutional policies or plans under which action occurred, or
otherwise authorized or approved challenged misconduct[,]” and to properly lay a foundation for
such “individual liability, [Plaintiffs] must plead specific, nonconclusory factual allegations to
establish the participation at the necessary mental state of the individual defendants.” See id. at
602.
Insofar as Plaintiffs seek to hold the Individual Defendants liable in their personal
capacities, the Amended Complaint fails to state a claim because Plaintiffs have not proffered
nonconclusory allegations indicative of personal involvement by the Individual Defendants in
the alleged violations of Plaintiffs’ rights, nor have Plaintiffs established that the Individual
Defendants devised, promulgated, authorized or approved the alleged intentionally
discriminatory disciplinary practices and policies. Plaintiffs’ allegations that the Individual
Defendants knew "or should have known of the customs, practices, and policies described in [the
Amended] [C]omplaint,” including the “the maintenance of the illegal quota system by the
NYPD and its racially discriminatory effect on the minority community and minority officers
including the [P]laintiffs” and “condoned, ratified and/or authorized such practices and policies,”
see Am. Compl. at ¶ ¶ 44-47, are insufficient to allege plausibly the Individual Defendants’
“participation at the necessary mental state.” See Bermudez, 783 F. Supp. at 602.
Plaintiffs’ Second Cause of Action will, accordingly, be dismissed, with an
opportunity to propose a further amended complaint that includes a Section 1983 claim.

Conspiracy to Deny Plaintiffs of Rights in Violation of 42 U.S.C. §§ 1985, 1986 (Third Cause of
Action)
Plaintiffs allege that Defendants are engaged in a conspiracy to deny Plaintiffs

RAYMOND MTD.WPD

VERSION MARCH 6, 2017

13

and members of their class the rights, privileges and immunities, and equal protection of the laws
to which they are entitled under the Constitution and laws of the United States in violation of 42
U.S.C. § 1985, and that all of the Individual Defendants, as public officials, had notice of that
conspiracy and their failure and/or refusal to prevent, prohibit and/or ameliorate the conspiracy
constitutes a violation of 42 U.S.C. § 1986. (Am. Compl. ¶ ¶ 109-14.) Defendants move to
dismiss the claims, arguing that (1) the Amended Complaint fails to state a claim under Section
1985 or Section 1986, because the Plaintiffs fail to plead a conspiracy claim adequately under
Section 1985(3) and the intracorporate conspiracy doctrine immunizes the Defendants from suit;
and (2) because they did not address Defendants’ arguments in their opening brief regarding
these claims, Plaintiffs have abandoned them. (See Def. Opening Br. at 11-15; Def. Reply Br. at
8-9.)
Section 1986 creates a cause of action against “[e]very person who, having
knowledge that any of the wrongs conspired to be done, and mentioned in [Section 1985], are
about to be committed, and having power to prevent or aid in preventing the commission of the
same, neglects or refuses so to do, if such wrongful act be committed.” 42 U.S.C.S. § 1986
(LexisNexis 2009). In determining whether the City may be held liable under Section 1986, the
Court must look to whether Plaintiffs have properly set forth a Section 1985 claim, because the
existence of an unlawful conspiracy and subsequent commission of a “wrongful act,” as
described in Section 1985, are necessary conditions precedent to a Section 1986 action. See Posr
v. Court Officer Shield No. 207, 180 F.3d 409, 419 (2d Cir. 1999) (“[N]o § 1986 claim will lie
where there is no valid § 1985 claim.”) (citing Gagliardi v. Vill. of Pawling, 18 F.3d 188, 194
(2d Cir. 1994)).
“The intracorporate conspiracy doctrine posits that the officers, agents, and
RAYMOND MTD.WPD

VERSION MARCH 6, 2017

14

employees of a single corporate or municipal entity, each acting within the scope of his or her
employment, are legally incapable of conspiring with each other.” Dunlop v. City of New York,
2008 WL 1970002, at *9 (S.D.N.Y. May 6, 2008) (quotation marks and citation omitted). At
least one court in this district has ruled that “[i]t is beyond doubt that” NYPD individual
defendants, including the Commissioner, Chief, and various deputy chiefs, “are all employees of
a single municipal entity–the City, and, more narrowly, the NYPD–and, therefore, are legally
incapable of conspiring with each other.” Id. (citation omitted). Furthermore, “it is well-settled
that the doctrine bars conspiracy claims alleging concerted action by employees and/or the heads
of various departments within a single municipal entity,” including the City as an entity and the
Mayor, “at least where the complaint fails to allege that the various entities were effectively
acting as separate entities in carrying out the alleged conspiracy.” Id. (citations omitted). Thus,
the intracorporate conspiracy doctrine applies when a complaint “clearly depict[s]” a conspiracy
“as the product of a single corporation acting exclusively through its own directors, officers, and
employees.” Id. at *10 (quotation marks and citation omitted). There is an exception to the
doctrine, however, if the plaintiff sufficiently alleges “that the individual defendants were
motivated by an independent personal stake in achieving the corporation’s objective rather than
merely carrying out the corporation's managerial policy.” Id. (internal quotation marks,
citations, and brackets omitted).
Here, “[i]t is beyond doubt that” the Individual Defendants “are all employees of
a single municipal entity–the City . . . and, therefore, are legally incapable of conspiring with
each other.” See id. at *9. Plaintiffs do not allege that the City, the Mayor, and the other
Individual Defendants “were effectively acting as separate entities in carrying out the alleged
conspiracy.” See id. Thus, the intracorporate conspiracy doctrine bars Plaintiffs’ conspiracy
RAYMOND MTD.WPD

VERSION MARCH 6, 2017

15

claim, which alleges concerted action by the Defendants, all of whom are either employees
“within a single municipal entity” or the entity itself. See id. The Amended Complaint “clearly
depicts” the alleged conspiracy “as the product of a single corporation acting exclusively through
its own directors, officers, and employees.” See id. at *10; see also Am. Compl. ¶ ¶ 3, 18-20.
Nor have Plaintiffs sufficiently alleged that the Individual Defendants “were motivated by an
independent personal stake in achieving the corporation’s objective rather than merely carrying
out the corporation's managerial policy.” Donlop, 2008 WL 1970002, at *10. The
intracorporate conspiracy doctrine thus bars Plaintiffs’ Sections 1985 and 1986 claim.
Moreover, in their opposition papers to Defendants’ initial motion, Plaintiffs
failed to respond to Defendants’ Sections 1985 and 1986 arguments. When a plaintiff fails to
respond to arguments regarding liability when challenging a motion to dismiss, a plaintiff is
deemed to have “effectively abandoned” the claims, and the claims may be “dismissed as a
matter of law.” See Bonilla v. Smithfield Assocs. LLC, 2009 WL 4457304, at *4 (S.D.N.Y.
Dec. 4, 2009). Plaintiffs’ Sections 1985 and 1986 claims are deemed to have been abandoned
and are dismissed.

New York State and New York City Human Rights Laws (Fourth and Fifth Causes of Action)
Plaintiffs assert claims under the New York State and New York City Human
Rights laws that parallel their Section 1981 and 1983 claims. For substantially the reasons
explained above in connection with Count Two, the Amended Complaint fails to state causes of
action under these anti-discrimination laws. Plaintiffs will be given the opportunity to move to
replead these claims.

RAYMOND MTD.WPD

VERSION MARCH 6, 2017

16

First Amendment Retaliation Claims by Plaintiffs Raymond, Polanco, Serrano, Waller, and
Gonzalez (Sixth, Eighth, Tenth, Twelfth, and Fourteenth Causes of Action)
Plaintiffs allege that Defendants retaliated against individual Plaintiffs Raymond,
Polanco, Serrano, Waller, and Gonzalez for internal and certain external complaints regarding
the allegedly discriminatory quota and discipline policies by imposing discriminatory
employment measures on them, thereby violating these Plaintiffs’ rights under the First
Amendment to the United States Constitution and 42 U.S.C. § 1983. Defendants seek to dismiss
these claims for failure to allege plausibly causal relationships between the alleged complaints
and the allegedly unfair discipline and, as to the claims against the Defendants in their individual
capacities, on the basis of qualified immunity. In their opposition papers, Plaintiffs proffer
additional facts and request leave to augment their pleading.
Plaintiffs, who for the most part failed in the Amended Complaint to specify the
nature and timing of the alleged complaints and allegedly retaliatory discipline and have not
pleaded facts demonstrating the personal involvement of the Individual Defendants, will be
given leave to move to replead these First Amendment claims in a further amended complaint.
Because Plaintiffs have not yet framed these claims sufficiently, the issue of qualified immunity
is premature and will not be addressed at this juncture.

New York State Constitution Article 1, § 8 Free Speech Retaliation Claims by Plaintiffs
Raymond, Polanco, Serrano, Waller, and Gonzalez (Seventh, Ninth, Eleventh, Thirteenth,
Fifteenth Causes of Action)
Plaintiffs assert that, in retaliating against individual Plaintiffs Raymond,
Polanco, Serrano, Waller, and Gonzalez for complaining about the alleged quotas and
discriminatory discipline, Defendants also violated Article 1, § 8 of the New York State

RAYMOND MTD.WPD

VERSION MARCH 6, 2017

17

Constitution. Defendants assert that these claims should be dismissed because these claims
mirror the First Amendment claims that Plaintiffs brought under Section 1983. (Def. Opening
Br. at 22.) Defendants’ point is well taken.
“[I]t is a common view among District Courts in this Circuit that there is no right
of action under the New York State Constitution for claims that can be brought under § 1983.”
Dava v. City of New York, 2016 U.S. Dist. LEXIS 115639, at *30-31 (S.D.N.Y. Aug. 29, 2016)
(quotation marks and ellipses omitted) (citing Gounden v. City of New York, 2015 WL
5793625, at *5 n. 3 (E.D.N.Y. Oct. 2, 2015); Flores v. City of Mount Vernon, 41 F. Supp. 2d 439
(S.D.N.Y.1999); and Sherman v. Town of Chester, 2015 WL 1473430, at *14 (S.D.N.Y. Mar.
31, 2015)). "‘New York courts will only imply a private right of action under the state
constitution where no alternative remedy is available to the plaintiff.’" Davis v. City of New
York, 959 F. Supp. 2d 324, 368 (S.D.N.Y. 2013) (quoting Felmine v. City of New York, 2012
WL 1999863, at *6 (E.D.N.Y. June 4, 2012)).
Because Plaintiffs are asserting First Amendment retaliation claims pursuant to
Section 1983, their state constitutional claims are superfluous and will be dismissed.

Claim for Injunctive Relief (Cause of Action Seventeen)
Plaintiffs have asserted a claim for preliminary and permanent injunctive relief
barring the City and the NYPD from using arrest or summons statistics as evaluation tools,
without specifying the substantive legal or factual basis of this claim for relief. "A party seeking
a preliminary injunction must either show that he is likely to succeed on the merits; that he is
likely to suffer irreparable harm in the absence of preliminary relief; that the balance of equities
tips in his favor; and that an injunction is in the public interest; or he may show irreparable harm

RAYMOND MTD.WPD

VERSION MARCH 6, 2017

18

and either a likelihood of success on the merits or sufficiently serious questions going to the
merits to make them a fair ground for litigation and a balance of hardships tipping decidedly
toward the party requesting the preliminary relief." ACLU v. Clapper, 785 F.3d 787, 825 (2d
Cir. 2015) (internal citation and quotation marks omitted). To obtain a permanent injunction, a
party seeking such relief must demonstrate, among other things, that “‘it has suffered an
irreparable injury’.” World Wide Polymers, Inc. v. Shinkong Synthetic Fibers Corp., 694 F.3d
155, 160-61 (2d Cir. 2012) (quoting eBay Inc. v. MercExchange, L.L.C., 547 U.S. 388, 391
(2006)). Plaintiffs have neither tied this claim for injunctive relief to a sufficient claim on the
merits nor pleaded facts indicative of a prospect of irreparable harm. The Seventeenth Cause of
Action will be dismissed, without prejudice to the inclusion of requests for injunctive relief in a
proposed Second Amended Complaint.

CONCLUSION
For the foregoing reasons, Defendants’ motion to dismiss the Amended
Complaint is granted. Plaintiffs may make a motion for leave to replead the claims and requests
for relief asserted in their Second, Fourth, Fifth, Sixth, Eighth, Tenth, Twelfth, Fourteenth, and
Seventeenth Causes of Action. Any such motion must be filed by March 27, 2017, and must be
accompanied by a proposed Second Amended Complaint and a memorandum of law. Failure to

RAYMOND MTD.WPD

VERSION MARCH 6, 2017

19

make such a timely motion, or denial of the motion as futile, may result in dismissal of the
Amended Complaint in its entirety, without further advance notice.
This Memorandum Opinion and Order resolves Docket Entry Nos. 32 and 48.

SO ORDERED.

Dated: New York, New York
March 6, 2017
/s/ Laura Taylor Swain
LAURA TAYLOR SWAIN
United States District Judge

RAYMOND MTD.WPD

VERSION MARCH 6, 2017

20