Wheeler v. Doe et al

Filing 42

OPINION AND ORDER. For the foregoing reasons, the Court grants the Town's Motion To Dismiss. In light of Plaintiff's pro se status, and because this is the first adjudication of Plaintiff's claims on the merits, his claims are dismisse d without prejudice. If Plaintiff wishes to file an Amended Complaint alleging additional facts and otherwise addressing the deficiencies identified above, Plaintiff must do so within 30 days of the date of this Opinion & Order. The failure to do so may result in the dismissal of Plaintiff's claims against the Town with prejudice. If Plaintiff files no Amended Complaint, the Court will assume Plaintiff intends only to proceed with the claims against Defendant Kolek. The Clerk of Court is re spectfully requested to terminate the pending Motions. (See Dkt. Nos. 22, 26.) SO ORDERED. re: 26 MOTION for an order denying Defendant's Motion to Dismiss Plaintiff's Amended Complaint filed by Damon Wheeler, 22 MOTION to Dismiss plaintiff's amended complaint filed by Town of Wallkill. Town of Wallkill terminated. (Signed by Judge Kenneth M. Karas on 7/13/2017) (rjm)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
DAMON WHEELER,
Plaintiff,
No. 16-CV-7441 (KMK)

-vTOWN OF WALLKILL; JOSEPH C.
KOLEK,

OPINION & ORDER

Defendants.
Appearances:
Damon Wheeler
Valhalla, NY
Pro Se Plaintiff
James A. Randazzo, Esq.
Gaines, Novick, Ponzini, Cossu & Venditti, LLP
White Plains, NY
Counsel for Defendant Town of Wallkill
Mary Kim, Esq.
New York State Office of the Attorney General
New York, NY
Counsel for Defendant Joseph C. Kolek
KENNETH M. KARAS, District Judge:
Plaintiff Damon Wheeler (“Plaintiff”), currently an inmate at Westchester County Jail,
brings this pro se Action against the Town of Wallkill (the “Town”) and Investigator Joseph C.
Kolek (“Kolek,” and together with the Town, “Defendants”), alleging violations of his
constitutional rights under the Fourth, Fifth, Sixth, Eighth, and Fourteenth Amendments. (See
Am. Compl. (Dkt. No. 14).) 1 Before the Court is the Town’s Motion To Dismiss Plaintiff’s

1

While Plaintiff’s Amended Complaint does not explicitly reference any constitutional
amendments, Plaintiff’s response to the Town’s Motion alleges violations of each of the
aforementioned amendments. (See generally Pl. Resp. to Def. Town of Wallkill Mot. To Dismiss

Amended Complaint (the “Motion”). (See Dkt. No. 22.) For the reasons to follow, the Motion is
granted.
I. Background
A. Factual Background
The following facts are taken from Plaintiff’s Amended Complaint and are assumed true
for the purpose of resolving the instant Motion.
On September 6, 2014, at approximately 4:15 p.m., Plaintiff “was arrested at [his] home
without an arrest warrant and charged with a felony . . . by Inv[estigator] Joseph Kolek of the
New York State Police.” (Am. Compl. 4.) At the time of the arrest, Plaintiff was “home alone
with [his] infant son.” (Id.) Plaintiff avers that Kolek and three state troopers “rang the
doorbell” and when Plaintiff identified himself, “they said they had a warrant for [his] arrest.”
(Id.) 2 When Plaintiff inquired what the warrant was for, Kolek stated that he would “tell
[Plaintiff] when [they] g[o]t to the station.” (Id. (internal quotation marks omitted).) Plaintiff
asked to see the warrant and was again told he could do so at the station. (See id.) Plaintiff
explained that he “was home alone with [his] infant son and . . . [Kolek] insisted that [Plaintiff]
allow [the troopers] to wait inside [his] house until someone c[ame] to care for [his] son.” (Id.)
Kolek and the three troopers “entered . . . without [his] permission and stood guard in
[Plaintiff’s] livingroom as [he] sat on the couch with [his] infant son, terrified and shaking like a
leaf.” (Id.) Plaintiff contends that his “son senses [Plaintiff’s] anxiety which makes [his son]
uncomfortable.” (Id.) Plaintiff then called his wife, who “rushe[d] home.” (Id.)
Plaintiff alleges that during the time the troopers were in his home, he was “restricted to

Pl.’s Am. Compl. (Dkt. No. 28).)
2

The three state troopers are not named as defendants in this Action.
2

the couch” and “afraid to move from [it].” (Id.) After approximately 30 minutes, Plaintiff’s wife
arrived. (See id.) When Plaintiff “explain[ed] the situation to her,” she also asked to see the
arrest warrant. (Id. at 4–5.) Kolek replied that the warrant was “at the station.” (Id. at 5
(internal quotation marks omitted).) Plaintiff then requested permission from Kolek to change
his clothes so that he could be “properly dressed for court,” and Kolek “followed [Plaintiff] into
the bedroom and watched [him] the entire time.” (Id.) Plaintiff was then handcuffed and taken
into custody “right in front of [his] family, without an arrest warrant.” (Id.)
Plaintiff was taken to “the State Trooper Barracks on Crystal Run R[oad],” and “taken to
a room and questioned by Investigator Kolek about a crime that he said took place in
Middletown, N[ew] Y[ork].” (Id.) When Plaintiff “requested to see a lawyer,” “[t]he
conversation was over.” (Id.) Plaintiff asserts that Kolek “never produced the warrant for
[Plaintiff’s] arrest,” but Plaintiff was told he was being charged with [criminal possession of
stolen property in the third degree], a felony.” (Id.) Plaintiff was subsequently “taken to the
Town of Wallkill [c]ourt and seen by a Judge who ordered that [he] be remanded pending a
[g]rand [j]ury [h]earing.” (Id.)
Plaintiff was held in Orange County Jail for six days before he was “produced at the
Town of Wallkill [c]ourt for the [g]rand [j]ury [h]earing.” (Id.) Plaintiff appeared before Judge
Patrick Owen “without legal representation.” (Id.) At the hearing, the Assistant District
Attorney (the “ADA”) “requested a 2nd call so she could go back to the [District Attorney’s]
office and ask him to reduce the charges to a misdemeanor so she could request . . . bail.” (Id.)
Plaintiff objected “because [he] was prepared to testify” before the grand jury, but Judge Owen
granted the ADA’s request. (Id.) The ADA reduced the charges against Plaintiff to criminal
possession of stolen property in the fifth degree, a misdemeanor, and “requested bail be set at

3

$50,000.” (Id.) Plaintiff objected unsuccessfully and “was taken back to Orange County Jail in
l[ieu] of $50,000 . . . .” (Id.)
Plaintiff alleges that “time passed” and “to [his] surprise, the [s]upervisor at the Legal Aid
Society submitted a motion for . . . bail reduction on [Plaintiff’s] behalf.” (Id.) Plaintiff’s bail
was reduced to $5,000 and his family was able to post the amount. (See id.) “When [Plaintiff]
came to court a few months later, [he] was told that [his] case was dismissed.” (Id.)
B. Procedural History
On September 23, 2016, Plaintiff filed the initial Complaint in this Action naming the
Town of Wallkill Police Department and a John Doe Defendant. (See Dkt. No. 2.) 3 In an Order
issued October 17, 2016, the Court directed the Clerk of Court to substitute the Town of Wallkill
for the Town of Wallkill Police Department. (See Am. Order & Valentin Order (Dkt. No. 7).) 4
The same Order directed the Town Attorney for the Town of Wallkill to ascertain the identity of
the John Doe Defendant and the address where Defendant could be served. (See id. at 3.)
On October 21, 2016, Plaintiff submitted an application for the Court to appoint pro bono
counsel, (see Dkt. No. 8), which the Court denied without prejudice on November 1, 2016, (see
Dkt. No. 13).
Pursuant to the Court’s October 17, 2016 Order, counsel for Defendant Town of Wallkill
informed the Court that the John Doe Defendant Plaintiff named in the Complaint was
Investigator Joseph C. Kolek of the New York State Police—Middletown Barracks. (See Letter
from William A. Frank, Esq. to Court 2 (Dkt. No. 10).) A copy of counsel’s letter was sent to an

3

Plaintiff’s request to proceed in forma pauperis was granted on October 11, 2016. (See
Dkt. No. 5.)
4

The Court’s October 17, 2016 Order amended an Order issued three days earlier. (See
Dkt. No. 6.)
4

address for Defendant Kolek. (See id.) On November 7, 2016, Plaintiff filed an Amended
Complaint naming the Town of Wallkill and Kolek as Defendants. (See Am. Compl.) One week
later, on November 15, 2016, Plaintiff filed a letter with the Court, detailing why “the Town of
Wallkill should be held liable.” (See Dkt. No. 15.) 5
In response to a December 12, 2016 pre-motion letter from the Town, (see Dkt. No. 17),
the Court issued a Scheduling Order related to the Town’s Motion To Dismiss, (see Dkt. No. 19).
On January 20, 2017, the Town filed its Motion To Dismiss and accompanying papers, (see Dkt.
Nos. 22–25), and on February 13, 2017, Plaintiff filed his papers in opposition, (see Dkt. Nos.
26–28). The Town filed its papers in reply on February 22, 2017. (See Dkt. Nos. 29–30.)
On March 6, 2017, Plaintiff submitted a motion seeking leave to file an amended
complaint. (See Dkt. No. 31.) On March 8, 2017, the Court denied the motion to amend, noting
that “Plaintiff already ha[d] amended his complaint and there [wa]s a pending motion to
dismiss.” (Dkt. No. 32.)
In a letter dated April 17, 2017, Plaintiff requested “confirmation as to whether or not
[D]efendant[] Joseph C. Kolek was ever served his Summons by the Federal Marshal[]s.” (See
Dkt. No. 33.) Plaintiff also requested an extension of time for service. (See id.) Pursuant to that
request, the Court issued an Order of Service on April 25, 2017. (See Dkt. No. 34.) 6

5

Plaintiff’s letter was filed on a standard amended complaint form and docketed as
Plaintiff’s “Second Amended Complaint.” (See Dkt. No. 15.) However, the Court notes that
despite this label, the operative complaint in this Action is the Amended Complaint. (See Dkt.
No. 14.)
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Defendant Kolek was served on May 15, 2017. (See Dkt. No. 36.)
5

II. Discussion
A. Standard of Review
The Supreme Court has held that although a complaint “does not need detailed factual
allegations” to survive a motion to dismiss, “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)
(alteration and internal quotation marks omitted). Indeed, Rule 8 of the Federal Rules of Civil
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. (alteration and internal quotation marks
omitted). Rather, 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. Although “once 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, if a plaintiff has not “nudged [his] 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 contextspecific 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.’” (second alteration in original) (citation omitted) (quoting Fed. R. Civ. P.
8(a)(2))); id. at 678–79 (“Rule 8 marks a notable and generous departure from the
hypertechnical, code-pleading regime of a prior era, but it does not unlock the doors of discovery

6

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), and
“draw[] 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 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.” Leonard F. v. Isr. Disc. Bank of N.Y., 199 F.3d 99, 107 (2d Cir. 1999)
(internal quotation marks omitted); see also Wang v. Palmisano, 157 F. Supp. 3d 306, 317
(S.D.N.Y. 2016) (same).
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 (2d Cir. 2006) (per
curiam) (same). This admonition “applies with particular force when a plaintiff’s civil rights are
at issue.” Maisonet, 640 F. Supp. 2d at 348; see also McEachin v. McGuinnis, 357 F.3d 197, 200
(2d Cir. 2004) (same). 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).
B. Analysis
In its Motion, the Town argues that because “Plaintiff has failed to sufficiently plead a
municipal policy, custom or practice which caused any purported constitutional deprivations,”

7

his Amended Complaint must be dismissed. (Def. Town of Wallkill’s Mot. To Dismiss Pl.’s Am.
Compl. 1 (Dkt. No. 24).) The Court agrees.
A municipal defendant “cannot be held liable under § 1983 on a respondeat superior
theory.” Monell v. Dep’t of Soc. Servs. of City of N.Y., 436 U.S. 658, 691 (1978) (italics omitted);
see also Jones v. Town of E. Haven, 691 F.3d 72, 80 (2d Cir. 2012) (reaffirming that “a
municipality cannot be held liable on a respondeat superior basis for the tort of its employee”
(italics omitted)). 7
To the extent Plaintiff cites allegedly unconstitutional conduct by Town employees, such
as Judge Owen and Kolek, the same bar on ascribing liability applies. For a plaintiff to prevail
on a § 1983 claim against a municipal employer, he must satisfy the requirements set forth in
Monell and its progeny, which adhere to the well-settled principle that “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; see also Hunter v. City of
New York, 35 F. Supp. 3d 310, 322 (E.D.N.Y. 2014) (“In order to sustain a claim for relief
pursuant to § 1983 against a municipal defendant, a plaintiff must show the existence of an
official policy or custom that caused injury and a direct causal connection between that policy or

7

Plaintiff alleges in his Amended Complaint that Kolek is employed by the New York
State Police. (See Am. Compl. 4 (“[Plaintiff] was arrested at [his] home . . . by Inv[estigator]
Joseph Kolek of the New York State Police.”).) In his opposition to Defendants’ Motion,
Plaintiff asserts that Kolek is both “an[] Investigator for the New York State Police and an
employee of the Town of Wallkill.” (Pl. Resp. to Def. Town of Wallkill Mot. To Dismiss Pl.’s
Am. Compl. 5 (Dkt. No. 28).) While the Court may consider “factual allegations made by a pro
se party in his papers opposing the motion,” Walker v. Schult, 717 F.3d 119, 122 n.1 (2d Cir.
2013) (italics omitted), it is appropriate to do so only “to the extent that they are consistent with
the allegations in the complaint,” Alsaifullah v. Furco, No. 12-CV-2907, 2013 WL 3972514, at
*4 n.3 (S.D.N.Y. Aug. 2, 2013) (internal quotation marks omitted). Thus even could Kolek’s
actions be imputed to his employer, which they cannot, see Monell, 436 U.S. at 691, Plaintiff
asserts that Kolek was employed by the New York State Police at the time of the alleged
violations and the Town would not be the responsible municipality.
8

custom and the deprivation of a constitutional right.”). A plaintiff may satisfy the “policy or
custom” requirement 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.
Brandon v. City of New York, 705 F. Supp. 2d 261, 276–77 (S.D.N.Y. 2010) (citations omitted).
In addition, a plaintiff must establish a causal link between the municipality’s policy, custom, or
practice and the alleged constitutional injury. See Roe v. City of Waterbury, 542 F.3d 31, 37 (2d
Cir. 2008) (holding that “a plaintiff must demonstrate that, through its deliberate conduct, the
municipality was the moving force behind the alleged injury” (internal quotation marks
omitted)); Tieman v. City of Newburgh, No. 13-CV-4178, 2015 WL 1379652, at *12 (S.D.N.Y.
Mar. 26, 2015) (“[T]here must be a direct causal link between a municipal policy or custom and
the alleged constitutional deprivation.” (internal quotation marks omitted)); Johnson v. City of
New York, No. 06-CV-9426, 2011 WL 666161, at *3 (S.D.N.Y. Feb. 15, 2011) (noting that “a
plaintiff must establish a causal connection—an affirmative link—between the [municipal]
policy and the deprivation of his constitutional rights” (internal quotation marks omitted)).
“Normally, a custom or policy cannot be shown by pointing to a single instance of
unconstitutional conduct by a mere employee of the municipality.” Tieman, 2015 WL 1379652,
at *12 (alteration and internal quotation marks omitted); see also Oklahoma City v. Tuttle, 471
U.S. 808, 823–24 (1985) (“Proof of a single incident of unconstitutional activity is not sufficient
to impose liability under Monell, unless proof of the incident includes proof that it was caused by
an existing, unconstitutional municipal policy . . . [that] can be attributed to a municipal
9

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.”). However, there are two
circumstances that courts have expressly identified as constituting a municipal policy: “where
there is an officially promulgated policy as that term is generally understood,” and “where a
single act is taken by a municipal employee who, as a matter of [s]tate law, has final
policymaking authority in the area in which the action was taken.” Newton v. City of New York,
566 F. Supp. 2d 256, 271 (S.D.N.Y. 2008). “A municipal ‘custom,’ on the other hand, need not
receive formal approval by the appropriate decisionmaker,” id., but nonetheless “may fairly
subject a municipality to liability on the theory that the relevant practice is so widespread as to
have the force of law,” Kucharczyk v. Westchester County, 95 F. Supp. 3d 529, 539 (S.D.N.Y.
2015) (internal quotation marks omitted); see also Tieman, 2015 WL 1379652, at *16 (“To
prevail on this theory of municipal liability, . . . a plaintiff must prove that the custom at issue is
permanent and well-settled.”).
Plaintiff’s Amended Complaint makes no mention of any policy or custom in connection
with the alleged violations. (See generally Am. Compl.) However, in response to the Town’s
Motion, Plaintiff avers “that the violation of his constitutional rights resulted from a municipal
policy, custom or practice that was not adhe[re]d to by one or more of its employees.” (Pl. Resp.
to Def. Town of Wallkill Mot. To Dismiss Pl.’s Am. Compl. (“Pl.’s Resp.”) 4 (Dkt. No. 28).)
Plaintiff’s allegation that Kolek, “[a]n employee of the Town of Wallkill[,] should have
been properly trained in the formal policy of [e]xecuting an [a]rrest [w]arrant” fails to state a
claim. (Id. at 5.) First, “the simple recitation that there was a failure to train municipal
employees does not suffice to allege that a municipal custom or policy caused the plaintiff’s

10

injury. A single incident alleged in a complaint, especially if it involved only actors below the
policymaking level, generally will not suffice to raise an inference of the existence of a custom
or policy.” Dwares v. City of New York, 985 F.2d 94, 100 (2d Cir. 1993), overruled on other
grounds by Leatherman v. Tarrant Cty. Narcotics Intelligence & Coordination Unit, 507 U.S. 163
(1993). Second, as noted above, Plaintiff’s Amended Complaint identifies Kolek as an employee
of New York State, and therefore, the Town cannot be liable for a purported failure to train him.
See Askew v. Lindsey, No. 15-CV-7496, 2016 WL 4992641, at *4 n.2 (S.D.N.Y. Sept. 16, 2016)
(“Plaintiff has not plausibly alleged that the County or the Town exercised control or authority
over officers . . . employed by the Village, a separate municipality.”); see also Lovitch v. County
of Orange, No. 11-CV-2536, 2013 WL 3805142, at *4 n.6 (S.D.N.Y. July 19, 2013) (“[I]t is
undisputed that [the police officer] was not an employee of the [c]ounty, and that the [c]ounty
was not responsible for supervising or training [the police officer].”). But even if Kolek was a
Town employee, Plaintiff has not alleged (nor could he) that Kolek was a policymaker. Indeed,
Kolek is alleged to be the law enforcement officer who arrested Plaintiff.
Plaintiff claims that he “suffered further injuries after his false arrest at the hands of the
Town of Wallkill [c]ourt,” when he was “made to stand before Judge Owen . . . without a
lawyer.” (Pl.’s Resp. 6–7.) Plaintiff alleges that this
is undoubtedly a (1) formal policy which is officially endorsed by the municipality,
an[d] (2) the decision to allow [Plaintiff] to stand before the [c]ourt without first
assigning an attorney to represent him . . . was made by Judge Owen, who is
responsible for establishing municipal policies which caused this particular civil
rights violation, and (3) assigning an attorney for a criminal defendant is a practice
so persist[e]nt and widespread that it constitutes a “custom or usage” and implies
the constructive knowledge of policy-making officials.
(Id. at 7.) Plaintiff’s conclusory statement that allowing criminal defendants to appear without
representation “is undoubtedly a . . . formal policy which is officially endorsed by the

11

municipality” is insufficient to state a Monell claim. (Id.) 8 Plaintiff provides no facts in support
of this statement, but rather offers a “formulaic recitation” of the law. Twombly, 550 U.S. at 555.
See Guerrero v. City of New York, No. 12-CV-2916, 2013 WL 673872, at *2 (S.D.N.Y. Feb. 25,
2013) (“At the pleading stage, the mere assertion . . . that a municipality has such a custom or
policy is insufficient in the absence of allegations of fact tending to support, at least
circumstantially, such an inference.” (internal quotation marks omitted)); see also Lowery v. City
of New York, No. 10-CV-7284, 2014 WL 2567104, at *6 (S.D.N.Y. June 6, 2014) (dismissing a
pro se plaintiff’s Monell claim for failing to allege either an underlying violation or sufficient
facts beyond “boilerplate, conclusory allegations”); Simms v. City of New York, No. 10-CV-3420,
2011 WL 4543051, at *3 (E.D.N.Y. Sept. 28, 2011) (dismissing conclusory allegations that did
not provide any facts that would allow the court to infer what city policies or practices led to the
alleged deficiency) (citing Iqbal, 556 U.S. at 678–79), aff’d, 480 F. App’x 627 (2d Cir. 2012).
“Allegations that a defendant acted pursuant to a policy or custom without any facts suggesting
the policy’s existence, are plainly insufficient.” Moore v. City of New York, No. 08-CV-8879,
2010 WL 742981, at *6 (S.D.N.Y. Mar. 2, 2010) (internal quotation marks omitted).
Plaintiff’s allegation that Judge Owen “is responsible for establishing municipal policies
which caused this particular civil rights violation,” (Pl.’s Resp. 7), also does not “nudge[] [his]
claims across the line from conceivable to plausible,” Twombly, 550 U.S. at 570. A municipality

8

Plaintiff’s claim that the assignment of attorneys to criminal defendants “is a practice so
persist[e]nt and widespread that it constitutes a ‘custom or usage’ and implies the constructive
knowledge of policy-making officials,” alternatively seems to suggest that the Town failed to
follow a widespread practice that otherwise would have prevented the alleged constitutional
violation. (Pl.’s Resp. 7.) Plaintiff cites no other instances in which criminal defendants were
denied representation. Therefore, this “single incident by itself is . . . insufficient to establish the
affirmative link between [an alleged] municipal policy or custom and the alleged
unconstitutional violation.” Brogdon, 200 F. Supp. 2d at 427.
12

may be subject to § 1983 liability for acts of its officials “who have final policymaking
authority” in the area in which the action was taken. City of St. Louis v. Praprotnik, 485 U.S.
112, 123 (1988) (internal quotation marks omitted). “[W]hether a particular official has final
policymaking authority is a question of state law.” Id. (internal quotation marks and italics
omitted). “The Second Circuit has not addressed the policymaking authority of judges; however,
other circuits have determined that municipal judges do not act as policymakers and therefore a
municipality cannot be liable under Monell for a [§] 1983 claim based solely on the actions of its
judges.” Bliven v. Hunt, 478 F. Supp. 2d 332, 337 & n.2 (E.D.N.Y. 2007) (citing cases from the
Fifth, Seventh, Eighth, Ninth, and Tenth Circuits), aff’d, 579 F.3d 204 (2d Cir. 2009); see also
Rodriguez v. City of New York, No. 02-CV-8203, 2004 WL 444089, at *4 (S.D.N.Y. Mar. 10,
2004) (finding that the holding of other circuits “that municipal judges do not act as
policymakers and therefore a municipality cannot be liable under Monell for a [§] 1983 claim
based solely on the actions of its judges . . . is sound and persuasive”). “In addition, multiple
district courts have determined that under New York law, village and similar judges are not
considered policymakers for the purposes of evaluating a Monell claim.” Berry v. Village of
Millbrook, 815 F. Supp. 2d 711, 719 (S.D.N.Y. 2011); see also Szymaszek v. Mahar, No. 06-CV719, 2008 WL 4518613, at *8 (N.D.N.Y. Sept. 29, 2008) (holding that the city defendant “cannot
be liable through any actions or inactions” by its former city court judge); Garcha v. City of
Beacon, 351 F. Supp. 2d 213, 218 (S.D.N.Y. 2005) (noting that “a municipality is not liable,
vicariously, for an official act of one of its judges”); Estes-El v. Town of Indian Lake, 954 F.
Supp. 527, 536 (N.D.N.Y. 1997) (holding that a town judge is not a policymaker because “the
jurisdiction of his court as well as the requirements of his job are prescribed by state law” and
“his decisions are not final because they are appealable to higher courts within the state court

13

system” and, “[t]herefore, . . . the [t]own is not responsible for [the] Judge[’s] conduct when he
acts in his judicial capacity”). Moreover, municipal judges are typically State employees, over
whom the municipality does not have control. See Rodriguez, 2004 WL 444089, at *4
(concluding that because a municipal judge is an employee of the State and not the municipality,
“even if the judge’s actions had amounted to that of a policymaker, the [municipality] would not
be liable under Monell ”); Estes-El, 954 F. Supp. at 536 (holding that “the Town is not
responsible for [the] Judge[’s] conduct when he acts in his judicial capacity, as he did in the
present case”). Thus, based on the foregoing, the Court holds that Judge Owen is not a
policymaker for the purpose of establishing municipal liability pursuant to Monell.
Furthermore, while Plaintiff does not name Judge Owen as a defendant in this lawsuit, to
the extent Plaintiff claims Judge Owen’s actions were unconstitutional, judicial immunity would
bar Judge Owen from being held liable. See Montero v. Travis, 171 F.3d 757, 760 (2d Cir. 1999)
(per curiam) (explaining “that officials acting in a judicial capacity are entitled to absolute
immunity against § 1983 actions,” which “acts as a complete shield to claims for money
damages”). Plaintiff’s allegations implicating Judge Owen stem solely from actions taken while
he presided over Plaintiff’s prosecution in the Town of Wallkill court, (see Am. Compl. 5
(alleging that Judge Owen “ordered that [Plaintiff] be remanded pending a [g]rand [j]ury
[h]earing”); id. (alleging that “[t]he Judge granted [the ADA’s] request[s]”)), which clearly fall
within his judicial capacity, see Bliven v. Hunt, 579 F.3d 204, 210 (2d Cir. 2009) (“[T]he
Supreme Court has generally concluded that acts arising out of, or related to, individual cases
before the judge are considered judicial in nature.”); Karris v. Varulo, No. 14-CV-1077, 2014
WL 1414483, at *3 (E.D.N.Y. Apr. 10, 2014) (holding that judicial immunity applies to claims
“relating to actions taken in [the judge’s] judicial capacity during [the] plaintiff’s underlying

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criminal prosecution") . Accordingly, Plaintiff's claims against the Town are dismissed .
III. Conclusion
For the foregoing reasons, the Court grants the Town's Motion To Dismiss. In light of
Plaintiff's pro se status, and because this is the first adjudication of Plaintiff's claims on the
merits, his claims are dismissed without prejudice. If Plaintiff wishes to file an Amended
Complaint alleging additional facts and otherwise addressing the deficiencies identified above,
Plaintiff must do so within 30 days of the date of this Opinion & Order. The failure to do so may
result in the dismissal of Plaintiff's claims against the Town with prejudice. If Plaintiff files no
Amended Complaint, the Court will assume Plaintiff intends only to proceed with the claims
against Defendant Kolek.
The Clerk of Court is respectfully requested to terminate the pending Motions. (See Dkt.
Nos. 22 , 26.)
SO ORDERED.
Dated:

J3 ,

2017
July
White Plains, New York

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