Ortiz v. The City of New York et al
Filing
57
OPINION AND ORDER re: 49 MOTION to Dismiss filed by Parkchester North Condominium, James Frye, Eleanora Sullivan. For the foregoing reasons, Defendants motion to dismiss is GRANTED. The Clerk of Court is respectfully directed to terminate Parkchester North Condominium as a defendant in this action and to terminate Docket No. 49. The Individual Defendants are instructed to file their Answers to the FAC within twenty-one (21) days of the entry of this Opinion & Order. SO ORDERED. (Signed by Judge Vernon S. Broderick on 6/13/2018) Party Parkchester North Condominium terminated. (ne)
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
--------------------------------------------------------- X
:
LEONARD ORTIZ,
:
:
Plaintiff,
:
:
- against :
:
:
PARKCHESTER NORTH
:
CONDOMINIUM, UNIFORMED SPECIAL :
PATROLMAN OF
:
PARKCHESTER NORTH
:
CONDOMINIUMS ELEANORA
:
SULLIVAN SHIELD NO. 782, and
:
UNIFORMED SPECIAL
:
PATROLMAN OF PARKCHESTER
:
NORTH CONDOMINIUMS
:
JAMES FRYE,
:
Defendants. :
:
--------------------------------------------------------- X
6/13/2018
16-CV-9646 (VSB)
OPINION & ORDER
Appearances:
Jessica Massimi
The Law Offices of Michael S. Lamonsoff
New York, NY
Counsel for Plaintiff
Alexander Shindler
Tanya M. Branch
Brody & Branch LLP
New York, NY
Counsel for Defendants
VERNON S. BRODERICK, United States District Judge:
Before me is the motion of Defendants Parkchester North Condominium (“PNC”),
Uniformed Special Patrolman of PNC Eleanora Sullivan (“Sullivan”), and Uniformed Special
Patrolman of PNC James Frye (“Frye”) (collectively, “Defendants”) to dismiss portions of the
First Amended Complaint (“FAC”) of Plaintiff Leonard Ortiz (“Plaintiff”) for lack of subject
matter jurisdiction pursuant to Federal Rule of Civil Procedure 12(b)(1)1 and for failure to state a
claim pursuant to Federal Rule of Civil Procedure 12(b)(6). (Doc. 49.) Because Plaintiff failed
to allege a policy or custom on behalf of Defendant PNC that caused Plaintiff’s injuries, and
because Plaintiff failed to allege that Defendants Sullivan or Frye had a propensity for
misconduct or acted outside the scope of their employment, Defendants’ motion to dismiss is
GRANTED.
Background2
Defendant PNC is a private business association that, at all times relevant to this action,
operated the Parkchester North Condominium complex located at 1594 Unionport Road in Bronx
County. (FAC ¶ 7.)3 Defendant PNC employed an organization of “special patrolmen,” referred
to as the Parkchester Department of Public Safety (“PDPS”), (id. ¶¶ 8, 14), which performed
security services in the privately owned residential community known as Parkchester, (id. ¶¶ 10,
12, 14). Although they were employed by Defendant PNC, members of the PDPS were
appointed by the New York City Police Commissioner, licensed by the City of New York, and
authorized to serve as New York State Peace Officers in Parkchester. (Id. ¶¶ 10, 12.)
Members of the PDPS are “special patrolmen” as defined under N.Y.C. Admin. Code §
14-106. (Id. ¶ 10.)
Special patrolmen, appointed in pursuance of law while acting as such special
patrolmen shall possess the powers, perform the duties, and be subject to the orders,
rules and regulations of the [police] department [of the City of New York] in the
1
Although Defendants’ motion papers include reference to Rule 12(b)(1), they fail to include any substantive
arguments in their memoranda of law on the basis for lack of subject matter jurisdiction. Therefore, I do not address
Defendants’ motion as it relates to Rule 12(b)(1).
2
The following factual summary is drawn from the allegations of the FAC, (Doc. 38), unless otherwise indicated,
which I assume to be true for purposes of this motion. See Kassner v. 2nd Ave. Delicatessen Inc., 496 F.3d 229, 237
(2d Cir. 2007). My references to these allegations should not be construed as a finding as to their veracity, and I
make no such findings.
3
“FAC” refers to Plaintiff’s First Amended Complaint, filed February 27, 2017. (Doc. 38.)
2
same manner as regular members of the [police] force. Every such special
patrolman shall wear a badge, to be prescribed and furnished by the [police]
commissioner [of the City of New York].
N.Y.C. Admin. Code. § 14-106(b). PNC was responsible for hiring, training, and supervising the
PDPS and for the policies, practices, and conduct of all PDPS Special Patrolmen. (FAC ¶ 14.)
At all times relevant to this action, Defendants Frye and Sullivan (the “Individual Defendants”)
were PDPS Special Patrolmen, on duty, in uniform, and working in their official capacities. (Id.
¶¶ 15, 24.)
Plaintiff alleges that on December 28, 2013, at approximately 6:00 p.m., he was lawfully
present inside the Parkchester North Condominium complex. (Id. ¶ 22.) The Individual
Defendants—without any legal justification—approached Plaintiff in the complex, searched him,
and despite the lack of any evidence of wrongdoing, handcuffed Plaintiff, slammed him to the
ground, and maced him. (Id. ¶¶ 23–30.) The Individual Defendants then arrested Plaintiff and
took him to the emergency room of the local hospital—where he remained in their custody—to
receive medical treatment for injuries sustained at their hands. (Id. ¶¶ 31–33.) Plaintiff was
taken to the station house of a local police precinct, where he was held for several hours and
searched. (Id. ¶ 34.) The search revealed no evidence of drugs, guns, or contraband. (Id. ¶ 35.)
He was then transferred to Bronx County Central Booking, where he was held for several more
hours. (Id. ¶ 36.)
Eventually, Plaintiff was arraigned on a criminal complaint based on false allegations
sworn to by Defendant Sullivan. (Id. ¶ 37.) Plaintiff alleges that Defendants knowingly
provided these false statements to the Bronx County District Attorney’s Office, (id. ¶ 40), which
used them as the basis to charge Plaintiff with menacing, resisting arrest, and harassment, (id. ¶¶
38–39). Defendants knew the information and evidence provided to the Bronx County District
3
Attorney’s Office to be false when Defendant Sullivan provided them, (id. ¶ 41), and they
withheld exculpatory evidence from the District Attorney, (id. ¶ 54). Plaintiff was released after
his arraignment and given a court date, (id. ¶ 42), and he made several subsequent court
appearances before the charges against him were ultimately dismissed, (id. ¶ 43.)
At the time of the challenged conduct, the Individual Defendants were on duty as
Uniformed Special Patrolmen of the PDSP and acting within the scope of their employment by
Defendant PNC. (Id. ¶ 49.) Their acts were done in furtherance of Defendant PNC’s interests,
(id.), pursuant to policies, practices, and procedures of Defendant PNC, including: (1) deliberate
indifference to aggressive and violent actions or propensities of the PDSP; (2) ineffective
training of employees in identifying constitutionally permissible bounds of their authority; (3)
systematic creation of an environment in which employees fail to use due diligence when
exercising their authority; (4) deliberate indifference to verifying whether a seizure, stop, arrest,
or use of force is constitutionally permissible; (5) ineffective oversight and supervision of
activities and arrests by the PDSP; and (6) failure to institute remedial measures or other
disincentives for PDSP Special Patrolmen who violate constitutional rights, (id. ¶ 67). As
evidence of these policies, practices, and procedures, Plaintiff lists fourteen other civil cases
involving allegations of the use of excessive force, false arrest, false imprisonment, or malicious
prosecution against Defendant PNC, non-party Parkchester South Condominium, Inc., the City
of New York, and various individual defendants who served as special patrolmen or New York
City Police Department (“N.Y.P.D.”) officers. (Id. ¶ 68.) None of the fourteen other actions
named the Individual Defendants as defendants.
4
Procedural History
Plaintiff filed his Complaint on December 14, 2016 against Parkchester DPS, LLC; the
Board of Managers of the Parkchester North Condominium; Parkchester South Condominium,
Inc.; the Board of Managers of Parkchester Condominium, Inc.; Parkchester Preservation
Management, LLC (collectively, the “Parkchester Corporate Defendants”); Defendant City of
New York; and Defendants Sullivan and Frye. (Doc. 1.)
On February 27, 2017, Plaintiff, on consent, filed the FAC, which substituted the
Parkchester Corporate Defendants for Defendant PNC. (FAC 1.) The FAC contains the
following causes of action: (1) deprivation of rights under the U.S. Constitution, pursuant to 42
U.S.C. § 1983, against the Individual Defendants (“First Cause of Action”); (2) violations of the
Fourth and Fourteenth Amendments of the U.S. Constitution, pursuant to 42 U.S. § 1983, against
Defendant PNC (“Second Cause of Action”); (3) negligence under New York state law against
Defendant PNC (“Third Cause of Action”); and (4) deprivation of rights under the U.S.
Constitution, pursuant to 42 U.S.C. § 1983, against Defendant City of New York (“Fourth Cause
of Action”). (Id. ¶¶ 50–96.)
I granted Defendants leave to file a motion to dismiss the FAC on June 12, 2017. (Doc.
46.) Defendants filed their motion and supporting papers on August 11, 2017, (Docs. 49–51),
seeking dismissal only of Plaintiff’s Second and Third Causes of Action against Defendant PNC.
Plaintiff filed his opposition on September 7, 2017, (Docs. 52–53), and Defendants filed their
reply on September 22, 2017, (Doc. 54). On January 26, 2018, the parties stipulated to the
voluntary dismissal and withdrawal of Plaintiff’s Fourth Cause of Action against Defendant City
of New York. (Doc. 56.)
5
Legal Standard
To survive a motion to dismiss 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.’” Ashcroft
v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570
(2007)). A claim will have “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.” Id. This standard demands “more than a sheer possibility that a defendant has acted
unlawfully.” Id. “Plausibility . . . depends on a host of considerations: the full factual picture
presented by the complaint, the particular cause of action and its elements, and the existence of
alternative explanations so obvious that they render plaintiff’s inferences unreasonable.” L-7
Designs, Inc. v. Old Navy, LLC, 647 F.3d 419, 430 (2d Cir. 2011).
In considering a motion under Rule 12(b)(6), a court must “accept all factual allegations
in the complaint as true and draw all reasonable inferences in [the plaintiff’s] favor.” Johnson v.
Rowley, 569 F.3d 40, 43 (2d Cir. 2009) (per curiam); accord Kassner, 496 F.3d at 237. A
complaint need not make “detailed factual allegations,” but it must contain more than mere
“labels and conclusions” or “a formulaic recitation of the elements of a cause of action.” Iqbal,
556 U.S. at 678 (internal quotation marks omitted). Finally, although all allegations contained in
the complaint are assumed to be true, this tenet is “inapplicable to legal conclusions.” Id.
Discussion
Defendants move to dismiss: (1) Plaintiff’s Second Cause of Action for deprivation of
rights under the Fourth and Fourteenth Amendments of the U.S. Constitution, pursuant to 42
U.S. § 1983, against Defendant PNC; and (2) Plaintiff’s Third Cause of Action for negligence
under New York state law against Defendant PNC. Plaintiff has withdrawn his claim against
6
Defendant PNC under the Fourteenth Amendment. (Pl.’s Opp. 8.)4 I address Defendants’
motion against Plaintiff’s remaining claims in turn.
A.
Section 1983
Defendants move to dismiss Plaintiff’s Second Cause of Action on the basis that Plaintiff
has failed to adequately allege (1) that Defendant PNC acted under color of state law, (Defs.’
Mem. 4–5),5 and (2) that a policy or custom of Defendant PNC caused the deprivation of
Plaintiff’s constitutional rights, (id. at 5–7, 8–10).
1. Color of State Law
Section 1983 provides a civil claim for damages against “[e]very person who, under color
of any statute . . . of any State . . . subjects, or causes to be subjected, any citizen . . . to the
deprivation of any rights, privileges, or immunities secured by the Constitution and laws . . . .”
42 U.S.C. § 1983. To succeed on a § 1983 claim, “a plaintiff must allege that he was injured
either by a state actor or a private party acting under color of state law.” Ciambriello v. Cty. of
Nassau, 292 F.3d 307, 323 (2d Cir. 2002). Here, Plaintiff has voluntarily dismissed his action
against the City of New York, (Doc. 56), and the only remaining defendants are private entities.
Therefore, he must allege that the remaining defendants acted under color of state law.
An individual acts under color of state law when she exercises power “possessed by
virtue of state law and made possible only because the wrongdoer is clothed with the authority of
state law.” Polk Cty. v. Dodson, 454 U.S. 312, 317–18 (1981) (internal quotation marks
omitted). “For the conduct of a private entity to be fairly attributable to the state, there must be
4
“Pl.’s Opp.” refers to Plaintiff’s Memorandum of Law in Opposition to the Parkchester Defendants’ Motion to
Dismiss, filed September 7, 2017. (Doc. 52.)
5
“Defs.’ Mem.” refers to the Memorandum of Law in Support of Defendants’ Motion to Dismiss, filed August 11,
2017. (Doc. 51.)
7
such a close nexus between the State and the challenged action that seemingly private behavior
may be fairly treated as that of the State itself.” Flagg v. Yonkers Sav. & Loan Ass’n, FA, 396
F.3d 178, 187 (2d Cir. 2005) (internal quotation marks omitted). A “close nexus” exists when
“the state exercises coercive power [or] is entwined in the management or control of the private
actor.” Id. (internal quotation marks omitted).
Members of the PDPS are employed by Defendant PNC, but they are appointed by the
New York City Police Commissioner, licensed by the City of New York, and authorized to serve
as New York State Peace Officers in Parkchester. (FAC ¶¶ 8, 10.) As a group of special
patrolmen, the PDPS “possess the powers, perform the duties, and [are] subject to the orders,
rules and regulations of the [police] department [of the City of New York] in the same manner as
regular members of the [police] force.” N.Y.C. Admin. Code § 14-106. In addition, they “wear
a badge . . . prescribed and furnished by the [police] commissioner [of the City of New York.]”
Id. Members of the PDPS, therefore, are authorized by law to search individuals, to seize
property, to detain individuals, to make arrests, and to use appropriate force in the same manner
and under the same circumstances as regular members of the N.Y.P.D. See id.
Multiple courts in this circuit have held that security officers employed by private entities
and appointed pursuant to the Administrative Code as special patrolmen—including members of
PDPS—act under the color of state law when performing duties normally performed by
N.Y.P.D. officers. E.g., Simon v. City of N.Y., No. 14-CV-8391 (JMF), 2015 WL 2069436, at *1
(S.D.N.Y. May 4, 2015) (finding that members of PDPS acted under color of state law when
they stopped, searched, assaulted, and arrested plaintiff); Bishop v. Toys “R” Us-NY LLC, 414 F.
Supp. 2d 385, 396 (S.D.N.Y. 2006) (finding that plaintiff’s allegations that defendant stopped,
detained, and assaulted plaintiff while performing his duties as a special patrolman were
8
sufficient to survive motion for judgment on the pleadings), aff’d sub nom. Bishop v. Toys R Us,
385 F. App’x 38 (2d Cir. 2010) (summary order); Temple v. Albert, 719 F. Supp. 265, 267
(S.D.N.Y. 1989) (“Special Patrolmen acting pursuant to a statutory grant of police power are
sufficiently controlled by the state to be properly characterized as acting under color of state
law.” (internal quotation marks omitted)); Rojas v. Alexander’s Dep’t Store, Inc., 654 F. Supp.
856, 858 (E.D.N.Y. 1986) (finding that a special patrolman appointed by the N.Y.P.D.
Commissioner and employed as a store detective for a department store was a government
official subject to liability under section 1983).
The FAC contains allegations that plausibly assert that the Individual Defendants acted
under the color of state law. Specifically, Plaintiff alleges that the Individual Defendants
committed the challenged actions while they were in uniform and on duty as special patrolmen
and pursuant to their authority under the Administrative Code as special patrolmen. (FAC ¶¶ 15,
49.) Plaintiff further alleges that the Individual Defendants searched, arrested, and used force
against Plaintiff in their capacities as special patrolmen. (Id. ¶¶ 24–31.) In addition, after the
arrest, the Individual Defendants detained Plaintiff in their custody at the hospital in their
capacities as special patrolmen. (Id. ¶ 33.) Finally, the Individual Defendants are alleged to
have provided false statements to the Bronx County District Attorney’s Office concerning
Plaintiff’s arrest—which were the basis for the charges brought against Plaintiff—in their
capacities as special patrolmen. (Id. ¶¶ 37–41.) All of the Individual Defendants’ allegedly
unlawful acts, therefore, occurred pursuant to power “possessed by virtue of state law and made
possible only because [the Individual Defendants were] clothed with the authority of state law.”
Polk Cty., 454 U.S. at 317–18 (internal quotation marks omitted).
Because I find that the Individual Defendants acted under the color of state law, I next
9
turn to the issue of whether Defendant PNC also acted under the color of state law; I find that it
did. Defendant PNC hired and employed the Individual Defendants to provide security services
in furtherance of the interests of Defendant PNC. (FAC ¶¶ 12, 14, 49, 75.) At the time of the
challenged conduct, the Individual Defendants were on duty as special patrolmen and acting
within the scope of their employment by Defendant PNC. (Id. ¶ 49.) Therefore, Defendant
PNC’s “decision to employ . . . special patrolm[e]n involve[d] a utilization for [Defendant
PNC’s] benefit of state law enforcement authority sufficient to satisfy section 1983’s under color
of state law requirement.” Rojas, 654 F. Supp. at 858 (internal quotation marks omitted).
2. Policy or Custom
Even if Defendant PNC acted under the color of state law, it is not liable under § 1983
unless Plaintiff has alleged (1) the existence of a policy or custom of Defendant PNC, and (2)
that such policy or custom caused Plaintiff’s injury. The Supreme Court has held that the
unconstitutional acts of an individual employee under §1983 do not confer liability upon her
employer; liability under §1983 attaches only when an entity has “caused” a constitutional
deprivation. Monell v. Dep’t of Soc. Servs. of City of N.Y., 436 U.S. 658, 692 (1978). Therefore,
just as municipal corporations are not liable under § 1983 under a theory of respondeat superior,
id. at 694, “[p]rivate employers are not liable under § 1983 for the constitutional torts of their
employees unless the plaintiff proves that ‘action pursuant to official policy of some nature
caused a constitutional tort,” Rojas, 924 F.2d at 408 (quoting Monell, 436 U.S. at 691) (internal
citations and emphasis omitted); accord Green v. City of N.Y., 465 F.3d 65, 82 (2d Cir. 2006)
(finding that a private hospital “is not vicariously liable for any constitutional torts that its
employees may have committed”); Fisk v. Letterman, 401 F. Supp. 2d 362, 375 (S.D.N.Y. 2005)
(noting that “a private corporation could be held liable under Section 1983 for its own
10
unconstitutional policies”). Liability attaches only when a plaintiff establishes “a causal link
between an official policy or custom and the plaintiff[’s] injury.” Batista v. Rodriguez, 702 F.2d
393, 397 (2d Cir. 1983).
“[I]solated acts . . . by non-policymaking municipal employees are generally not
sufficient to demonstrate a municipal custom, policy, or usage that would justify municipal
liability.” Jones v. Town of E. Haven, 691 F.3d 72, 81 (2d Cir. 2012). However,
such acts would justify liability of a municipality if, for example, they were done
pursuant to municipal policy, or were sufficiently widespread and persistent to
support a finding that they constituted a custom, policy, or usage of which
supervisory authorities must have been aware, or if a municipal custom, policy, or
usage would be inferred from evidence of deliberate indifference of supervisory
officials to such abuses.
Id. At the pleading stage, a plaintiff “must give a factual description of such a policy, not just
bald allegations that such a thing existed.” Bess v. City of N.Y., 11 Civ. 7604(TPG), 2013 WL
1164919, at *2 (S.D.N.Y. Mar. 19, 2013).
Plaintiff does not allege that Defendant PNC had an express policy that caused Plaintiff’s
injuries. Rather, Plaintiff’s allegations appear to fall into the second and third categories
articulated in Jones: (1) acts that “were sufficiently widespread and persistent” to constitute “a
custom, policy, or usage of which supervisory authorities must have been aware,” and (2) a
custom, policy, or usage that could “be inferred from evidence of deliberate indifference of
supervisory officials to such abuses.” 691 F.3d at 81. I address each theory in turn.
a. Widespread and Persistent Acts
“The policy or custom used to anchor liability need not be contained in an explicitly
adopted rule or regulation.” Sorlucco v. N.Y.C. Police Dep’t, 971 F.2d 864, 870 (2d Cir. 1992).
A court may find that an entity has a custom that caused a constitutional violation when, “faced
with a pattern of misconduct, it does nothing, compelling the conclusion that it has acquiesced in
11
or tacitly authorized its subordinates’ unlawful actions.” Okin v. Vill. of Cornwall-On-Hudson
Police Dep’t, 577 F.3d 415, 439 (2d Cir. 2009). The misconduct must be so “persistent and
widespread” as to “constitute a custom or usage with the force of law.” Sorlucco, 971 F.2d at
870–71 (internal quotation marks omitted). In other words, to prevail under this theory of
liability, a plaintiff must allege that the practice is “permanent and well-settled” within the
institution, City of St. Louis v. Praprotnik, 485 U.S. 112, 127 (1988) (internal quotation marks
omitted), such that it can be said to be the institution’s “standard operating procedure,” Jett v.
Dallas Indep. Sch. Dist., 491 U.S. 701, 737 (1989) (internal quotation marks omitted).
To support a finding of an unconstitutional custom or policy on the part of Defendant
PNC, the FAC lists fourteen other lawsuits allegedly initiated against Defendant PNC that
involve “similarly wrongful conduct.” (FAC ¶ 68.) The FAC lists the name of each lawsuit, its
docket number, and the court in which the action was brought. (Id.) It also lists the date of the
alleged misconduct for ten of the lawsuits, which ranges from 1998 to 2014. (Id.) For each
lawsuit, the FAC includes a short description of the facts involved in the litigation. (Id.) For six
of the lawsuits, the FAC describes the allegations made in the complaint. (E.g., id. ¶ 68(c)
(“False arrest, false imprisonment, excessive force, and malicious prosecution allegations against
PDSP Special Patrolmen pursuant to 42 U.S.C. § 1983.”).) For the eight other lawsuits, the FAC
does not state whether it describes the allegations in the complaint or findings of fact made by a
court or a jury. (E.g., id. ¶ 68(d) (“PDSP Special Patrolmen subjected Mr. Berry to excessive
force and false arrest, before forwarding false information to the District Attorney’s Office.”).)
The FAC does not describe the ultimate disposition of any of the lawsuits.
The FAC’s reference to other lawsuits over the span of nearly two decades involving
allegedly similar unlawful conduct without any allegations as to the ultimate disposition of those
12
lawsuits is insufficient to allege a practice so widespread and persistent as to amount to a policy
or custom of Defendant PNC. Plaintiff’s description of each lawsuit indicates conduct similar to
that challenged here, but Plaintiff fails to allege that any of the lawsuits resulted in an
adjudication of liability against any of the defendants involved in the lawsuits, let alone against
Defendant PNC.6 These allegations do not plausibly allege a widespread and persistent practice
sufficient to infer a policy or custom for Monell liability.7 See Walker v. City of N.Y., No. 14CV-808 (ER), 2015 WL 4254026, at *9 (S.D.N.Y. July 14, 2015) (finding that allegations of
thirty-six lawsuits involving allegedly false arrests, none of which resulted in an adjudication or
finding of liability, over the span thirteen years, were “insufficient to plausibly support an
inference of a widespread custom”); Tieman v. City of Newburgh, No. 13-CV-4178 (KMK),
2015 WL 1379652, at *17 (S.D.N.Y. Mar. 26, 2015) (finding that “allegations of thirteen
instances of excessive force during arrests over four years (none of which involved findings or
admissions of culpability) . . . do[] not plausibly demonstrate that the use of excessive force
during arrest was so frequent and pervasive to constitute a custom”); Walker v. City of N.Y., No.
12 Civ. 5902(PAC), 2014 WL 1259618, at *3 (S.D.N.Y. Mar. 18, 2014) (finding that plaintiff’s
reliance on ten complaints, “none resulting in an adjudication of liability,” over the span of a
decade, “hardly suggests the frequency or pervasiveness of the purported custom that is required
6
Defendants note that twelve of the lawsuits listed by Plaintiff do not include Defendant PNC in the case title.
(Defs.’ Mem. 6–7.) However, this result may be due—at least in part—to Plaintiff’s listing of only the first named
defendant in the case title. I performed an independent review of the publicly available electronic dockets of the
seven lawsuits listed by Plaintiff filed in federal court, as the electronic dockets were unavailable for the lawsuits
filed in state court. My review revealed that three of the seven actions brought in federal court did not actually name
Defendant PNC as a defendant. (FAC ¶ 68(h), (i), (k).) Of the seven actions brought in state court, the FAC lists
only one that names Defendant PNC as the first defendant. (Id. ¶ 68(a).) The description listed under another state
court action indicates that there were “[a]llegations against PNC.” (Id. ¶ 68(e).) Therefore, based on the allegations
in the FAC and my independent review, I can only confirm that six of the fourteen lawsuits listed in the FAC named
Defendant PNC as a defendant. (See id. ¶ 68(a), (b), (e), (j), (l), (m).)
7
Even if Plaintiff had alleged the ultimate disposition of each lawsuit, my independent review of the federal lawsuits
listed by Plaintiff reveals that none have resulted in a finding or admission of liability against Defendant PNC, and
one of the cases is still pending.
13
to state a Monell claim”); accord Strauss v. City of Chicago, 760 F.2d 765, 768–69 (7th Cir.
1985) (“[T]he number of complaints filed, without more, indicates nothing. People may file a
complaint for many reasons, or for no reason at all. That they filed complaints does not indicate
that the policies that [plaintiff] alleges exist do in fact exist and did contribute to his injury.”);
Rikas v. Babusch, No. 13 cv 2069, 2014 WL 960788, at *3 (N.D. Ill. Mar. 12, 2014) (“[E]ach
suit was ultimately settled and there was no finding of liability. Thus, the fact that prior lawsuits
were filed against [defendant] does not support [plaintiff’s] Monell claim nor does it evidence a
widespread municipal practice.”); see also Collins v. City of N.Y., 923 F. Supp. 2d 462, 479
(E.D.N.Y. 2013) (“[T]he litany of other police-misconduct cases are insufficient to make a
plausible case for Monell liability.”).
While it is true that courts may take judicial notice of filings in other lawsuits, they do so
“not for the truth of the matters asserted in the other litigation, but rather to establish the fact of
such litigation and related filings.” Kramer v. Time Warner, Inc., 937 F.2d 767, 774 (2d Cir.
1991). The fact that other plaintiffs have initiated lawsuits against Defendant PNC and other
defendants alleging similar wrongful conduct does not establish that Defendant PNC committed
the wrongful conduct alleged. See Walker, 2015 WL 4254026, at *9 (“It is not within this
Court’s purview to assess the veracity of either the claims of outside plaintiffs, or the defenses
presented against them in cases that have settled or are pending before other judges.”). A
handful of unsubstantiated complaints is not enough to plausibly plead a widespread and
persistent policy or practice. See Tieman, 2015 WL 1379652, at *17; Walker, 2014 WL
1259618, at *3. Therefore, Plaintiff fails to allege Monell liability under this theory.
14
b. Deliberate Indifference
Plaintiff also presses a claim against Defendant PNC under a theory that Defendant PNC
failed to train and/or supervise its employees. (FAC ¶ 67; Pl.’s Opp. 9–10.) A defendant’s
failure to train or supervise its employees may constitute an official policy or custom “if the
failure amounts to ‘deliberate indifference’ to the rights of those with whom the . . . employees
interact.” Wray v. City of N.Y., 490 F.3d 189, 195 (2d Cir. 2007) (quoting City of Canton v.
Harris, 489 U.S. 378, 388 (1989)). In such cases, a plaintiff must show that a policymaking
official had notice “of a potentially serious problem of unconstitutional conduct, such that the
need for corrective action or supervision was obvious, and the policymaker’s failure to
investigate or rectify the situation evidences deliberate indifference.” Amnesty Am. v. Town of
W. Hartford, 361 F.3d 113, 128 (2d Cir. 2004) (internal citation and quotation marks omitted).
A “policy of inaction in light of notice” that an entity’s training or supervision program will
cause constitutional violations “is the functional equivalent of a decision by the [entity] to violate
the Constitution.” Connick v. Thompson, 563 U.S. 51, 61–62 (2011) (internal quotation marks
omitted).
Courts in this circuit have adopted three requirements a plaintiff must meet to establish
§ 1983 liability for an entity’s failure to train or supervise:
First, the plaintiff must show that a policymaker knows to a moral certainty that her
employees will confront a given situation . . . . Second, the plaintiff must show that
the situation either presents the employee with a difficult choice of the sort that
training or supervision will make less difficult or that there is a history of employees
mishandling the situation . . . . Finally, the plaintiff must show that the wrong choice
by the city employee will frequently cause the deprivation of a citizen’s
constitutional rights.
Walker v. City of N.Y., 974 F.2d 293, 297–98 (2d Cir. 1992) (internal quotation marks omitted).
A plaintiff who has established all three elements has established “the circumstances under
15
which a supervisor’s failure to act triggers liability under § 1983.” Reynolds v. Giuliani, 506
F.3d 183, 192 (2d Cir. 2007).
The Supreme Court has made clear that “deliberate indifference is a stringent standard of
fault, requiring proof that a[n entity] disregarded a known or obvious consequence of [its]
action.” Connick, 563 U.S. at 61 (internal quotation marks omitted). An entity’s culpability “is
at its most tenuous where a claim turns on a failure to train.” Id. The “stringent causation and
culpability requirements” in the failure to train context “have been applied to a broad range of
supervisory liability claims, including claims for failure to supervise and failure to discipline.”
Tieman, 2015 WL 1379652, at *19 (quoting Reynolds, 506 F.3d at 192).
With respect to a claim for failure to supervise, “the plaintiff must show that the need for
more or better supervision to protect against constitutional violations was obvious.” Vann v. City
of N.Y., 72 F.3d 1040, 1049 (2d Cir. 1995). “An obvious need may be demonstrated through
proof of repeated complaints of civil rights violations; deliberate indifference may be inferred if
the complaints are followed by no meaningful attempt on the part of the [entity] to investigate or
to forestall further incidents.” Id.
Plaintiff has adequately alleged that Defendant PNC was on notice of an “obvious need”
for more or better supervision. Although past complaints are insufficient to establish liability
under a “widespread practice” theory, they do support a theory of failure to supervise. Id. (“An
obvious need may be demonstrated through proof of repeated complaints of civil rights
violations . . . .”); Tieman, 2015 WL 1379652, at *20 (noting that while “[t]here is no bright line
rule for how many complaints of civil rights violations is sufficient to show the need for more
supervision, nor is there a bright line rule for how recent those complaints must be . . . thirteen
claims alleged in nine lawsuits in five years” is sufficient to establish notice). Plaintiff’s
16
allegations of prior or pending lawsuits alleging similar misconduct against Defendant PNC,
(FAC ¶ 68), raise a plausible inference that Defendant PNC was put on notice of potential
constitutional violations by its employees.
However, these allegations are not enough to establish deliberate indifference. Plaintiff
must also allege that Defendant PNC engaged in “no meaningful attempt . . . to investigate or to
forestall further incidents.” Vann, 72 F.3d at 1049. Here, Plaintiff submits only “[t]hreadbare
recitals of the elements of a cause of action, supported by mere conclusory statements.” Iqbal,
556 U.S. at 678; see also Walker, 2015 WL 4254026, at *7. For example, Plaintiff alleges
several purported “policies, practices, and actions of PNC” that relate to Defendant PNC’s
purported failure to supervise: (1) deliberate indifference to aggressive and violent actions or
propensities of the PDSP; (2) systematic creation of an environment in which employees fail to
use due diligence when exercising their authority; (3) deliberate indifference to verifying
whether a seizure, stop, arrest, or use of force is constitutionally permissible; (4) ineffective
oversight and supervision of activities and arrests by the PDSP; and (5) failure to institute
remedial measures or other disincentives for PDSP Special Patrolmen who violate constitutional
rights. (FAC ¶ 67.) In addition, Plaintiff alleges that Defendant PNC “had de facto policies,
practices, customs, and usages of failing to properly train, screen, supervise, or discipline its
employees and agents, and of failing to inform the individual Defendants’ supervisors, of their
need to train, screen, supervise, or discipline said employees and agents.” (Id. ¶ 70.) Plaintiff
has merely asserted these conclusory and generalized statements without providing any factual
support for these allegations. For example, Plaintiff fails to allege that Defendant PNC failed to
investigate any of the specific complaints listed in the FAC, or that it performed a half-hearted
investigation demonstrating that it was uninterested in determining the facts of those complaints,
17
or that it determined that there was a basis for the complaints yet chose not to act. See Yang
Feng Zhao v. City of N.Y., 656 F. Supp. 2d 375, 397 (S.D.N.Y. 2009). Simply stating the phrases
“deliberate indifference,” “ineffective oversight and supervision,” and “fail[ure] to institute
remedial measures,” (FAC ¶ 67), without more, is not enough to “nudge[] [Plaintiff’s] claims
across the line from conceivable to plausible,” Twombly, 550 U.S. at 547.
With regard to Plaintiff’s failure to train claim, “a plaintiff must plausibly allege a
specific deficiency in the [entity’s] training.” Tieman, 2015 WL 1379652, at *22. It is true that
the Second Circuit has held that a plaintiff need not plead specific details regarding a defendant’s
training program at the motion to dismiss stage. See Amnesty, 361 F.3d at 130 n.10 (“It is
unlikely that a plaintiff would have information about the city’s training programs or about the
cause of the misconduct at the pleading stage, and therefore need only plead that the city’s
failure to train caused the constitutional violation.”). However, since the Supreme Court’s
rulings in Twombly and Iqbal, courts in this Circuit have required “more than a simple recitation
of [a plaintiff’s] theory of liability, even if that theory is based on a failure to train,” Simms v.
The City of N.Y., No. 10-CV-3420 (NGG)(RML), 2011 WL 4543051, at *2 n.3 (E.D.N.Y. Sept.
28, 2011) (listing cases and stating that “[i]t may well be that plaintiffs cannot be expected to
know the details of a municipality’s training program without discovery, but that does not relieve
them from the obligation to plead facts sufficient for a court to reasonably infer that some type of
municipal policy, practice, or custom—including deliberate indifference to the population’s
constitutional rights—caused an employee training program to be deficient”), aff’d, 480 F.
App’x 627 (2d Cir. 2012) (summary order); see also Tieman, 2015 WL 1379652, at *22 (listing
cases); Walker, 2015 WL 4254026, at *11.8
8
Plaintiff contends that this Circuit has yet to decide whether Iqbal applies to claims for municipal liability under a
18
Plaintiff’s allegations fail to state more than a “simple recitation” of Plaintiff’s theory of
liability. For example, the FAC alleges that Defendant “PNC knew or should have known that
the individual Defendants . . . lacked proper training to carry out the duties to which they were
assigned.” (FAC ¶ 17.) Defendant PNC allegedly had “policies, practices, and actions” that
included “[i]neffectively training employees in identifying what constitutes the Constitutionally
permissible bounds of authority conferred unto them as Special Patrolmen.” (Id. ¶ 67.) In
addition, Defendant PNC “had de facto policies, practices, customs, and usages of failing to
properly train . . . its employees and agents.” (Id. ¶ 70.) None of these allegations provide any
details with respect to what Defendant PNC’s training programs were, who developed or
administered them, or what the deficiencies were. Plaintiff also fails to allege any facts
describing how Defendant PNC’s purported failure to train specifically caused his constitutional
deprivation. Plaintiff’s conclusory statements are insufficient to state a claim for failure to train.
Because the FAC fails to plausibly allege a policy, custom, or practice on the part of
Defendant PNC that caused Plaintiff’s alleged constitutional deprivation, Plaintiff’s Second
Cause of Action against Defendant PNC is dismissed.
failure to train theory. (Pl.’s Opp. 9–10 (citing Castilla v. City of N.Y., No. 09 Civ. 5446(SHS), 2012 WL 3871517,
at *4 (S.D.N.Y. Sept. 6, 2012) (finding that “[t]he Second Circuit has not yet addressed whether Iqbal has
heightened the pleading requirements for such a municipal liability claim” and citing district court cases applying
“the pleading standard articulated in Amnesty to a Monell claim based on a failure to train”)).) However, Castilla
and the opinions it cites ignore the clear holding of Iqbal. The Supreme Court in Iqbal held that “[t]hough Twombly
determined the sufficiency of a complaint sounding in antitrust, the decision was based on our interpretation and
application of [Federal] Rule [of Civil Procedure] 8. That Rule in turn governs the pleading standard ‘in all civil
actions and proceedings in the United States district courts.’” 556 U.S. at 684 (quoting Fed. R. Civ. P. 1) (internal
citation omitted). Plaintiff fails to provide any authority holding that Rule 8 does not apply to Monell claims for a
failure to train. Because Iqbal interpreted the pleading standard set forth in Rule 8, its holding controls in
determining the sufficiency of Plaintiff’s pleadings here.
19
B.
Negligent Hiring and Retention
Plaintiff brings his Third Cause of Action under the laws of New York, alleging that
Defendant PNC “negligently hired, screened, retained, supervised, and trained” Defendants Frye
and Sullivan. (FAC ¶¶ 72–77.)9 New York law has long recognized the tort of negligent hiring
and retention. See Gonzalez v. City of N.Y., 17 N.Y.S.3d 12, 15 (1st Dep’t 2015). An employer
may be liable for negligent hiring and retention
when the employer has either hired or retained the employee with knowledge of the
employee’s propensity for the sort of behavior which caused the injured party’s
harm. The employer’s negligence lies in his having placed the employee in a
position to cause foreseeable harm, harm which would most probably have been
spared the injured party had the employer taken reasonable care in making
decisions respecting the hiring and retention of his employees.
Detone v. Bullit Courier Serv., Inc., 528 N.Y.S.2d 575, 576 (1st Dep’t 1988) (internal citation
omitted); see also Harisch v. Goldberg, 14-cv-9503 (KBF), 2016 WL 1181711, at *14 (S.D.N.Y.
Mar. 25, 2016) (indicating that plaintiff must allege “that the defendant knew or should have
known of its employee’s propensity to engage in the conduct that caused the plaintiff’s injuries,
and that the alleged negligent hiring, supervision, or retention was a proximate cause of those
injuries”) (internal quotation marks omitted). “This tort applies equally to municipalities and
private employers,” Gonzalez, 17 N.Y.S.3d at 15, and it requires a plaintiff to establish that the
employee was acting outside the scope of his or her employment, Gray v. Schenectady City Sch.
Dist., 927 N.Y.S.2d 442, 446 (3d Dep’t 2011).
Here, the FAC contains no allegations regarding any violent or dishonest propensities or
tendencies of Defendant Frye or Defendant Sullivan. Plaintiff does not allege any facts
9
The FAC does not specify whether the Third Cause of Action is brought against Defendant PNC as a claim for
negligent hiring and retention or as a claim for negligence under a theory of respondeat superior. (See FAC ¶¶ 72–
77.) However, Plaintiff notes that he “has not alleged any negligence claims against the individual Defendant
officers.” (Pl.’s Opp. 8 n.3.) It follows, therefore, that the negligence claim against Defendant PNC can only
proceed under a theory of negligent hiring and retention.
20
indicating that either Defendant had a violent or criminal history or that they previously lied
under oath. Nor does Plaintiff allege that any of the fourteen lawsuits listed were initiated
against Defendants Frye or Sullivan. (See FAC ¶ 67.) The FAC’s only reference to any
propensity for misconduct on behalf of Defendants Frye or Sullivan is that Defendants PNC and
City of New York “knew or should have known that the individual Defendants were prone to
violence,” (id. ¶¶ 17–18), and that Defendant “PNC knew or should have known through the
exercise of reasonable diligence that PDPS Special Patrolmen were dangerous,” (id. ¶ 76).
These conclusory allegations, without any supporting facts, are insufficient to plead a claim for
negligent hiring and retention.
Even if Plaintiff had adequately pleaded that Defendants Sullivan or Frye had violent or
dishonest propensities, the FAC would still be insufficient because it contains no allegations that
Defendants Sullivan or Frye acted outside the scope of their employment. To the contrary, the
FAC specifically alleges that the acts of Defendants Sullivan and Frye occurred while they were
“acting within the scope of their employment” by Defendant PNC. (Id. ¶¶ 20, 49.) While a
Plaintiff may plead certain causes of action in the alternative, the FAC is devoid of allegations
that Defendants Sullivan or Frye acted outside the scope of their employment, and it does not
indicate that the Third Cause of Action is intended to have been pled in the alternative. (Id. ¶¶
72–77.) As such, Plaintiff’s Third Cause of Action is dismissed.
21
Conclusion
For the foregoing reasons, Defendants’ motion to dismiss is GRANTED. The Clerk of
Court is respectfully directed to terminate Parkchester North Condominium as a defendant in this
action and to terminate Docket No. 49. The Individual Defendants are instructed to file their
Answers to the FAC within twenty-one (21) days of the entry of this Opinion & Order.
SO ORDERED.
Dated: June 13, 2018
New York, New York
______________________
Vernon S. Broderick
United States District Judge
22
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