Billips v. NYC DOCS

Filing 43

OPINION AND ORDER re: 33 MOTION to Dismiss the Complaint against the City of New York Pursuant to Fed. R. Civ. P. 12(b)(6) filed by City Of New York. For the reasons set forth above, the City's motion to dismiss the Amende d Complaint is GRANTED. The Court certifies, pursuant to 28 USC § 1915(a)(3), that any appeal from this Order should be taken in good faith, and therefore in forma pauperis status is denied for the purpose of an appeal. See Coppedge v. Unit ed States, 369 U.S. 438, 444-45 (1962). Chambers will mail a copy of this order to the Plaintiff, addressed to Alkim Billips, DIN No. 19-A-1457, Elmira Correctional Facility, P.O. Box 500 Elmira, New York 14901. The Clerk of the Court is respectfully directed to terminate the motion, Doc. 33, and close the case. (Signed by Judge Edgardo Ramos on 4/7/2020) (mro) Transmission to Orders and Judgments Clerk for processing.

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
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:
ALKIM BILLIPS,
:
:
Plaintiff,
:
:
-v:
:
NYC DOCS et al., CITY OF NEW YORK,
:
and JOHN DOE CORRECTION OFFICER, :
:
Defendants.
:
:
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OPINION AND ORDER
18 Civ. 1719 (ER)

EDGARDO RAMOS, United States District Judge:
Pro se Plaintiff Alkim Billips (“Billips” or “Plaintiff”) brought this action pursuant to 42
U.S.C. § 1983, alleging that while he was detained at Manhattan Detention Complex (“MDC”), a
correction officer forced him to live with rival gang members and publicly announced Billips’
gang affiliation to them. On March 2, 2018, this Court dismissed the claims against the New
York City Department of Correction (“NYC DOC”) and added the City of New York (“the
City”) and “John Doe Correction Officer” (“John Doe”) as defendants. Doc. 6. On May 8,
2018, the Court granted the City’s motion to dismiss the Complaint but gave Billips leave to file
an Amended Complaint. Doc. 29. Billips filed an Amended Complaint on June 10, 2019. Doc.
30. Before the Court is the City’s motion to dismiss the Amended Complaint pursuant to Federal
Rule of Civil Procedure 12(b)(6) for failure to state a claim. Doc. 33. For the reasons set forth
below, the City’s motion is GRANTED.

BACKGROUND
The Court accepts the following allegations as true for purposes of this motion. 1 On
January 17, 2018, Billips was a pretrial detainee at the MDC. Doc. 2, 2–4. Billips was assigned
a Security Risk Group (“SRG”) classification because of his membership in the Crips gang.
Doc. 2, 4. In the Complaint, Billips said he bears the stigma of this SRG classification of Crip.
Id. In the Amended Complaint, Billips asserts for the first time that he is a not a gang member
but that “some persons” decided that he “was in fact a Crip” and that he knew nothing of the
label. Doc. 30, 4.
Billips alleges that “a group of correction officers” purposefully assigned him to live in a
housing area that houses members of the rival Bloods gang. Id. Billips only names one of the
officers, “Officer Wi,” who during an angry tirade publicly informed the residents in that
housing area that Billips was a Crip and told Billips he “wouldn’t survive.” Id. As a result of
Officer Wi’s public announcement, Bloods gang members questioned him daily and assaulted
him on one occasion. Doc. 2, 4. Billips suffered pain to his face, temple, neck, and back as a
result of the assault. Doc. 2, 5. He received a medical examination for his injuries and a number
of his teeth were “prematurely extracted.” Doc. 30, 4.
In the Amended Complaint, Billips alleges that Officer Wi’s decision to not house him, a
person with SRG classification, with others in the same classification went against the NYC

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Some of these allegations appear in filings other than the complaint; specifically, this opinion relies on allegations
in the original complaint and Billips’ opposition to the motion to dismiss. “[I]n cases where a pro se plaintiff is
faced with a motion to dismiss, it is appropriate for the court to consider materials outside of the complaint to the
extent they are consistent with the allegations in the complaint.” Donhauser v. Goord, 314 F. Supp. 2d 119, 121
(N.D.N.Y. 2004) (quotation marks omitted) (collecting district court cases); see also Gill v. Mooney, 824 F.2d 192,
195 (2d Cir. 1987) (considering allegations in pro se plaintiff’s opposition to motion to dismiss).

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DOC’s policy. Id. Furthermore, he alleges that had, presumably, Officer Wi “been better
trained[,]” he would not have been assaulted. Id.
PROCEDURAL HISTORY
Billips filed the instant action against NYC DOC on February 23, 2018. Doc. 2, 1. This
Court dismissed Billips’ claims against NYC DOC because city agencies or departments do not
have the capacity to be sued under New York law. Doc. 6, 4. Instead, the Court construed the
Defendants to be the City and John Doe, pursuant to Fed. R. Civ. P. 21. Id. In the February 23,
2018 complaint, Billips described John Doe as the officer who launched the angry tirade at
Billips during which he informed the Bloods gang housing unit that Billips was a Crip. Doc 2, 4.
This Court issued a Valentin Order requiring the City to identify the John Doe officer.
Doc. 6, 3. On June 28, 2018, this Court granted the City’s letter motion to compel Billips to
respond to their identification interrogatories and granted the City more time to respond to the
Valentin Order. Doc 16, 1. During discovery, Billips only provided “vague details” and “did not
provide a date or even a time frame for when the alleged incident occurred, despite defendant
City’s request for this information.” Doc. 21, 2. Billips responded to the City’s identification
interrogatories by stating that John Doe “was an Asian male ‘on 3 to 11 shift, 6E 125 White
Street.’” Id.
On August 30, 2018, the City informed the Court that they were unable to identify the
correction officer despite “a diligent investigation” and requested a briefing schedule to file a
motion to dismiss. Doc. 21, 2–3. Specifically, the City was “unable to ascertain the full name
and/or shield number of the individual identified in [Billips’] complaint as ‘John Doe Correction
Officer.’” Id. The City filed a motion to dismiss the complaint on October 12, 2018, arguing
that Billips failed to state a claim for municipal liability against the City of New York, and that
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his claims against the John Doe Correction Officer should be dismissed because the parties are
unable to determine the identity of this officer. Doc. 23. Billips filed an opposition to the City’s
motion on November 20, 2018 and asserted a failure to train theory; the City replied via letter on
November 27, 2018. Docs. 26, 27.
On May 8, 2019, the Court granted the City’s motion to dismiss because Billips failed to
identify the John Doe correction officer and did not sufficiently plead facts to make a § 1983
claim against the City. Doc. 29. Billips filed the Amended Complaint on June 10, 2019. Doc.
30. On September 11, 2019, the City filed a motion to dismiss the Amended Complaint. Doc.
33. Billips opposed the motion on January 3, 2020 from the Elmira Correctional Facility, which
is not his address of record. Doc. 39. The Court directed Billips to update his address on the
civil docket and mailed a copy of the Order to him at the Elmira Correctional Facility on January
7, 2020. Doc. 40. Billips has yet to update his address. The City replied to the motion via letter
on January 13, 2020. Doc. 41.
DISCUSSION
I. Standard of Review
When ruling on a motion to dismiss pursuant to Fed. R. Civ. Pro. 12(b)(6), district courts
are required to accept as true all factual allegations in the complaint and to draw all reasonable
inferences in plaintiff’s favor. Walker v. Schult, 717 F.3d 119, 124 (2d Cir. 2013). However,
this requirement does not apply to legal conclusions, bare assertions, or conclusory allegations.
Ashcroft v. Iqbal, 556 U.S. 662, 678, 681, 686 (2009) (citing Bell Atl. Corp. v. Twombly, 550
U.S. 544, 555 (2007)). To satisfy the pleading standard under Fed. R. Civ. Pro. 8, a complaint
must contain sufficient factual matter to state a claim to relief that is plausible on its face. Iqbal,
556 U.S. at 678 (citing Twombly, 550 U.S. at 570). Accordingly, a plaintiff is required to
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support his claims with sufficient factual allegations to show “more than a sheer possibility that a
defendant has acted unlawfully.” Id.
When “the complaint [is] filed pro se, it must be construed liberally “to raise the
strongest arguments [it] suggest[s].” Walker, 717 F.3d at 124. The obligation to read a pro se
litigant’s pleadings leniently “applies with particular force when plaintiff’s civil rights are at
issue.” Jackson v. NYS Dep't of Labor, 709 F.Supp.2d 218, 224 (S.D.N.Y. 2010) (citing
McEachin v. McGuinnis, 357 F.3d 197, 200 (2d Cir. 2004)). “However, even pro se plaintiffs
asserting civil right claims cannot withstand a motion to dismiss unless their pleadings contain
factual allegations sufficient to raise a ‘right to relief above the speculative level.’” Id. (quoting
Twombly, 550 U.S. at 555).
II. Discussion
A. Failure to Serve Correction Officer
Billips’ claim against John Doe must be dismissed because he has failed to serve him. A
plaintiff “‘who is ignorant, in whole or in part, of the name or identity of a person who may
properly be made a party,’ may proceed against that party by designating a fictitious name (a
“John Doe”) until they become aware of that party’s identity.” Barrett v. City of Newburgh, 720
F. App'x 29, 33 (2d Cir. 2017) (citing N.Y. C.P.L.R. 1024 (McKinney 2019)). However, Billips
has now purportedly identified the John Doe correction officer and has failed to serve him. Doc.
30. If a defendant is not served within 90 days after the complaint is filed, the Court—on motion
or on its own after notice to the plaintiff—must dismiss the action without prejudice against that
defendant or order service be made within a specific time. Fed. R. Civ. P. 4(m).
Here, the City states that because Officer Wi has not yet been served with process in this
matter the City remains the only defendant in this litigation. Doc. 35, 2. Billips filed the
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Amended Complaint on June 10, 2019 and has missed the 90-day window in which to serve
Officer Wi. Doc. 30. Accordingly, the claims against John Doe, identified by Billips as Officer
Wi, are dismissed without prejudice.
B.

Failure to State a Claim Under § 1983

Billips has not pled sufficient facts to make a § 1983 claim against the City. To hold a
municipality liable within the meaning of § 1983, a plaintiff must establish that a policy or
custom of the municipality itself caused the constitutional injury. Monell v. Dep't of Soc. Servs.
of City of New York, 436 U.S. 658, 694 (1978) (“[I]t is when execution of a government's policy
or custom, whether made by its lawmakers or by those whose edicts or acts may fairly be said to
represent official policy, inflicts the injury that the government as an entity is responsible under §
1983.”).
A plaintiff must also establish a causal link between the municipality’s policy or custom
and plaintiff’s constitutional deprivation of rights. A City “cannot be liable under Monell where
plaintiff cannot establish a violation of his constitutional rights.” Askins v. Doe No. 1, 727 F.3d
248, 253 (2d Cir. 2013). Plaintiff needs to provide evidence of a “deliberate action attributable
to the municipality itself [as] the ’moving force’ behind plaintiff's deprivation of federal rights.”
Bd. of Cty. Comm'rs of Bryan Cty., Okl. v. Brown, 520 U.S. 397, 400 (1997) (quoting Monell,
436 U.S. at 694); accord Aquino v. City of New York, No. 1:16-CV-1577-GHW, 2017 WL
384354, at *3 (S.D.N.Y. Jan. 25, 2017) (holding, in a case involving the NYC DOC, “[a]
municipality is not vicariously liable for its employees’ actions under 42 U.S.C. § 1983.”).
Billip’s opposition to the motion to dismiss the Amended Complaint is nearly identical to
his opposition to the motion to dismiss the Complaint. See Docs. 26, 39. Billips added Officer
Wi’s name and advanced new case law relating to deliberate indifference claims against prison
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personnel. Doc. 39, 3–6. He claims “the City knew or should have known that a specific assault
was likely to occur, had an opportunity to intervene but failed to act or otherwise failed to
properly supervise its employees.” Id. at 4. See Aquino, 2017 WL 384354, at *5 (“A
municipality’s culpability for a deprivation of rights is at its most tenuous where a claim turns on
a failure to train.”) (citation omitted).
In order for municipal liability to attach to a failure to train theory, the plaintiff must
show the municipality’s failure to train its employees amounted to deliberate indifference to the
rights of persons with whom the untrained employees came into contact. Id. A plaintiff must
show that the municipality made a deliberate choice from among various alternatives to not fully
train its employees. Walker v. City of New York, 974 F.2d 293, 297 (2d Cir. 1992). Here, the
Amended Complaint is deficient because Billips does not make any allegation about a City
policy that led to a deprivation of his rights. Doc. 35, 5. Instead, he simply references a NYC
DOC policy. Doc. 30, 4.
Furthermore, even if Billips had asserted a policy against the City, he has not identified a
specific deficiency in the City’s training program or that any such deficiency is “closely related
to the ultimate injury.” See Triano v. Town of Harrison, 895 F. Supp. 2d 526, 539 (S.D.N.Y.
2012) (dismissing Monell claim where plaintiff “merely alleged that the town failed to train its
employees, without providing any supporting factual detail about alleged deficiencies in the
training program, or regarding other instances of [] misconduct which could be attributed to a
failure to train”).
Lastly, Billips’ claim of this single, isolated incident is insufficient as a matter of law to
give rise to an inference of a systemic informal practice that can support a municipal liability
claim. As the Court held in its May 8, 2019 Order, a failure to train theory requires evidence of a
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pattern of similar incidents in which citizens were injured or endangered. Doc. 29, 8 (citing City
of Canton v. Harris, 489 U.S. 378, 397–98 (1989) (O’Connor, J., concurring)). Accordingly,
Billips has not pled sufficient facts to make a municipal liability claim against the City.
CONCLUSION
For the reasons set forth above, the City’s motion to dismiss the Amended Complaint is
GRANTED. The Court certifies, pursuant to 28 USC § 1915(a)(3), that any appeal from this
Order should be taken in good faith, and therefore in forma pauperis status is denied for the
purpose of an appeal. See Coppedge v. United States, 369 U.S. 438, 444–45 (1962). Chambers
will mail a copy of this order to the Plaintiff, addressed to Alkim Billips, DIN No. 19-A-1457,
Elmira Correctional Facility, P.O. Box 500 Elmira, New York 14901.
The Clerk of the Court is respectfully directed to terminate the motion, Doc. 33, and close
the case.
SO ORDERED.

Dated: April 7, 2020
New York, New York

________________________
EDGARDO RAMOS
United States District Judge

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