Guerrero v. City Of New York et al
OPINION AND ORDER: re: 32 MOTION to Dismiss filed by James Roche, City Of New York, Chris Goubeaud, Edward McDonough, Andrew Freeman. For the foregoing reasons, Defendants' motion is GRANTED IN PART and DENIED IN PART. Defendants shall answer the remaining claims by June 13, 2017. The Clerk of Court is directed to close the motion at Docket Number 32. SO ORDERED. (Signed by Judge J. Paul Oetken on 5/23/2017) (ama)
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
-vCITY OF NEW YORK, et al.,
OPINION AND ORDER
J. PAUL OETKEN, District Judge:
Santos Guerrero brings this action under 42 U.S.C. § 1983 against Defendants the City of
New York, Chris Goubeaud, James Roche, Andrew Freeman, Edward McDonough, and Does 110, alleging that he was falsely arrested in early 2014. (Dkt. No. 19 (“Compl.”).) Defendants
move to dismiss several of Guerrero’s claims. For the reasons that follow, the motion is granted
in part and denied in part.
The following facts are taken from the operative complaint and are presumed true for the
purposes of this motion.
On the night of March 31, 2014, Guerrero visited a friend at 350 East 143rd Street in the
Bronx, New York. (Compl. ¶ 12.) Guerrero was approached by Defendants Roche and
McDonough, who placed him in handcuffs, held him for ten to fifteen minutes, and released him.
(Id. ¶¶ 13-15.) Around 12:30 a.m. on April 1, 2014, as Guerrero was leaving the building, he
was approached by Defendants Roche, Goubeaud, and Freeman, who arrested him for
trespassing. (Id. ¶¶ 17-18.) Guerrero was transported in a police van to a police precinct where
he was held until his arraignment later that day. (Id. ¶¶ 19-20.) Guerrero alleges that Defendants
manufactured false evidence that was used against him in legal proceedings following his arrest.
(Id. ¶ 22.) All charges against Guerrero were dismissed on October 28, 2014. (Id. ¶ 23.)
Guerrero initiated this lawsuit on January 22, 2016, and filed the operative complaint on
August 15, 2016. (Dkt. No. 1; Compl.) He brings seven causes of action: false arrest, malicious
prosecution, violation of the right to a fair trial, malicious abuse of process, failure to intervene,
supervisory liability, and municipal liability. (Compl. ¶¶ 35-69.) Defendants move to dismiss in
part. (Dkt. No. 32.)
In considering a motion to dismiss for failure to state a claim, the Court accepts as true all
allegations in the complaint and draws all reasonable inferences in Plaintiff’s favor. Cleveland v.
Caplaw Enters., 448 F.3d 518, 521 (2d Cir. 2006). To survive a motion to dismiss, the
complaint must plead “enough facts to state a claim to relief that is plausible on its face.” Bell
Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). “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.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009).
Defendants move to dismiss Guerrero’s claims for malicious abuse of process, failure to
intervene, supervisory liability, and municipal liability. 1 (Dkt. No. 33 at 1.) Defendants do not
(at this stage) challenge Guerrero’s claims for false arrest and malicious prosecution. (Id. at 1
As a threshold matter, Guerrero voluntarily withdraws his claims for malicious abuse of
process and supervisory liability. (Dkt. No. 39 at 1 n.1.) Accordingly, the Court addresses only
Guerrero’s claims for municipal liability and failure to intervene.
Though Defendants contend that Guerrero’s claim for denial of the right to a fair
trial fails as a matter of law (Dkt. No. 33 at 1), they fail to make arguments specific to this claim
in their brief. Accordingly, the motion to dismiss is denied as to that claim.
“It is axiomatic that municipalities cannot be held liable pursuant to § 1983 on a
respondeat superior theory.” Betts v. Shearman, No. 12 Civ. 3195, 2013 WL 311124, at *15
(S.D.N.Y. Jan. 24, 2013) (citing Monell v. Dep’t of Soc. Servs., 436 U.S. 658, 690 (1978)).
“[T]o hold a city liable under [Section] 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.” Betts v. Rodriquez,
No. 15 Civ. 3836, 2016 WL 7192088, at *5 (S.D.N.Y. Dec. 12, 2016) (alteration in original)
(quoting Wray v. City of N.Y., 490 F.3d 189, 195 (2d Cir. 2009)); see also Monell, 436 U.S. at
690-91 (“[A]lthough the touchstone of the § 1983 action against a government body is an
allegation that official policy is responsible for a deprivation of rights protected by the
Constitution, local governments . . . may be sued for constitutional deprivations visited pursuant
to governmental ‘custom’ even though such a custom has not received formal approval through
the body’s official decisionmaking channels.”).
“[A] municipality can be liable for failing to train its employees where it acts with
deliberate indifference in disregarding the risk that its employees will unconstitutionally apply its
policies without more training.” Amnesty Am. v. Town of W. Hartford, 361 F.3d 113, 129 (2d
Cir. 2004) (citing City of Canton v. Harris, 489 U.S. 378, 387-90 (1989)). To allege liability
under a failure-to-train theory, a plaintiff must “establish not only that the officials’ purported
failure to train occurred under circumstances that could constitute deliberate indifference, but
also that plaintiffs identify a specific deficiency in the city’s training program and establish that
that deficiency is ‘closely related to the ultimate injury,’ such that it ‘actually caused’ the
constitutional deprivation.” Id. (quoting City of Canton, 489 U.S. at 391).
Here, Guerrero alleges both that the City has a custom or policy of unlawfully stopping
and falsely arresting individuals for trespassing in New York City Housing Authority
(“NYCHA”) buildings and falsifying evidence in connection with those arrests, and that the City
inadequately screens, hires, trains, and supervises its employees for issues relating to such
arrests. (Compl. ¶ 25.)
As regards Guerrero’s first theory of Monell liability, he has pleaded enough to plausibly
allege liability. The complaint describes how Guerrero’s experience “is not an isolated
incident.” (Compl. ¶ 26.) It goes on to describe “lawsuits, . . . notices of claims, complaints
filed with the NYPD’s Internal Affairs Bureau, and the . . . Civilian Complaint Review Board,
and extensive media coverage,” all of which show “that many NYPD officers, including the
defendants are insufficiently trained in the investigation of purported trespassers, and the
probable cause required for making trespass arrests in NYCHA buildings, and that they
otherwise engage in a practice of falsification.” (Id.)
The Complaint, moreover, cites two cases in this Circuit where the practices alleged by
Guerrero served as predicates for potential Monell liability, one involving trespass enforcement
policies around NYCHA buildings and the other involving falsification of evidence. See Davis
v. City of N.Y., 959 F. Supp. 2d 324, 355 (S.D.N.Y. 2013) (“In sum, based on plaintiffs’
documentary and testimonial evidence, as well as [an expert’s] opinions, a reasonable juror could
conclude that the City has engaged in a practice of making unconstitutional stops and arrests in
and around NYCHA buildings as part of its trespass enforcement practices, and that this practice
is sufficiently persistent and widespread to serve as a basis for Monell liability.”); Colon v. City
of N.Y., No. 09 Civ. 8, 2009 WL 4263362, at *2 (E.D.N.Y. Nov. 25, 2009) (“Informal inquiry by
the court and among the judges of this court, as well as knowledge of cases in other federal and
state courts, has revealed anecdotal evidence of repeated, widespread falsification by arresting
police officers of the New York City Police Department. Despite numerous inquiries by
commissions and strong reported efforts by the present administration . . . there is some evidence
of an attitude among officers that is sufficiently widespread to constitute a custom or policy by
the city approving illegal conduct of the kind now charged.”).
Accepting as true all allegations in the Complaint and drawing all reasonable inferences
in Guerrero’s favor, these allegations support, “at least circumstantially,” the inference that the
City performs the policies or customs alleged—and are thus sufficient to support a Monell claim
at the motion-to-dismiss stage. Zherka v. City of N.Y., 459 F. App’x 10, 12 (2d Cir. 2012)
(quoting Zahra v. Town of Southold, 48 F.3d 674, 685 (2d Cir. 1995)); see also Caplaw Enters.,
448 F.3d at 521. “It may well be the case that the decision to [engage in the complained-of
actions] was made and implemented by several rogue officers, but there is no way for this Court
to determine whether a policy is in place until Plaintiff is permitted to take discovery.” Cantey v.
City of N.Y., No. 10 Civ. 4043, 2012 WL 6771342, at *5 (S.D.N.Y. Dec. 11, 2012).
As for Guerrero’s failure-to-train theory of liability, he has not carried his burden at this
stage. Guerrero has not identified any specific deficiency in the city’s training that actually
caused his constitutional deprivation. See Amnesty Am., 361 F.3d at 129. Though he alleges that
the pattern of violations resulted from the City’s “inadequate screening, hiring, retaining, training
and supervising” of its employees (Compl. ¶ 25), he does not describe that screening, hiring,
retaining, training, and supervising with sufficient specificity to explain how it is closely
connected to his ultimate injury.
While Guerrero has adequately pleaded the existence of a potential policy or custom of
misconduct in connection with arrests and prosecutions for trespass, which entitles him to
discovery on his Monell claim, he has not sufficiently connected it to the City’s hiring and
training practices to justify discovery in that regard.
Failure to Intervene
Defendants also move to dismiss Guerrero’s failure to intervene claim. (Dkt. No. 33 at
“It is widely recognized that all law enforcement officials have an affirmative duty to
intervene to protect the constitutional rights of citizens from infringement by other law
enforcement officers in their presence.” Anderson v. Branen, 17 F.3d 552, 557 (2d Cir. 1994).
“Liability may attach only when (1) the officer had a realistic opportunity to intervene and
prevent the harm; (2) a reasonable person in the officer’s position would know that the victim’s
constitutional rights were being violated; and (3) the officer does not take reasonable steps to
intervene.” Jean-Laurent v. Wilkinson, 540 F. Supp. 2d 501, 512 (S.D.N.Y. 2008) (citing
O’Neill v. Krzeminski, 839 F.2d 9, 11-12 (2d Cir. 1988)), aff’d sub nom. Jean-Laurent v.
Wilkerson, 461 F. App’x 18 (2d Cir. 2012).
Guerrero has adequately pleaded liability under a failure to intervene theory. He alleges
that Defendant McDonough was present when he was initially stopped and that Defendants
Goubeaud, Roche, and Freeman were present during his second arrest. (Compl. ¶¶ 12-17.)
Guerrero alleges that although he was lawfully present on the premises—something of which
Defendants were made aware—he was nonetheless arrested and prosecuted for trespassing. (Id.
¶¶ 18-22.) Given that Defendants do not challenge Guerrero’s claims for false arrest and
malicious prosecution, and that Guerrero has alleged Defendants’ involvement in the conduct
underlying those claims, he has adequately pleaded his failure to intervene claim. See Matthews
v. City of N.Y., 889 F. Supp. 2d 418, 444 (E.D.N.Y. 2012) (“Because plaintiffs properly allege at
least one constitutional violation, plaintiffs are entitled to discovery to determine which officers
participated directly in the alleged constitutional violations and which officers were present and
failed to intervene.”).
Defendants argue that the failure to intervene claim should be dismissed because the
Defendants against whom this claim is alleged are also alleged to have engaged in the false arrest
itself. (Dkt. No. 33 at 15.) Though a failure to intervene theory of liability is inapplicable where
a defendant is a direct participant in the alleged primary violation, at this stage, these two claims
may be pleaded in the alternative. See Buchy v. City of White Plains, No. 14 Civ. 1806, 2015
WL 8207492, at *3 (S.D.N.Y. Dec. 7, 2015); see also, e.g., Cumberbatch v. Port Auth. of N.Y.
and N.J., No. 03 Civ. 749, 2006 WL 3543670, at *11 (S.D.N.Y. Dec. 5, 2006) (“The Court
will . . . construe these claims as pleading in the alternative . . . the Officers either used excessive
force, or one or both of them failed to intervene while another officer used excessive force.”).
For the foregoing reasons, Defendants’ motion is GRANTED IN PART and DENIED IN
PART. Defendants shall answer the remaining claims by June 13, 2017.
The Clerk of Court is directed to close the motion at Docket Number 32.
Dated: May 23, 2017
New York, New York
J. PAUL OETKEN
United States District Judge
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