Aponte v. City of New York et al
Filing
72
OPINION & ORDER re: 59 MOTION to Dismiss and Local Rule 56.2 Statement, filed by City of New York. Defendants' Motion To Dismiss is granted. However, because this result was dictated in part by deficiencies in Plaintiff's S econd Amended Complaint, Plaintiff will be afforded one last opportunity to amend it within 30 days of the date of this Opinion. The Clerk is respectfully directed to terminate the pending Motion. (See Dkt. No. 59.) SO ORDERED. (Signed by Judge Kenneth M. Karas on 9/26/16) (yv)
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
FELIX APONTE,
Plaintiff,
-v-
Case No. 14-CV-3989 (KMK)
OPINION & ORDER
CITY OF NEW YORK, ADA PEREZ, BRIAN
FISCHER, ANTHONY J. ANNUCCI, LUCIEN J.
LECLAIRE, GLENN S. GOORD, ANDREA W.
EVANS, MARK MANTEI, ROBERT J. DENNISON,
ANTHONY G. ELLIS, and GEORGE B.
ALEXANDER,
Defendants.
Appearances:
Felix Aponte
Dannemora, New York
Pro Se Plaintiff
Katherine A. Byrns, Esq.
New York City Law Department
New York, NY
Counsel for Defendant City of New York1
KENNETH M. KARAS, District Judge:
Plaintiff Felix Aponte (“Plaintiff”), proceeding pro se, is incarcerated at Clinton
Correctional Facility and brings this action under 42 U.S.C. § 1983 against Defendants City of
New York (“the City”), Brian Fischer, as Commissioner of the New York State Department of
Correctional Services (“DOCS”), Anthony J. Annucci, as Deputy Commissioner and Counselor
1
The Court notes that no attorneys have yet appeared for Defendants Brian Fischer,
Anthony J. Annucci, Lucien J. Leclaire, or Glenn S. Goord. Also, Defendants Andrea W. Evans,
Mark Mantei, Robert J. Dennison, Anthony G. Ellis, and George B. Alexander have not been
served.
for DOCS, Lucien J. Leclaire, Jr., as former acting Commissioner of DOCS, Glenn S. Goord, as
former Commissioner of DOCS, Andrea W. Evans, as Chair and Chief Executive Officer of the
New York State Division of Parole (“DOP”), Mark Mantei, as Executive Director of DOP,
Robert J. Dennison, as former Chair of DOP, Anthony G. Ellis II, as former Executive Director
of DOP, and George B. Alexander, as former Chair and Chief Executive Officer of DOP
(collectively, “Defendants”). Plaintiff alleges that the City is liable for the actions of its
employees and that the individual defendants are liable for the actions of their subordinates for
violating his rights under the Fifth, Sixth, Eighth, and Fourteenth Amendments. The City moves
to dismiss the Second Amended Complaint under Federal Rule of Civil Procedure 12(b)(6) on
the grounds that Plaintiff fails to state a claim against the City for municipal liability under either
federal or state law; Plaintiff did not provide sufficient notice of claim; and Plaintiff neglected to
commence his claim before the exhaustion of the relevant statute of limitations. (See City’s
Mem. of Law in Supp. of Mot. To Dismiss (“City’s Mem.”) 2 (Dkt. No. 61).) For the following
reasons, the City’s Motion To Dismiss is granted, although Plaintiff is granted leave to amend
his complaint.
I. Background
A. Factual Background
The following facts are collected from Plaintiff’s Second Amended Complaint. Plaintiff
pled guilty to attempted robbery in the first degree on April 25, 2000 and was subsequently
sentenced to eight years’ imprisonment on May 5, 2000. (Second Am. Compl. ¶¶ 10–11 (Dkt.
No. 51).) Plaintiff alleges that “[n]o mention was made of post-release supervision at [the] plea
or sentence, nor was any such term recorded on the sentencing commitment order.” (Id. ¶ 11.)
Plaintiff completed his term of imprisonment on May 2, 2008. (Id. ¶ 13.)
2
In May 2008, Plaintiff was moved to Rikers Island for violating the terms of his
supervised release package, then later moved again to: Livingston Correctional Facility,
Edgecombe Residential Treatment Center, Gouverneur Correctional Facility, Ulster Correctional
Facility, Queensboro Correctional Facility, Collins Correctional Facility, Five Points
Correctional Facility, Upstate Correction Facility, and, finally, Clinton Correctional Facility. (Id.
¶ 26; Pl’s Pro Se Mem. (Dkt. No. 58).) Plaintiff alleges that “[D]efendants intended to and did
confine [P]laintiff,” (Second Am. Compl. ¶ 20), and claims that he was still incarcerated when he
drafted the Second Amended Complaint in November 2014—“[s]ix years and four months” after
he had “completed his [original] sentence,” (id. ¶ 25).
On November 20, 2012, the New York Appellate Division reversed an order issued in
May 2010 denying Plaintiff’s motion to set aside a resentence of “a term of eight year[s] with
three years Post[-]Release Supervision,” and reinstated “the original sentence of eight years
without Post[-]Release Supervision.” (Id. ¶ 24.) Plaintiff received the letter on September 5,
2013, “while incarcerated at Upstate Correctional Facility.” (Id. ¶ 25, Ex. A, at unnumbered
15.2)
Plaintiff asserts that “[t]his is a case of false imprisonment, illegal detainment, illegal
negotiation of [P]ost[-R]elease [S]upervision, and violation of [P]laintiff[’]s United States
[c]onstitutional [r]ights . . . .” (Id. ¶ 19.) Plaintiff claims that Defendants are responsible “for
violation of Plaintiff[’s] rights under the . . . Fifth Amendment [double jeopardy], Six[th]
Amendment [Civil Rights, deprivation of rights], Eighth Amendment [cruel and unusual
punishment], Fourteenth Amendment [procedural due process], [and] New York Constitution
2
Because the pages of the exhibits appended to the Second Amended Complaint are not
consistently numbered, the Court cites to the ECF-generated page numbers in the upper righthand corner.
3
Art[.] I, §[ ]6 . . . .” (Id. ¶¶ 28–30 (descriptive alterations in original).) As a result, he claims to
have experienced “pain, suffering, [and] physical and emotional distress,” (id.), and alleges that
he “will continue to be irreparably injured by the conduct of . . . [D]efendants unless this court
grants the compensatory damages relief which [P]laintiff seeks,” (id. ¶ 31).
Based on the foregoing allegations, Plaintiff requests relief in the form of “a declaration
that the acts and omissions described herein violated [P]laintiff’s rights under the Constitution
and laws of the United States and the State of New York”; “compensatory damages in the
amount of $3,000,000.00 plus interest, against each [D]efendant, jointly and severally”;
“[p]unitive damages in the amount of $3,000,000.00 plus interest against each [D]efendant”; “a
jury trial on all issues triable by jury”; and “recovery of the costs in this suit”; along with “[a]ny
additional relief this court deems just, proper and equitable.” (Id. ¶¶ 32–37.)
B. Procedural Background
Plaintiff filed his original complaint along with a request to proceed in forma pauperis on
May 29, 2014. (See Dkt. Nos. 1–2.) Then-Chief Judge Preska granted Plaintiff’s request to
proceed in forma pauperis on June 25, 2014. (See Dkt. No. 3.) Plaintiff requested and was
granted the opportunity to amend his Complaint on October 29, 2014, (see Dkt. No. 7), and filed
the Amended Complaint on December 1, 2014, (see Dkt. No. 10). On March 3, 2015, the City
filed its Motion To Dismiss the Amended Complaint and accompanying papers. (See Dkt. Nos.
23–25.) By letter dated March 8, 2015, Plaintiff requested an additional 120 days to submit his
Opposition; however, the Court granted Plaintiff a somewhat shorter extension to May 2, 2015.
(See Dkt. No. 28.) By letter dated April 30, 2015, Plaintiff informed the Court that he was “close
to mailing [his] opposition,” but expressed his “hope that [the Court] [would] grant [Plaintiff] the
time [he] need[ed] to file a second amend[ed] complaint.” (See Pl.’s Letter to Court (May 8,
4
2015) 1 (Dkt. No. 43).) Plaintiff also filed an Opposition to the Motion To Dismiss on May 14,
2015, (see Dkt. No. 46), and the City replied in support of its Motion To Dismiss on May 27,
2015, (see Dkt. No. 48). On June 18, 2015, the Court denied the Motion To Dismiss on the
ground that Plaintiff had indicated that he wished to file a Second Amended Complaint. (See
Dkt. No. 49.)
Plaintiff filed his Second Amended Complaint on August 10, 2015. (See Dkt. No. 51.)
By memo endorsement on August 31, 2015, the Court granted the City leave to move for
dismissal by September 24, 2015, and instructed Plaintiff to submit any opposition by October
26, 2015. (See Dkt. No. 56.) The City filed its Motion To Dismiss the Second Amended
Complaint and accompanying papers on September 23, 2015, (see Dkt. Nos. 59–61); Plaintiff
never responded. By letter dated October 29, 2015, the City requested that its motion be deemed
fully submitted. (See Dkt. No. 62.)
II. Discussion
A. Standard of Review
The City moves to dismiss Plaintiff’s Second Amended Complaint on the grounds that
Plaintiff fails to state a claim for municipal liability under either federal or state law and that
Plaintiff failed to adhere to procedural requirements under New York General Municipal Law.
(See City’s Mem. 5, 7–9.)
“While a complaint attacked by a Rule 12(b)(6) motion to dismiss does not need detailed
factual allegations, a plaintiff’s obligation to provide the grounds of his entitlement to relief
requires more than labels and conclusions, and a formulaic recitation of the elements of a cause
of action will not do.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007) (citations, internal
quotation marks, and alterations omitted). Indeed, Rule 8 of the Federal Rules of Civil
5
Procedure “demands more than an unadorned, the-defendant-unlawfully-harmed-me accusation.”
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). “Nor does a complaint suffice if it tenders naked
assertions devoid of further factual enhancement.” Id. (internal quotation marks and alterations
omitted). Instead, 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. “[O]nce a claim has been stated
adequately, it may be supported by showing any set of facts consistent with the allegations in the
complaint,” id. at 563, and a plaintiff must allege “only enough facts to state a claim to relief that
is plausible on its face,” id. at 570; however, if a plaintiff has not “nudged [his or her] claims
across the line from conceivable to plausible, the[] complaint must be dismissed,” id.; see also
Iqbal, 556 U.S. at 679 (“Determining whether a complaint states a plausible claim for relief will
. . . be a context-specific task that requires the reviewing court to draw on its judicial experience
and common sense. But where the well-pleaded facts do not permit the court to infer more than
the mere possibility of misconduct, the complaint has alleged—but it has not ‘show[n]’—‘that
the pleader is entitled to relief.’” (citation omitted) (second alteration in original) (quoting Fed.
R. Civ. P. 8(a)(2))); id. at 678–79 (“Rule 8 marks a notable and generous departure from the
hyper-technical, code-pleading regime of a prior era, but it does not unlock the doors of
discovery for a plaintiff armed with nothing more than conclusions.”).
“[W]hen ruling on a defendant’s motion to dismiss, a judge must accept as true all of the
factual allegations contained in the complaint.” Erickson v. Pardus, 551 U.S. 89, 94 (2007); see
also Nielsen v. Rabin, 746 F.3d 58, 62 (2d Cir. 2014) (“In addressing the sufficiency of a
complaint we accept as true all factual allegations . . . .” (internal quotation marks omitted));
Aegis Ins. Servs., Inc. v. 7 World Trade Co., 737 F.3d 166, 176 (2d Cir. 2013) (“In reviewing a
dismissal pursuant to Rule 12(b)(6), we . . . accept all factual allegations in the complaint as
6
true . . . .” (internal quotation marks and alterations omitted)). Further, “[f]or the purpose of
resolving [a] motion to dismiss, the Court . . . draw[s] all reasonable inferences in favor of the
plaintiff.” Daniel v. T & M Prot. Res., Inc., 992 F. Supp. 2d 302, 304 n.1 (S.D.N.Y. 2014)
(citing Koch v. Christie’s Int’l PLC, 699 F.3d 141, 145 (2d Cir. 2012)). Additionally, “[i]n
ruling on a 12(b)(6) motion, . . . a court may consider the complaint[,] . . . any written instrument
attached to the complaint as an exhibit[,] or any statements or documents incorporated in it by
reference,” as well as “matters of which judicial notice may be taken, and documents either in
[the] plaintiffs’ possession or of which [the] plaintiffs had knowledge and relied on in bringing
suit.” Kalyanaram v. Am. Ass’n of Univ. Professors at N.Y. Inst. of Tech., Inc., 742 F.3d 42, 44
n.1 (2d Cir. 2014) (citation, internal quotation marks, and some alterations omitted); see also
Leonard F. v. Isr. Disc. Bank of N.Y., 199 F.3d 99, 107 (2d Cir. 1999) (“In adjudicating a Rule
12(b)(6) motion, a district court must confine its consideration to facts stated on the face of the
complaint, in documents appended to the complaint or incorporated in the complaint by
reference, and to matters of which judicial notice may be taken.” (internal quotation marks
omitted)); Hendrix v. City of New York, No. 12-CV-5011, 2013 WL 6835168, at *2 (E.D.N.Y.
Dec. 20, 2013) (same).
Lastly, because Plaintiff is proceeding pro se, the Court must construe his pleadings
liberally and “interpret them to raise the strongest arguments that they suggest.” Maisonet v.
Metro. Hosp. & Health Hosp. Corp., 640 F. Supp. 2d 345, 347 (S.D.N.Y. 2009) (internal
quotation marks omitted); see also Triestman v. Fed. Bureau of Prisons, 470 F.3d 471, 474–75
(2d Cir. 2006). However, the liberal treatment afforded to pro se litigants does not excuse a pro
se party “from compliance with relevant rules of procedural and substantive law.” Maisonet, 640
F. Supp. 2d at 348 (internal quotation marks omitted).
7
B. Analysis
1. Municipal Liability Under Federal Law
The City argues that because respondeat superior is not available to establish vicarious
liability under 42 U.S.C. § 1983, Plaintiff’s only option to obtain relief from the City under
§ 1983 is to “show that [the City maintained] a municipal policy or custom [that] caused the
deprivation of his constitutional rights”—and contends that Plaintiff has failed to do so. (City’s
Mem. 5–6 (citing Monell v. Dep’t of Social Servs., 436 U.S. 658, 690–91, 694–95 (1978)).)
“Congress did not intend municipalities to be held liable [under § 1983] unless action
pursuant to official municipal policy of some nature caused a constitutional tort.” Monell, 436
U.S. at 691. Thus, “to prevail on a claim against a municipality under [§] 1983 based on acts of
a public official, a plaintiff is required to prove: (1) actions taken under color of law; (2)
deprivation of a constitutional or statutory right; (3) causation; (4) damages; and (5) that an
official policy of the municipality caused the constitutional injury.” Roe v. City of Waterbury,
542 F.3d 31, 36 (2d Cir. 2008); cf. Salvatierra v. Connolly, No. 09-CV-3722, 2010 WL 5480756,
at *10 (S.D.N.Y. Sept. 1, 2010) (dismissing claim against municipal agencies where the plaintiff
did not allege that any policy or custom caused the deprivation of his rights), adopted by 2011
WL 9398 (S.D.N.Y. Jan. 3, 2011); Arnold v. Westchester County, No. 09-CV-3727, 2010 WL
3397375, at *9 (S.D.N.Y. Apr. 16, 2010) (dismissing claim against county because the complaint
did “not allege the existence of an unconstitutional custom or policy”), adopted sub nom. Arnold
v. Westchester Cty. Dep’t of Corr., 2010 WL 3397372 (S.D.N.Y. Aug. 15, 2010). The fifth
element reflects the notion that “a municipality may not be held liable under § 1983 solely
because it employs a tortfeasor.” Bd. of Cty. Comm’rs v. Brown, 520 U.S. 397, 403 (1997); see
also Sherrard v. City of New York, No. 15-CV-7318, 2016 WL 1574129, at *7 (S.D.N.Y. Apr.
8
15, 2016) (“Municipalities may only be held liable when the municipality itself deprives an
individual of a constitutional right.” (alterations and internal quotation marks omitted)). In other
words, a municipality may not be liable under § 1983 “by application of the doctrine of
respondeat superior.” Pembaur v. City of Cincinnati, 475 U.S. 469, 478 (1986) (italics omitted);
see also Vassallo v. Lando, 591 F. Supp. 2d 172, 201 (E.D.N.Y. 2008) (noting that “a municipal
entity may only be held liable where the entity itself commits a wrong” (italics omitted)).
Instead, there must be a “direct causal link between a municipal policy or custom and the alleged
constitutional deprivation.” City of Canton v. Harris, 489 U.S. 378, 385 (1989); see also City of
St. Louis v. Praprotnik, 485 U.S. 112, 122 (1988) (plurality opinion) (“[G]overnmental bodies
can act only through natural persons, . . . [and] governments should be held responsible when,
and only when, their official policies cause their employees to violate another person’s
constitutional rights.”).
A plaintiff may satisfy the “policy or custom” requirement by alleging (i) “a formal
policy officially endorsed by the municipality,” (ii) “actions taken by government officials
responsible for establishing the municipal policies that caused the particular deprivation in
question,” (iii) “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
(iv) “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.” Murchison-Allman v. City of New York,
No. 14-CV-2160, 2016 WL 1322445, at *5 (S.D.N.Y. Mar. 31, 2016) (citation omitted). Under
the third method, “an act performed pursuant to a ‘custom’ that has not been formally approved
by an appropriate decisionmaker may fairly subject a municipality to liability on the theory that
9
the relevant practice is so widespread as to have the force of law.” Brown, 520 U.S. at 404; see
also Kern v. City of Rochester, 93 F.3d 38, 44 (2d Cir. 1996) (noting that a municipality’s
custom “need not be memorialized in a specific rule or regulation”). “Therefore, a plaintiff may
establish municipal liability by demonstrating that a policy maker indirectly caused the
misconduct of a subordinate municipal employee by acquiescing in a longstanding practice or
custom which may fairly be said to represent official policy.” Donohue v. Manetti, No. 15-CV636, 2016 WL 740439, at *5 (E.D.N.Y. Feb. 24, 2016) (internal quotation marks omitted). To
prevail on this theory of municipal liability, however, a plaintiff must prove that the custom at
issue is permanent and well-settled. See Praprotnik, 485 U.S. at 127 (noting that “the [Supreme]
Court has long recognized that a plaintiff may be able to prove the existence of a widespread
practice that, although not authorized by written law or express municipal policy, is ‘so
permanent and well settled as to constitute a “custom or usage” with the force of law’” (quoting
Adickes v. S.H. Kress & Co., 398 U.S. 144, 167–68 (1970))).
“[G]enerally, a custom or policy cannot be shown by pointing to a single instance of
unconstitutional conduct by a mere employee of the municipality.” Hixon v. City of New York,
No. 14-CV-2504, 2015 WL 4470078, at *4 (S.D.N.Y. July 13, 2015) (internal quotation marks
omitted); see also City of Oklahoma v. Tuttle, 471 U.S. 808, 823–24 (1985) (plurality opinion)
(“Proof of a single incident of unconstitutional activity is not sufficient to impose liability under
Monell, unless proof of the incident includes proof it was caused by an existing, unconstitutional
municipal policy, which policy can be attributed to a municipal policymaker.”); Brogdon v. City
of New Rochelle, 200 F. Supp. 2d 411, 427 (S.D.N.Y. 2002) (“A single incident by itself is
generally insufficient to establish the affirmative link between the municipal policy or custom
and the alleged unconstitutional violation.”). In the end, “a plaintiff must demonstrate that,
10
through its deliberate conduct, the municipality was the ‘moving force’ behind the alleged
injury.” Roe, 542 F.3d at 37 (quoting Brown, 520 U.S. at 404); see also Tuttle, 471 U.S. at 824
n.8 (“The fact that a municipal ‘policy’ might lead to ‘police misconduct’ is hardly sufficient to
satisfy Monell’s requirement that the particular policy be the ‘moving force’ behind a
constitutional violation. There must at least be an affirmative link between [, for example,] the
training inadequacies alleged and the particular constitutional violation at issue.”); Batista v.
Rodriguez, 702 F.2d 393, 397 (2d Cir. 1983) (“Absent a showing of a causal link between an
official policy or custom and the plaintiffs’ injury, Monell prohibits a finding of liability against
the City.”); Wiltshire v. Williams, No. 10-CV-6947, 2012 WL 899383, at *10 (S.D.N.Y. Mar. 16,
2012) (noting that after demonstrating the existence of a municipal policy or custom, “a plaintiff
must establish a causal connection—an affirmative link—between the policy and the deprivation
of his constitutional rights” (internal quotation marks omitted)).
At this stage, Plaintiff need not prove these elements, but he must still plead them
sufficiently to make out a plausible claim for relief. Although there is no heightened pleading
requirement for complaints alleging municipal liability under § 1983, Leatherman v. Tarrant
Cty. Narcotics Intelligence & Coordination Unit, 507 U.S. 163, 168 (1993), a complaint does not
“suffice if it tenders naked assertion[s] devoid of further factual enhancement,” Iqbal, 556 U.S.
at 678 (alteration in original) (internal quotation marks omitted). Thus, to survive the Motion To
Dismiss, Plaintiff cannot merely allege the existence of a municipal policy or custom, but “must
allege facts tending to support, at least circumstantially, an inference that such a municipal policy
or custom exists.” Santos v. New York City, 847 F. Supp. 2d 573, 576 (S.D.N.Y. 2012).
Here, Plaintiff has come up short on each front: far from alleging the existence of “a
formal policy officially endorsed by the municipality,” Murchison-Allman, 2016 WL 1322445, at
11
*5, he merely alleges that the City is responsible for all of its agencies and that the individual
Defendants engaged in illegal conduct, (see Second Am. Compl. ¶¶ 28–30). Plaintiff does not
attribute Defendants’ actions to any official policy and makes no claim that any Defendant was
in a position of policymaking authority relevant to this case, that an informal practice of
“illegal[] detain[ment] and incarcerat[ion]” was so prevalent among Defendants as to amount to
a custom, or that Defendants failed to provide adequate training or supervision to the point of
“deliberate indifference,” (see generally Second Am. Compl.), and, therefore, fails to satisfy the
“policy or custom” requirement, Murchison-Allman, 2016 WL 1322445, at *5. At best, Plaintiff
has alleged a violation of his constitutional rights; however, because “[p]roof of a single incident
of unconstitutional activity is,” absent something more, “not sufficient to impose liability under
Monell,” Tuttle, 471 U.S. at 823–24, his § 1983 claim against the City must be dismissed.
More importantly, Plaintiff makes two inconsistent statements: first, that an employment
relationship exists between the individual Defendants and the City (claiming that the City
“hire[d] in a leadership position . . . all of the defendants herein,” (Second Am. Compl. ¶ 28))—a
conclusory claim for which Plaintiff provides no factual grounding—and second, that the
Defendants are employees of New York State, (id. ¶¶ 29–30). As the City notes, “the only
government officials who [P]laintiff identifies as having been involved in the alleged violations
of his rights are a variety of New York State agencies and officials.” (City’s Mem. 7.)
The Court takes judicial notice of the fact that all of the individual Defendants are
employees of New York State, rather than New York City. “The court may judicially notice a
fact that is not subject to reasonable dispute because it: (1) is generally known within the trial
court’s territorial jurisdiction; or (2) can be accurately and readily determined from sources
whose accuracy cannot reasonably be questioned.” Fed. R. Evid. 201. Various courts in the
12
Second Circuit have taken judicial notice of public information regarding relevant parties in a
lawsuit. See, e.g., Abdullah v. IRA Velers Ins. Co., No. 13-CV-07825, 2014 U.S. Dist. LEXIS
171288, at *12 n.9 (S.D.N.Y. Oct. 28, 2014) (taking judicial notice “of the fact that no such
insurance company [as the plaintiff alleges] is currently registered to do business in New York,
based on available, online public records” and concluding that the plaintiffs had therefore
improperly named the insurance company as a defendant); Mathis v. Bess, 761 F. Supp. 1023,
1028 (S.D.N.Y. 1991) (taking judicial notice “of the fact that defendants Rosenblatt and
Reynolds no longer hold” the “official positions on which they were sued” and “dismiss[ing]
plaintiffs’ claims for injunctive relief as to [those defendants]”); Hilaire v. DeWalt Indus. Tool
Co., 54 F. Supp. 3d 223, 238 n.22 (E.D.N.Y. 2014) (taking judicial notice “that Underwriters
Laboratory is[,] [according to its website,] ‘a global independent safety science company’ that
promulgates safety standards” (citation omitted)).
Similarly, the fact that the individual Defendants are state employees rather than city
employees is “generally known” and can be “readily determined.” Aside from Plaintiff’s
descriptions of Defendants in the Second Amended Complaint as holding various positions
within either the New York State Department of Correctional Services or the New York State
Division of Parole, (see Second Am. Compl. 1–4 (neglecting to include the State as a defendant
but listing for each individual Defendant an affiliated agency, each of which bears the phrase
“New York State” in its name)), case law and the New York State Department of Corrections
and Community Supervision (“DOCCS”) website clarify that DOCCS and its formerly separate
components, DOCS and DOP, are state agencies whose officials qualify as state employees,3 see
3
DOCS and DOP combined in April 2011 to create DOCCS. See State of New York
Department of Correctional Services, Testimony of Brian Fischer, Commissioner 2 (Apr. 27,
2011), http://ojp.gov/reviewpanel/pdfs_apr11/testimony_fischer.pdf (“This month, we have
13
Flynn v. Ward, No. 15-CV-1028, 2015 WL 8056060, at *4 (N.D.N.Y. Dec. 4, 2015) (implying
that “DOCCS Directives” are “state law[s] or regulation[s]” and that DOCCS employees are
“state employee[s]” (citations omitted)); Gagne v. Fix, No. 11-CV-361, 2014 WL 950130, at *5
& n.11 (W.D.N.Y. Mar. 11, 2014) (indicating that “employees of DOCCS” are “state
employee[s]”); Collier v. Harter, No. 04-CV-6514, 2012 WL 1495366, at *11 (W.D.N.Y. Apr.
27, 2012) (identifying “DOCCS policy” as a “state regulation or internal policy,” and a DOCCS
employee as a “state employee” (citation omitted)); Gill v. Erickson, No. 03-CV-98, 2007 WL
642593, at *1 (W.D.N.Y. Feb. 26, 2007) (describing a DOCS employee as one of several “New
York State employee defendants”); see also Government: Your New York State Government, The
Official Website of New York State, http://www.ny.gov/agencies#all-agencies (last visited Aug.
23, 2016) (identifying DOCCS as a New York State government agency).
Accordingly, because none of the misconduct alleged was committed by City employees,
Plaintiff fails to state a claim for municipal liability against the City. His claim against the City
under 42 U.S.C. § 1983 is therefore dismissed.
The Court strongly suspects that Plaintiff intended to name the State as a defendant and
not the City. For that reason, Plaintiff is granted leave to amend his complaint one final time,
bearing in mind the requirements of pleading a Monell claim as described herein.
2. Municipal Liability Under State Law
The City next addresses a possible New York State common law claim of respondeat
superior liability, assuming that Plaintiff intended to assert such a claim in the Second Amended
Complaint. As the City correctly notes, (see City’s Mem. 7), in contrast to claims brought under
begun a new chapter in our history, by merging [New York State Department of Correctional
Services] with New York State Division of Parole. Our two agencies are now identified as the
New York State Department of Corrections and Community Supervision (DOCCS).”).
14
42 U.S.C. § 1983, respondeat superior liability does apply to claims brought under New York
state law, see, e.g., Williams v. City of White Plains, 718 F. Supp. 2d 374, 381 (S.D.N.Y. 2010)
(dismissing Monell claims against municipality before adding that the plaintiff’s “remaining state
law claim of assault and battery against the [municipality] [was] alive due to the potential for
vicarious liability for actions of its police officers as its employees”); L.B. v. Town of Chester,
232 F. Supp. 2d 227, 239 (S.D.N.Y. 2002) (“Unlike cases brought under § 1983, municipalities
may be liable for the common law torts . . . committed by their employees under the doctrine of
respondeat superior.” (italics omitted)). Under this doctrine, an employer can be held
“vicariously liable for torts committed by an employee acting within the scope of the
employment . . . , so long as the tortious conduct is generally foreseeable and a natural incident
of the employment.” RJC Realty Holding Corp. v. Republic Franklin Ins. Co., 808 N.E.2d 1263,
1265–66 (N.Y. 2004) (internal quotation marks omitted). “An employee’s actions fall within the
scope of employment where the purpose in performing such actions is ‘to further the employer’s
interest, or to carry out duties incumbent upon the employee in furthering the employer’s
business.’” Guzman v. United States, No. 11-CV-5834, 2013 WL 543343, at *9 (S.D.N.Y. Feb.
14, 2013) (quoting Beauchamp v. City of New York, 771 N.Y.S.2d 129, 131 (App. Div. 2004)),
reconsideration granted in part on other grounds, 2013 WL 5018553 (S.D.N.Y. Sept. 13, 2013);
see also De Sole v. Knoedler Gallery, LLC, 137 F. Supp. 3d 387, 416 (S.D.N.Y. 2015) (same).
“Because the question of whether an officer’s actions ‘were committed within the scope of his
public employment and the discharge of his duties raises factual questions,’ such inquiries often
survive motions for summary judgment, let alone motions to dismiss,” Guzman, 2013 WL
543343, at *9; however, in appropriate circumstances, a respondeat superior claim can be
disposed of upon a motion to dismiss, see Sgaliordich v. Lloyd’s Asset Mgmt., No. 10-CV-3669,
15
2011 WL 441705, at *4 (E.D.N.Y. Feb. 8, 2011) (granting motion to dismiss respondeat superior
claim because “[the] [p]laintiff [did] not plead[] sufficient facts concerning the employment
relationship between [the defendant] and [the putative employees]”); L.B., 232 F. Supp. 2d at
239 (dismissing respondeat superior claim against a town for actions of employees of a different
city, reasoning that the “[p]laintiff [did] not allege[] facts that would support the degree of
control . . . that would substitute for the lack of an employment relationship that would typically
provide the basis of liability”).
As previously noted, Plaintiff does not identify City employees who could provide the
requisite link establishing respondeat superior liability, instead naming exclusively New York
State employees as individual Defendants. (See Second Am. Compl. 1, ¶¶ 28–30.) This
omission bars Plaintiff from establishing respondeat superior liability on the part of the City of
New York, even if Plaintiff were to assert the claim under a statute where such liability is
generally permissible. Plaintiff’s common law claim against the City under New York State
common law is consequently dismissed, although the Court will, as noted above, provide
Plaintiff leave to amend his complaint one more time if he wishes to reevaluate whether he
intends to bring claims against the City or the State.
3. Compliance with New York General Municipal Law
In addition to its arguments regarding its liability under § 1983 and common law
respondeat superior, the City makes two arguments concerning Plaintiff’s compliance with the
requisite procedures governing tort claims brought against New York municipalities: first, that
Plaintiff did not file a notice of claim as required; and, second, that Plaintiff’s claim is untimely.
(See City’s Mem. 8–10.) Although the Court has already determined that Plaintiff has failed to
state a claim against the City, Plaintiff’s claims against the City fail for the additional reason that
16
Plaintiff failed to file a notice of claim. The Court declines to decide whether Plaintiff’s claims
are timely.
“[I]n a federal court, state notice-of-claim statutes apply to state-law claims.” Hardy v.
N.Y.C. Health & Hosp. Corp., 164 F.3d 789, 793 (2d Cir. 1999) (italics omitted); see also Croci
v. Town of Haverstraw, — F. Supp. 3d —, 2016 WL 1274582, at *9 (S.D.N.Y. Mar. 31, 2016)
(same); Higginbotham v. City of New York, 105 F. Supp. 3d 369, 377 (S.D.N.Y. 2015) (same).
Under New York law, “[n]o action . . . shall be prosecuted or maintained against a city . . . for
personal injury . . . alleged to have been sustained by reason of the . . . wrongful act . . . of any
officer, agent or employee” of the city unless “a notice of claim shall have been made and served
upon the city . . . in compliance with [§ 50-e] . . . .” N.Y. Gen. Mun. Law § 50-i(1). Under this
provision, “[t]o survive a motion to dismiss, a plaintiff must affirmatively plead that a notice of
claim was filed,” El v. City of New York, No. 14-CV-9055, 2015 WL 1873099, at *8 (S.D.N.Y.
Apr. 23, 2015); see also, e.g., Razzano v. County of Nassau, 599 F. Supp. 2d 345, 354 (E.D.N.Y.
2009) (“Under Section 50–i, a plaintiff is required to affirmatively plead in his complaint that he
has filed a notice of claim.” (alterations and internal quotation marks omitted)). This provision
applies to the false imprisonment claims brought against the City. See, e.g., Jones v. City of New
York, No. 13-CV-929, 2016 WL 1322443, at *5 (S.D.N.Y. Mar. 31, 2016) (dismissing false
imprisonment claim brought against the City and police officers, where, among other things,
“[the] [p]laintiff [did] not indicate[] that he . . . filed a notice of claim pursuant to New York
General Municipal Law Section 50-e.”); Jean v. City of New York, No. 08-CV-157, 2009 WL
3459469, at *10 (E.D.N.Y. Oct. 22, 2009) (“[The plaintiff] never filed any notice of claim
for . . . his . . . false imprisonment claim . . . . The [c]ourt therefore must dismiss [his] claims
brought under state law.”), aff’d sub nom. Jean v. Montina, 412 F. App’x 352 (2d Cir. 2011).
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Here, the Second Amended Complaint is devoid of any allegations relating to Plaintiffs
compliance with the requisite notice provisions. Accordingly, even if Plaintiff had stated a claim
against the City pursuant to § 1983 or common law respondeat superior, Plaintiffs claims
against the City must be dismissed for noncompliance with state notice-of-claim requirements.
See Jean, 2009 WL 3459469, at* I 0.
III. Conclusion
Accordingly, Defendants' Motion To Dismiss is granted. However, because this result
was dictated in part by deficiencies in Plaintiffs Second Amended Complaint, Plaintiff
will be afforded one last opportunity to amend it within 30 days of the date of this Opinion. The
Clerk is respectfully directed to terminate the pending Motion. (See Dkt. No. 59.)
SO ORDERED.
Dated:
September -? 6, 20 16
White Plains, New York
E
ET'~~(~i~~-
ITED STATES DISTRICT JUDGE
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