Tatum v. City of New York et al
OPINION AND ORDER re: 35 MOTION to Dismiss . filed by Davis, Facey, Matos, City of New York. For these reasons, the City Defendants' motion to dismiss the Complaint is granted without prejudice to filing an amended compl aint. The Clerk of Court is respectfully directed to terminate the motion pending at Docket Number 35. If Tatum chooses to file an amended complaint, he must do so by October 8, 2021. Because any amended complaint will completely replace, not supp lement, the Complaint, any facts or claims that Tatum wishes to maintain must be included in the amended complaint. If Tatum fails to file an amended complaint by October 8, 2021, and he cannot show good cause to excuse such failure, the Court wil l direct the Clerk of Court to terminate the City, Sergeant Facey, Officer Davis, and Officer Matos as Defendants in this action. If Tatum fails to file an amended complaint by October 8, 2021, the Complaint will remain the operative pleading ag ainst Barnes, who has not moved to dismiss the Complaint, and the Court will issue an order directing Tatum and Barnes to submit a proposed case management plan and scheduling order. Although Tatum consented to receive electronic service in this ac tion, see Dkt. 20, the Clerk of Court is respectfully directed to mail a paper copy of this Opinion and Order to Tatum. ( Amended Pleadings due by 10/8/2021.) (Signed by Judge John P. Cronan on 9/8/2021) (ate) Transmission to Docket Assistant Clerk for processing.
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UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
CITY OF NEW YORK et al.,
19 Civ. 2581 (JPC)
JOHN P. CRONAN, United States District Judge:
In October 2018, Wayne Tatum lived at a shelter and received a package in the mail. Police
officers with the Department of Homeless Services (“DHS”) who worked at the shelter placed the
package through an X-ray machine and asked Tatum to open it and reveal its contents before he
could bring it upstairs. Tatum alleges that this conduct, and other related conduct by three DHS
officers involved in the incident, as well as another individual who allegedly was responsible for
setting policies at the shelter, violated his rights guaranteed by the Fourth Amendment to the United
States Constitution. He brought this action against those individuals and the City of New York in
The City of New York and the three DHS officers brought a motion to dismiss pursuant to
Rule 12(b)(6) of the Federal Rules of Civil Procedure. For the reasons stated below, the Court
grants this motion, but grants Tatum leave to file an amended complaint.
A. Factual Allegations
The following factual allegations are taken from the Complaint, Dkt. 2 (the “Complaint” or
Case 1:19-cv-02581-JPC Document 55 Filed 09/08/21 Page 2 of 14
“Compl.”) and any documents incorporated by reference. See Kleinman v. Elan Corp., 706 F.3d
145, 152 (2d Cir. 2013). The Court “accept[s] as true the factual allegations in the complaint and
draw[s] all inferences in the plaintiff’s favor.” Biro v. Condé Nast, 807 F.3d 541, 544 (2d Cir.
At the time of the filing of the Complaint, Tatum was a “public assistance recipient” who
received benefits through the New York City Human Resources Administration. Compl. ¶ 7. In
2018, Tatum lived at a shelter called the Parkview Inn. Id. ¶ 19. On October 21 of that year, a
security guard told Tatum that he had received a package in the mail. Id. Tatum went downstairs
to retrieve the package. Id. ¶ 20. Officer Davis, a DHS officer who worked at Parkview Inn, id.
¶ 12, called Tatum over to her. Id. ¶ 21. Officer Davis had a box “at or near her feet.” Id. As
Tatum began to pick up the package, Officer Davis pointed to the monitor of an X-ray machine that
apparently displayed images of the package. See id. ¶ 22. She asked Tatum, “what the hell is in
there” and whether the box contained a lamp with shades. Id. ¶ 22 (internal quotation marks
omitted). Officer Davis then told Officer Matos, another DHS officer assigned to the Parkview Inn,
id. ¶ 13, to adjust the monitor screen, apparently so that Tatum could get a better look. Id. ¶ 23.
Tatum says he was in “disbelief” that Officers Davis and Matos “pried into [his] mail before
it was delivered to [him]” and that Officer Davis would “ask about the contents.” Id. ¶ 24. 1 Tatum
did not answer Officer Davis and instead walked away with the box. Id. ¶¶ 25-26. He also told
Officer Davis that “it’s against the law for [her] to go in [Tatum’s] mail.” Id. ¶ 26. Officer Davis
told Tatum to return to where she was with the package. Id. ¶ 27. She took the package back and
summoned Sergeant Facey, a DHS police sergeant, id. ¶ 11, via a police radio. Id. ¶ 27.
Tatum alleges this disbelief despite the fact that he knew that the Parkview Inn treated all
packages in this manner and alleges that DHS officials would “regularly pry” into packages. Id.
¶ 34 & n.1.
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Sergeant Facey arrived and told Tatum that he could not take his package upstairs unless he
opened it in front of the officers. Id. ¶¶ 28-29. Tatum responded by going upstairs to “get a copy
of the federal law that makes it an offense to obstruct one[’]s mail correspondence.” Id. ¶ 30.
Tatum returned and apparently cited 18 U.S.C. § 1702. 2 See ¶¶ 31, 38. Sergeant Facey replied,
“when you come to this facility you give up certain rights and, we are allowed to do this.” Id. ¶ 31.
Tatum asked Sergeant Facey whether he suspected a threat with regard to his package, but Sergeant
Facey did not reply. Id. ¶¶ 32-33. Tatum then opened the box in front of Sergeant Facey and
revealed that it contained several lamps and shades. Id. ¶¶ 35-36. Sergeant Facey replied, “now
was that hard?” Id. ¶ 36 (internal quotation marks omitted). Tatum then took the package upstairs.
Id. ¶ 39. Two days later, Tatum was given a “notice of infraction for allegedly failing to sign the
attendance roster.” Id. ¶ 57. Tatum says that Sergeant Facey “directed” this citation as retaliation
for Tatum’s objection to the DHS officers’ treatment of his package. Id. ¶¶ 58-59.
Prior to the package incident, Tatum had written a letter to Nikkal Barnes, the program
director of Aguila, Inc., id. ¶¶ 10, 40, which apparently is a private entity that served as the service
provider for the Parkview Inn at the time, see Dkt. 37 at 2 n.4. In the letter, Tatum complained
about DHS officers’ practice of placing shelter residents’ packages through an X-ray machine.
Compl. ¶ 40. Tatum delivered that letter to Barnes by hand on April 11, 2018, and also mailed a
copy to Sergeant Facey. Id. ¶¶ 43-44. He did not receive a response from Barnes. Id. ¶ 45. But
on April 17, 20183, another DHS officer handed Tatum the letter that he mailed Sergeant Facey and
told Tatum that he “could have just asked [that officer] for the rules that allow them to do what
This section of the United States Code is a criminal statute, which prohibits taking a
package “with design to obstruct the correspondence, or to pry into the business or secrets of
another.” 18 U.S.C. § 1702.
The Complaint says this occurred on April 17, 2019. But the Court assumes it occurred
on April 17, 2018 since the Complaint was filed on March 21, 2019.
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[Tatum] was complaining of.” Id. ¶ 46. That officer then gave Tatum a copy of “DHS Procedure
No. 108-04” and a copy of something called the “House Rules.” Id. ¶ 47.
On June 29, 2018, Barnes “attempted to transfer [Tatum] to another facility” against his
will. Id. ¶ 51. Tatum filed a grievance against the transfer, and it never happened. Id. ¶¶ 52-53.
Tatum says that he filed at least seven grievances regarding problems at the Parkview Inn, but none
were handled by Barnes or DHS “in the manner prescribed by DHS Rules.” Id. ¶¶ 54-55.
B. Procedural History
Tatum initiated this action on March 21, 2019 with the filing of the Complaint against the
City of New York, the New York City Human Resources Administration (“HRA”), Sergeant Facey,
Officer Davis, Officer Matos, and Barnes. See id. at ¶¶ 8-13. Because Barnes is not a City
employee, the Court refers to all Defendants except Barnes collectively as the “City Defendants.”
In the Complaint, Tatum brings a single claim pursuant to 42 U.S.C. § 1983, alleging that
Defendants violated his rights protected by the Fourth Amendment. Id. ¶¶ 60-72. Specifically, he
alleges that Sergeant Facey, Officer Davis, and Officer Matos violated his rights when they “pried
into [his] mail package through the x-ray machine and seized [his] package for no lawful reason.”
Id. ¶¶ 63, 65, 67. Sergeant Facey further allegedly violated Tatum’s rights when he forced Tatum
to open the package, and Barnes did so when she “directed that all mail packages” be placed through
the X-ray machine. Id. ¶¶ 64, 68. Tatum also alleges that Officer Davis violated his rights when
“she momentarily detained [him] directing that [he] wait for [Sergeant] Facey” to arrive. Id. ¶ 66.
Finally, he claims that Defendants’ acts were “the direct result of an internal custom or practice that
is not written or formally adopted, but that is a pervasive, longstanding practice that has deprived
[Tatum] of the right to privacy, and to be secured in his person, house, papers and effects, against
unreasonable searches and seizures,” and thus appears to allege the City itself is liable as well. Id.
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This case was initially assigned to the Honorable Edgardo Ramos. On April 26, 2019, Judge
Ramos dismissed HRA as an entity unable to be sued and ordered service on the remaining
Defendants. Dkt. 5. Because Tatum had been granted permission to proceed in forma pauperis, he
was entitled to rely on the Court and the United States Marshals Service to effect service. Id. at 2;
see 28 U.S.C. § 1915(d). On August 2, 2019, Judge Ramos extended the time to answer the
Complaint to thirty-five days after the last individually named officer was served. Dkt. 16. 4
This case was reassigned to the undersigned on October 5, 2020, at which point all
Defendants had not been served. On November 10, 2020, the Court held a conference and ordered
monthly status letters updating the Court on the status of service. On December 1, 2020, counsel
for the City informed the Court that service had been effected on all the City Defendants, but that
Barnes still had not been served. Dkt. 32. Because service had been effected on the City
Defendants, this triggered their time to answer or otherwise respond to the Complaint in accord
with Judge Ramos’s previous order. Dkt. 16; see Dkt. 32 at 2.
On December 14, 2020, the Court granted the City Defendants leave to file a motion to
dismiss. Dkt. 34. On January 4, 2021, the City Defendants filed their motion to dismiss, Dkt. 35,
a declaration and several exhibits in support of their motion, Dkt. 36, and a memorandum of law,
Dkt. 37 (“Motion”). On March 16, 2021, Tatum filed an affidavit in opposition to the City
Defendants’ Motion that was dated January 25, 2021. Dkt. 49. The City Defendants filed a reply
brief on March 23, 2021. Dkt. 53. Barnes has not moved to dismiss the claims against her. 5
On June 18, 2020, as part of this action, Tatum filed an emergency motion for a temporary
restraining order to prevent his transfer from one shelter to another. Dkt. 22. At a conference on
June 23, 2020, Judge Ramos denied this request, and Tatum sought no further relief.
Barnes appeared in this case and filed an answer on February 19, 2021. Dkt. 47.
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II. 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 is plausible “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. A complaint’s
“[f]actual allegations must be enough to raise a right to relief above the speculative level.”
Twombly, 550 U.S. at 555. In other words, the plaintiff must allege facts that “nudge [his] claim
across the line from conceivable to plausible.” Id. at 570. Although the Court must “accept as
true the factual allegations in the complaint and draw all inferences in the plaintiff’s favor,” Biro,
807 F.3d at 544, it need not “accept as true legal conclusions couched as factual allegations,”
Lafaro v. N.Y. Cardiothoracic Grp., PLLC, 570 F.3d 471, 475-76 (2d Cir. 2009).
The Court must construe pro se submissions “liberally” and interpret them “to raise the
strongest arguments that they suggest.” Meadows v. United Servs., Inc., 963 F.3d 240, 243 (2d Cir.
2020) (per curiam) (quoting Triestman v. Fed. Bureau of Prisons, 470 F.3d 471, 474 (2d Cir. 2006)).
But a pro se complaint still “must state a plausible claim for relief.” Id. (quoting Hogan v. Fischer,
738 F.3d 509, 515 (2d Cir. 2013)). “Even in a pro se case . . . threadbare recitals of the elements
of a cause of action, supported by mere conclusory statements, do not suffice.” Chavis v. Chappius,
618 F.3d 162, 170 (2d Cir. 2010) (quoting Harris v. Mills, 572 F.3d 66, 72 (2d Cir. 2009)).
Liberally construing Tatum’s Complaint, he appears to allege the following: (1) Sergeant
Facey, Officer Davis, and Officer Matos violated Tatum’s Fourth Amendment rights when they
subjected his package to an X-ray; (2) Officer Davis violated Tatum’s Fourth Amendment rights
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when she “momentarily” directed Tatum to wait for Sergeant Facey; (3) Sergeant Facey violated
Tatum’s Fourth Amendment rights when he required Tatum to open his package before bringing it
upstairs; (4) Sergeant Facey violated Tatum’s First Amendment rights 6 when he allegedly retaliated
against Tatum; and (5) the City is liable pursuant to Monell v. Department of Social Services of the
City of New York, 436 U.S. 658 (1978), for devising an custom or practice that violated Tatum’s
For the reasons stated below, the Court concludes that Sergeant Facey, Officer Davis, and
Officer Matos are entitled to qualified immunity with regard to Tatum’s Fourth Amendment claims,
that Tatum has failed to plead facts plausibly alleging a First Amendment retaliation claim, and that
Tatum has failed to plead facts plausibly alleging Monell liability against the City. 7
A. Fourth Amendment Claims
“Qualified immunity provides government officials ‘immunity from suit rather than a mere
defense to liability.’” Looney v. Black, 702 F.3d 701, 705 (2d Cir. 2012) (quoting Pearson v.
Callahan, 555. U.S. 223, 231 (2009)). “[T]he ‘driving force’ behind creation of the qualified
immunity doctrine [is] a desire to ensure that ‘insubstantial claims’ against government officials
[will] be resolved prior to discovery.’” Id. at 706 (alterations in original) (quoting Pearson, 555
Tatum does not plead a cause of action pursuant to the First Amendment. But the City
Defendants treat these allegations as arising under that amendment, and liberally construing the
Complaint, the Court treats it as such since the alleged retaliatory conduct would not seem to fall
within the bounds of the Fourth Amendment.
In his Opposition, Tatum failed to respond to the City Defendant’s arguments that
(1) Sergeant Facey, Officer Davis, and Officer Matos are entitled to qualified immunity or (2) that
Tatum’s purported First Amendment retaliation claim should be dismissed. A court “may, and
generally will, deem a claim abandoned when a plaintiff fails to respond to a defendant’s
arguments that the claim should be dismissed.” Lipton v. Cnty. of Orange, 315 F. Supp. 2d 434,
446 (S.D.N.Y. 2004). However, in light of the fact that Tatum is proceeding pro se, the Court
does not deem any of Tatum’s claims abandoned due to his failure to respond to these arguments.
See Zoulas v. N.Y.C. Dep’t of Educ., 400 F. Supp. 3d 25, 61 n.9 (S.D.N.Y. 2019).
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U.S. at 231).
The two-pronged analysis for qualified immunity requires a court to determine (1) “whether
plaintiff has shown facts making out [a] violation of a constitutional right,” and (2) “if so, whether
that right was clearly established.” Mudge v. Zugalla, 939 F.3d 72, 79 (2d Cir. 2019) (alteration in
original) (quoting Gonzalez v. City of Schenectady, 728 F.3d 149, 154 (2d Cir. 2013)); accord
Pearson, 555 U.S. at 234, 236. Even if the right was clearly established, the court also must assess
“whether it was objectively reasonable for the officer to believe the conduct at issue was lawful.”
Mudge, 939 F.3d at 79 (quoting Gonzalez, 728 F.3d at 154). A court is “permitted to exercise [its]
sound discretion in deciding which of the two prongs of the qualified immunity analysis should be
addressed first in light of the circumstances in the particular case at hand.” Id. (quoting Pearson,
555 U.S. at 236).
Under the second prong, “[a] clearly established right is one that is ‘sufficiently clear that
every reasonable official would have understood that what he is doing violates that right.’”
Mullenix v. Luna, 577 U.S. 7, 11 (2015) (per curiam) (quoting Reichle v. Howards, 566 U.S. 658,
664 (2012)). In other words, “[t]he precedent must be clear enough that every reasonable official
would interpret it to establish the particular rule the plaintiff seeks to apply.” District of Columbia
v. Wesby, 138 S. Ct. 577, 590 (2018). “Put simply, qualified immunity protects ‘all but the plainly
incompetent or those who knowingly violate the law.’” Mullenix, 577 U.S. at 12 (quoting Malley
v. Briggs, 475 U.S. 335, 341 (1986)).
Moreover, the Supreme Court has “repeatedly told courts . . . not to define clearly
established law at a high level of generality.” Ashcroft v. al-Kidd, 563 U.S. 731, 742 (2011). While
the Supreme Court does not “require a case directly on point . . . existing precedent must have
placed the statutory or constitutional question beyond debate.” Mullenix, 577 U.S. at 12 (quoting
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al-Kidd, 563 U.S. at 741). “Such specificity is especially important in the Fourth Amendment
context.” Id. at 12.
The Court readily dispels of Tatum’s Fourth Amendment claims against Sergeant Facey,
Officer Davis, and Officer Matos under the second prong of the qualified immunity analysis
because their conduct did not violate a “clearly established right.” Id. at 11. In his Opposition,
Tatum points to no controlling authority clearly establishing the rights at issue here. This alone
seems to suggest that qualified immunity applies. See Sampedro v. Schriro, 377 F. Supp. 3d 133,
141 (D. Conn. 2019) (explaining that because the plaintiff “d[id] not cite any apposite authority in
support of” the proposition that an officer violated his rights, “[i]t necessarily follow[ed] . . . that
[the officer] could not have violated a ‘clearly established’ constitutional right”). Even so, the Court
is not aware of any controlling authority that suggests that the DHS officers here violated a clearly
established right. For example, the Court is aware of no authority from the Supreme Court (or any
other court for that matter) that has held that placing a package through an X-ray machine violates
the Fourth Amendment, particularly when the practice is used as an apparent security measure at a
shelter. Nor is the Court aware of any authority holding that an officer who tells an individual to
wait for a supervisor to arrive seizes that individual for purposes of the Fourth Amendment. Finally,
the Court knows of no case that says that requiring a shelter resident to open a package in front of
officers before bringing it to the resident’s room violates the Constitution. In short, none of the
named officers acted in a way that “every reasonable official would have understood” was a
violation of the Fourth Amendment. Mullenix, 577 U.S. at 11 (internal quotation marks omitted).
Because Sergeant Facey, Officer Davis, and Officer Matos did not violate a clearly
established right with regard to Tatum’s Fourth Amendment claims, they are entitled to qualified
immunity. The Court thus grants the City Defendants’ motion to dismiss with regard to Tatum’s
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Fourth Amendment claims against those Defendants.
B. First Amendment Claim
The Court construes Tatum’s retaliation claim under the First Amendment. “‘[A]s a general
matter the First Amendment prohibits government officials from subjecting an individual to
retaliatory actions’ for engaging in protected speech.” Nieves v. Bartlett, 139 S. Ct. 1715, 1722
(2019) (quoting Hartman v. Moore, 547 U.S. 250, 256 (2006)). “If an official takes adverse action
against someone based on that forbidden motive, and ‘non-retaliatory grounds are in fact
insufficient to provoke the adverse consequences,’ the injured person may generally seek relief by
bringing a First Amendment claim.” Id. (quoting Hartman, 547 U.S. at 256).
“Generally, in order to state a claim for First Amendment retaliation, a private citizen
normally must allege that: ‘(1) [the plaintiff] has an interest protected by the First Amendment;
(2) [the] defendants’ actions were motivated by or substantially caused by his exercise of that right;
and (3) [the] defendants’ actions effectively chilled the exercise of his First Amendment right.’”
Schubert v. City of Rye, 775 F. Supp. 2d 689, 710 (S.D.N.Y. 2011) (second and third alternations
in original) (quoting Curley v. Vill. of Suffern, 268 F.3d 65, 73 (2d Cir. 2001)). Even assuming
Tatum’s objection to the shelter’s package policy was protected by the First Amendment, he has
not pleaded facts that sufficiently demonstrate Sergeant Facey’s actions were “motivated by or
substantially caused by,” id. (internal quotation marks omitted), Tatum’s exercise of that right or
that Tatum’s First Amendment rights have been chilled as a result.
Tatum alleges only that two days after the package incident, he “was cited with a notice of
infraction for allegedly failing to sign the attendance roster” and that he “believes that this was in
retaliation to his objection of DHS Police searching his mail package.” Compl. ¶¶ 57-58. Such
threadbare allegations do not “nudge” Tatum’s claim “across the line from conceivable to
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plausible.” Twombly, 550 U.S. at 570. Tatum pleads no facts to suggest that the “notice of
infraction” he received had anything to do with the incident regarding his mail. A conclusory
statement that Tatum himself “believes” it was in retaliation, Compl. ¶ 58, without more, is simply
not enough to survive a motion to dismiss. Tatum’s further allegation that Sergeant Facey “directed
the infraction,” id. ¶ 59, does nothing to advance his claim. A sergeant like Facey directing such
action in general does not necessarily mean it had a causal connection to Tatum’s exercise of
allegedly protected speech. And none of Tatum’s allegations suggest that his First Amendment
rights were chilled. See Schubert, 775 F. Supp. 2d at 711 (explaining that a plaintiff must allege
facts that show the alleged “retaliatory conduct either silenced [him], or had some ‘actual nonspeculative chilling effect on [his] speech’” (quoting Williams v. Town of Greenburgh, 535 F.3d
71, 78 (2d Cir. 2008))).
Because the Complaint’s factual allegations do not “raise a right to relief above the
speculative level” with regard to this claim, Twombly, 550 U.S. at 555, Tatum’s allegations are not
plausible. The Court thus grants the City Defendants’ motion to dismiss with regard to Tatum’s
First Amendment claim.
C. Monell Liability
“[A] municipality cannot be held liable solely because it employs a tortfeasor—or, in other
words, a municipality cannot be held liable under § 1983 on a respondeat superior theory.” Monell,
436 U.S. at 691. “Instead, it 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.” Id. at 694; accord
Askins v. Doe No. 1, 727 F.3d 248, 253 (2d Cir. 2013) (“Liability under section 1983 is imposed on
the municipality when it has promulgated a custom or policy that violates federal law and, pursuant
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to that policy, a municipal actor has tortiously injured the plaintiff.”). A plaintiff may plead facts
of a policy or custom by alleging one of the following:
(1) a formal policy officially endorsed by the municipality; (2) actions taken by
government officials responsible for establishing the municipal policies that caused
the particular deprivation in question; (3) a practice so consistent and widespread
that, although not expressly authorized, constitutes a custom or usage of which a
supervising policy-maker must have been aware; or (4) a failure by policymakers
to provide adequate training or supervision to subordinates to such an extent that it
amounts to deliberate indifference to the rights of those who come into contact with
the municipal employees.
Jones v. Westchester Cnty., 182 F. Supp. 3d 134, 158 (S.D.N.Y. 2016) (quoting Brandon v. City of
New York, 705 F. Supp. 2d 261, 276-77 (S.D.N.Y. 2010)).
Here, the only alleged facts in the Complaint regarding possible Monell liability are that
Defendants acted as a “direct result of an internal custom or practice that is not written or formally
adopted, but that is a pervasive, longstanding practice.” Compl. ¶ 70. Tatum thus seems to allege
a practice that would fall into the third category cited in Jones. 182 F. Supp. 3d at 158 (explaining
a plaintiff may plead facts of a policy or custom by alleging “a practice so consistent and widespread
that, although not expressly authorized, constitutes a custom or usage of which a supervising policymaker must have been aware”). But his allegations cannot survive the motion to dismiss because
Tatum does not even say what the alleged “internal custom or practice” was. Compl. ¶ 70.
Liberally construing the Complaint, Tatum might mean that DHS has a policy to X-ray all
packages or require shelter residents to open packages upon request. See, e.g., id. ¶ 34 (explaining
that “they treat all packages from the mail carrier” in the manner that they treated his package). For
example, in his Opposition, Tatum contends that the City “conditioned and sanctioned the practices
of shelter providers and DHS police interfering and intercepting [Tatum’s] mail and parcel” and
that this was “eviden[ced] by the fact that the City, through its Office of the Ombudsman (DHS)
refused to process [Tatum’s] grievances pertaining to his right to privacy.” Opposition at 4. This
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appears to be a gripe with the City’s failure to respond to a supposed grievance that Tatum filed,
rather than an allegation that an unconstitutional policy or custom exists. Further, whether such a
policy or custom exists is seemingly undercut by another portion of Tatum’s Opposition in which
he explains that he now lives at a different shelter and that location does not have a “scanner or
magnometer” for packages. Opposition at 5. Still, he says that at the new shelter, private security
guards direct residents to open packages in their presence and “let them go through [the packages].”
Id. All this to say, the Court cannot glean from the face of the Complaint the City’s “policy or
custom” that Tatum alleges violated his constitutional rights. And even assuming Tatum did plead
facts alleging such a policy or custom, he fails to allege how it violated those rights.
The Court thus dismisses Tatum’s claim brought under a theory of Monell liability as well. 8
D. Leave to Amend
Tatum requests leave to amend if the Court dismisses the Complaint. Opposition at 5.
“Generally, leave to amend should be freely given, and a pro se litigant in particular should be
afforded every reasonable opportunity to demonstrate that [the litigant] has a valid claim.” Nielsen
v. Rabin, 746 F.3d 58, 62 (2d Cir. 2014) (quoting Matima v. Celli, 228 F.3d 68, 81 (2d Cir. 2000)).
“[A] pro se complaint should not [be] dismiss[ed] without [the Court’s] granting leave to amend at
least once when a liberal reading of the complaint gives any indication that a valid claim might be
stated.” Grullon v. City of New Haven, 720 F.3d 133, 139 (2d Cir. 2013) (alterations in original)
(internal quotation marks omitted). In accordance with this case law, and particularly because
The City Defendants argue that, to the extent the Court reads the Complaint as pleading
claims pursuant to state law, they are procedurally barred. Motion at 17-18. The Complaint does
not mention any causes of action besides 42 U.S.C. § 1983, and the Opposition also does not say
anything about purported state law claims, even after the City raised the possibility that Tatum
might be proceeding under those causes of action too. The Court thus does not construe the
Complaint as raising state law claims and does not address the City Defendants’ arguments for
why such claims should be dismissed.
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Tatum’s First Amendment claim and theory of Monell liability fail as insufficiently pleaded, the
Court will grant Tatum leave to file an amended complaint.
For these reasons, the City Defendants’ motion to dismiss the Complaint is granted without
prejudice to filing an amended complaint. The Clerk of Court is respectfully directed to terminate
the motion pending at Docket Number 35.
If Tatum chooses to file an amended complaint, he must do so by October 8, 2021. Because
any amended complaint will completely replace, not supplement, the Complaint, any facts or claims
that Tatum wishes to maintain must be included in the amended complaint. If Tatum fails to file
an amended complaint by October 8, 2021, and he cannot show good cause to excuse such failure,
the Court will direct the Clerk of Court to terminate the City, Sergeant Facey, Officer Davis, and
Officer Matos as Defendants in this action. If Tatum fails to file an amended complaint by October
8, 2021, the Complaint will remain the operative pleading against Barnes, who has not moved to
dismiss the Complaint, and the Court will issue an order directing Tatum and Barnes to submit a
proposed case management plan and scheduling order.
Although Tatum consented to receive electronic service in this action, see Dkt. 20, the Clerk
of Court is respectfully directed to mail a paper copy of this Opinion and Order to Tatum.
Dated: September 8, 2021
New York, New York
JOHN P. CRONAN
United States District Judge
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