Carzoglio v. Abrams et al

Filing 71

MEMORANDUM OPINION AND ORDER re: 61 MOTION to Dismiss the Amended Complaint as to Defendant Westchester County, or in the Alternative, to Amend the Caption. MOTION to Amend/Correct 57 Amended Complaint . filed by West chester County Department of Corrections., For the foregoing reasons, the Court GRANTS Defendant's motion to dismiss. While Defendants represented to the Court that discovery related to Plaintiff's Fourth Amendment claim against A brams is ongoing (Def. Br. at 1), there has not been an Initial Pretrial Conference in this action and there is not an operative Civil Case Discovery Plan and Scheduling Order in place. Thus, an Initial Pretrial Conference Notice shall be issued in short order. The Court directs the Clerk to substitute Westchester County for the Westchester County Department of Corrections; to terminate the pending motion (Doc. 61); and terminate Westchester County as a Defendant in this action. The Court f urther directs the Clerk to mail a copy of this Memorandum Opinion and Order to Plaintiff at the address provided on the docket. SO ORDERED (Signed by Judge Philip M. Halpern on 2/3/2021) Westchester County added. Westchester County Department of Corrections (In their individual and official capacities) terminated. (ks) Transmission to Docket Assistant Clerk for processing.

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
----------------------------------------------------------X
ANGELO CARZOGLIO,
MEMORANDUM OPINION
AND ORDER

Plaintiff,
v.

18-CV-04198 (PMH)
THOMAS ABRAMS, et al.,
Defendants.
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PHILIP M. HALPERN, United States District Judge:
Plaintiff Angelo Carzoglio (“Plaintiff”), presently incarcerated at the Attica Correctional
Facility and proceeding pro se and in forma pauperis, commenced this action with the filing of
his Complaint on May 10, 2018. (Doc. 2). Plaintiff’s Complaint alleged that his constitutional
rights were violated while he was incarcerated at the Westchester County Jail (“WCJ”) in 2017
because he was subjected to unreasonable searches in violation of his Fourth Amendment rights
and verbal harassment in violation of his Fourteenth Amendment rights. Plaintiff also asserted
claims pertaining to the pricing, shipping, and handling of food and commissary products at the
WCJ. On February 25, 2020, Judge Román, who presided over this case before it was reassigned
to me on April 3, 2020, issued an Opinion and Order (the “Prior Order”) dismissing all of
Plaintiff’s claims except for his Fourth Amendment claim asserted against Defendant Thomas
Abrams (“Abrams”). (Doc. 56, “Op. & Order” at 17-18). Additionally, Plaintiff was granted
leave to file an amended complaint. (Id. at 18)

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Plaintiff filed a First Amended Complaint (“FAC”) naming as Defendants Abrams and
Westchester County (the “County”)1 on March 16, 2020. (Doc. 57, “FAC”). Abrams filed an
Answer to the FAC on April 6, 2020. (Doc. 59). By motion dated April 27, 2020, the County
moved to dismiss the FAC pursuant to Federal Rule of Civil Procedure 12(b)(6). (Doc. 61; Doc.
63, “Def. Br.”). Plaintiff filed a brief in opposition to Defendant’s motion on August 12, 2020
(Doc. 69, “Pl. Br.”), and the motion was fully submitted on August 24, 2020 with the filing of
Defendant’s reply brief (Doc. 70, “Reply”).
For the reasons set forth below, Defendant’s motion is GRANTED.
BACKGROUND
The facts, as recited below, are taken from Plaintiff’s FAC. On May 19, 2017, Abrams, a
“senior jail guard supervisor,” ordered three correctional officers to pat frisk and strip search
Plaintiff, and tamper with Plaintiff’s legal materials. (FAC at 4). On June 8, 2017, Abrams again
ordered correctional officers to pat frisk and strip search Plaintiff. (Id.). Plaintiff alleges that
during the second search he was forced to get naked and was subjected to verbal harassment.
(Id.). Plaintiff claims that the June 8 strip search was “personally recorded” by Abrams “on the
institutional video surveillance camera,” and that the search was conducted as retaliation after
Plaintiff filed a grievance related to the May 19 search. (Id. at 7). Thereafter, on June 12, 2017,
Abrams was allegedly arrested for “child sex crimes” and was subsequently suspended from his
employment at the WCJ. (Id. at 4, 7).
Plaintiff’s FAC actually names Westchester County Department of Correction (“WCDOC”) and not the
County as a Defendant. Plaintiff’s original Complaint also named WCDOC and not the County as a
Defendant. Judge Román issued an Order of Service in this action on May 23, 2018 which construed
Plaintiff’s claims against WCDOC as claims against the County and directed the Clerk of Court to amend
the caption to substitute the County for WCDOC pursuant to Federal Rule of Civil Procedure 21. (Doc. 6
at 2). Despite Judge Román’s instruction, the correct party was not substituted. The Court again construes
Plaintiff’s FAC as asserting claims against the County and not WCDOC. The Court will direct the Clerk
of Court to substitute the County for WCDOC.
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STANDARD OF REVIEW
On a Rule 12(b)(6) motion, the court may dismiss a complaint for “failure to state a claim
upon which relief can be granted.” Fed. R. Civ. P. 12(b)(6). “To survive a motion to dismiss, 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 on its face “when the ple[d] factual
content allows the court to draw the reasonable inference that the defendant is liable for the
misconduct alleged.” Id. (citing Twombly, 550 U.S. at 556). “The plausibility standard is not akin
to a ‘probability requirement,’ but it asks for more than a sheer possibility that a defendant acted
unlawfully.” Id. The factual allegations pled “must be enough to raise a right to relief above the
speculative level.” Twombly, 550 U.S. at 555.
“When there are well-ple[d] factual allegations [in the complaint], a court should assume
their veracity and then determine whether they plausibly give rise to an entitlement to relief.”
Iqbal, 556 U.S. at 679. Thus, the court must “take all well-ple[d] factual allegations as true, and
all reasonable inferences are drawn and viewed in a light most favorable to the plaintiff.” Leeds
v. Meltz, 85 F.3d 51, 53 (2d Cir. 1996). However, the presumption of truth does not extend to
“legal conclusions, and threadbare recitals of the elements of the cause of actions.” Harris v.
Mills, 572 F.3d 66, 72 (2d Cir. 2009) (quoting Iqbal, 556 U.S. 662). Therefore, a plaintiff must
provide “more than labels and conclusions” to show entitlement to relief. Twombly, 550 U.S. at
555.
A complaint submitted by a pro se plaintiff, “however inartfully ple[d], must be held to
less stringent standards than formal pleadings drafted by lawyers.” Estelle v. Gamble, 429 U.S.
97, 106 (1976) (quoting Haines v. Kerner, 404 U.S. 519, 520-21 (1972) (internal quotation

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marks omitted)). Because pro se plaintiffs are often unfamiliar with the formalities of pleading
requirements, courts must apply a more flexible standard in determining the sufficiency of a pro
se complaint than they would in reviewing the complaint of an individual represented by
counsel. Smith v. U.S. Dep’t of Just., 218 F. Supp. 2d 357 (W.D.N.Y. 2002). While “[p]ro
se complaints are held to less stringent standards than those drafted by lawyers, even following
Twombly and Iqbal . . . dismissal of a pro se complaint is nevertheless appropriate where a
plaintiff has clearly failed to meet minimum pleading requirements.” Thomas v. Westchester
Cty., No. 12-CV-6718, 2013 WL 3357171, at *2 (S.D.N.Y. July 3, 2013) (internal citations
omitted); see also Chavis v. Chappius, 618 F.3d 162, 170 (2d Cir. 2010) (“Even in a pro se case,
[] ‘although a court must accept as true all of the allegations contained in a complaint, that tenet
is inapplicable to legal conclusions, and threadbare recitals of the elements of a cause of action,
supported by mere conclusory statements, do not suffice.’” (quoting Harris v. Mills, 572 F.3d 66,
72 (2d Cir.2009))).
ANALYSIS
Examining the FAC with the required liberality, the Court construes the pleading as
asserting a Monell municipal liability claim against the County. “It is well established that a
municipality may not be held liable under Section 1983 for alleged unconstitutional actions by its
employees below the policy-making level solely upon the basis of respondeat superior.” Ukeje v.
N.Y.C. Health & Hosps. Corp., 821 F. Supp. 2d 662, 669 (S.D.N.Y. 2011) (citing Monell v.
Dep’t of Soc. Services of City of N.Y., 436 U.S. 658 (1978)). Rather, to prevail on a Monell claim
against a municipality “the plaintiff must plead and prove that the violation of constitutional
rights resulted from a municipal custom or policy.” Id. at 670 (citing Pembaur v. City of
Cincinnati, 475 U.S. 469, 478-83 (1986)). Thus, to assert a Monell claim against a municipality a

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plaintiff must plausibly allege and ultimately prove three things: “(1) an official policy or custom
that (2) causes the plaintiff to be subjected to (3) a denial of a constitutional right.” Wray v. City
of N.Y., 490 F.3d 189, 195 (2d Cir. 2007) (quoting Batista v. Rodriguez, 702 F.2d 393, 397 (2d
Cir. 1983)).
Proof of the existence of a municipal policy or custom is required because a plaintiff
must demonstrate that “the municipality took some action beyond merely employing the
[allegedly] misbehaving officers.” Chamberlain v. City of White Plains, 986 F. Supp. 2d 363,
390 (S.D.N.Y. 2013) (quoting Vippolis v. Vill. of Haverstraw, 768 F.2d 40, 44 (2d Cir. 1985)).
There are several ways in which a plaintiff can demonstrate that an official policy or custom
existed including:
(1) a formal policy which is officially endorsed by the
municipality; (2) actions taken or decisions made by government
officials responsible for establishing municipal policies which
caused the alleged violation of the plaintiff's civil rights; (3) a
practice so persistent and widespread that it constitutes a ‘custom
or usage’ and implies the constructive knowledge of policy-making
officials; or (4) a failure by official policy-makers to properly train
or supervise subordinates to such an extent that it amounts to
deliberate indifference to the rights of those with whom municipal
employees will come into contact.
Id.
Here, the FAC alleges only that the County employed Abrams and does not include any
allegations sufficient to establish that the County had an official policy or custom that caused a
violation of Plaintiff’s constitutional rights. Judge Román held in the Prior Order:
Even construing the pleadings liberally, Plaintiff has not alleged
sufficient facts to plausibly allege Westchester County’s liability
under Monell. To “successfully state a claim for Monell liability, a
plaintiff must ‘make factual allegations that support a plausible
inference that the constitutional violation took place pursuant
either to a formal course of action officially promulgated by the
municipality’s governing authority or the act of a person with
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policy making authority for the municipality.’” Nielsen v. Cty. of
Rochester, 58 F. Supp. 3d 268, 277 (W.D.N.Y. 2014) (quoting
Missel v. Cty. of Monroe, 351 F. App’x 543, 545 (2d Cir. 2009)).
The Complaint does note that Abrams was employed by the
Westchester Department of Corrections (“DOC”), and that the
Westchester DOC suspended Abrams from the department. (See
Compl. at 6, 11[).] But this does not come close to alleging an
official custom or policy . . . . Plaintiff’s claims against
Westchester County are therefore dismissed without prejudice.
Op. & Order at 17. While Plaintiff was permitted the opportunity to amend his Complaint “to
allege additional facts that would plausibly establish an official Westchester County custom or
policy” (id.), Plaintiff did not avail himself of this opportunity as the FAC does not include a
single allegation that leads to the plausible inference that the County maintained an official
policy or custom that led to a violation of Plaintiff’s rights.
The FAC states only that the County “should be held liable[] for any judgement [sic] or
settlement in favor of plaintiff.” (FAC at 5). Plaintiff argues in his brief in opposition that his
claim against the County can survive because the County is required to indemnify Abrams if
Plaintiff ultimately prevails on his Fourth Amendment claim against Abrams. (Pl. Br. at 4-5).
Even if the County were required to indemnify Abrams should Plaintiff prevail—a fact that the
County disputes (see Reply at 1-2)—an obligation to indemnify does not establish municipal
liability as to the party subject to indemnification obligations. See Crews v. Cty. of Nassau, 149
F. Supp. 3d 287, 291 (E.D.N.Y. 2015) (“Whether the County is responsible for indemnifying [a
defendant-employee] is an issue separate and apart from the County's Monell liability . . . .”).
The question of indemnification is simply irrelevant to whether Plaintiff has adequately pled a
Monell municipal liability claim.
Because a municipality may not be held liable for the unconstitutional actions of its
employees unless a plaintiff can establish that the municipality maintained a policy or custom

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that led to a constitutional violation, and because Plaintiff’s allegations in no way permit the
plausible inference that such a policy was in effect, Plaintiff’s Monell claim against the County is
dismissed.
CONCLUSION
For the foregoing reasons, the Court GRANTS Defendant’s motion to dismiss. While
Defendants represented to the Court that discovery related to Plaintiff’s Fourth Amendment
claim against Abrams is ongoing (Def. Br. at 1), there has not been an Initial Pretrial Conference
in this action and there is not an operative Civil Case Discovery Plan and Scheduling Order in
place. Thus, an Initial Pretrial Conference Notice shall be issued in short order.
The Court directs the Clerk to substitute Westchester County for the Westchester County
Department of Corrections; to terminate the pending motion (Doc. 61); and terminate
Westchester County as a Defendant in this action. The Court further directs the Clerk to mail a
copy of this Memorandum Opinion and Order to Plaintiff at the address provided on the docket.

SO ORDERED:
Dated: New York, New York
February 3, 2021
_______________________________
Philip M. Halpern
United States District Judge

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