Ruiz v. Westchester County DOC et al
Filing
43
OPINION AND ORDER re: 31 MOTION to Dismiss the Second Amended Complaint filed by Westchester County, Danny Lopez, Scott Monteleon. For the reasons above, Defendants' Motion To Dismiss the SAC is granted. Plaintiff is given on e final opportunity to amend his pleading, addressing the issues raised in this Opinion & Order. If Plaintiff wishes to file a third amended complaint, Plaintiff must do so in 30 days. Plaintiff is advised that the newest complaint would replace, n ot supplement, his previous complaints. The third amended complaint must contain all of the claims, defendants, factual allegations, and exhibits that Plaintiff wishes the Court to consider. If Plaintiff fails to timely file a third amended compla int, his claims may be dismissed with prejudice. The Clerk of Court is respectfully requested to terminate the pending Motion, (see Dkt. No. 31), and to mail a copy of this Opinion & Order to Plaintiff. (As further set forth in this Order.) (Signed by Judge Kenneth M. Karas on 7/28/2020) (cf) Transmission to Docket Assistant Clerk for processing. Transmission to Orders and Judgments Clerk for processing.
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UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
JORDAN I. RUIZ,
Plaintiff,
v.
No. 18-CV-7007 (KMK)
OPINION & ORDER
WESTCHESTER COUNTY, et al.,
Defendants.
Appearances:
Jordan I. Ruiz
East Elmhurst, NY
Pro se Plaintiff
Sean Timothy Carey, Esq.
Westchester County Attorney’s Office
White Plains, NY
Counsel for Defendants
KENNETH M. KARAS, United States District Judge:
Jordan Ruiz (“Plaintiff”), proceeding pro se, brings this Action, pursuant to 42 U.S.C.
§ 1983, against Correctional Officer Scott Monteleon (“Monteleon”), Sergeant Danny Lopez
(“Lopez”), and Westchester County (the “County”) (collectively, “Defendants”), alleging that
they violated Plaintiff’s constitutional rights during Plaintiff’s detention at Westchester County
Jail (“WCJ”). (See generally Second Am. Compl. (“SAC”) (Dkt. No. 27).) Plaintiff alleges that
Defendants failed to prevent Plaintiff from being placed in a holding cell with inmate Sincere
Smith (“Smith”), and that Plaintiff suffered injuries from a physical altercation with Smith as a
Case 7:18-cv-07007-KMK Document 43 Filed 07/28/20 Page 2 of 22
result.1 (See id. at 2–3.)2 Before the Court is Defendants’ Motion To Dismiss (the “Motion”) the
Second Amended Complaint (the “SAC”), filed pursuant to Federal Rule of Civil Procedure
12(b)(6). (See Not. of Mot. (Dkt. No. 31).) For the reasons discussed below, the Court grants
the Motion.
I. Background
A. Factual Background
The following facts are drawn from the SAC and are assumed true for purposes of
resolving the instant Motion.
On July 31, 2017, Plaintiff “was involved in a fist fight” with Smith at WCJ. (SAC 2.)
Plaintiff alleges that he and Smith were consequently added to a “Keep Sep[a]rate” list as a result
of their fight. (Id. at 3.) Plaintiff was also placed in “Protective Custody” and relocated to the 3West housing unit. (Id. at 2–3.) Plaintiff alleges that he was put in protective custody because
he had been involved in three fights over the course of 10 days and because Smith was
determined to be “a danger to Plaintiff because of undisclosed reasons.” (Id. at 2.) However,
according to Plaintiff, Smith “was determined to assault Plaintiff and formulated a plot” to obtain
protective custody status himself. (Id. at 3.) On October 12, 2017, Plaintiff was taken to the
“old jail facility clinic” for a medical evaluation. (Id.) While Plaintiff was waiting to be seen,
Monteleon allegedly “placed . . . Smith into the same holding cell” as Plaintiff. (Id.) Smith
began to attack Plaintiff, which resulted in “several physical injuries.” (Id.)
According to Plaintiff, the Westchester County Department of Corrections (“WCDOC”)
prints a daily “keep sep[a]rate list,” and Defendant Monteleon “was in possession” of that list for
1
Smith is not a party in this Action.
2
The Court cites to the ECF page numbers stamped at the top right corner of the SAC.
2
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that day. (Id.) Plaintiff alleges that Monteleon “grossly failed to review” the keep separate list,
which led to Smith attacking Plaintiff. (Id.) Plaintiff further claims, upon information and
belief, that the WCDOC has a “pattern, policy[,] and/or custom of routinely failing to review the
keep sep[a]rate list prior to placing inmates into holding cells with other inmates.” (Id. at 4.)
According to Plaintiff, there are “similar civil actions alleging [the existence of this] pattern.”
(Id.)
As a result of the attack, Plaintiff allegedly “suffered pain, soreness[,] and swelling.” (Id.
at 7.) Plaintiff claims violations of his constitutional rights under the Eighth and Fourteenth
Amendments. (Id. at 4.) Plaintiff seeks $50,000 in compensatory damages and $200,000 in
punitive damages. (Id. at 7.)
B. Procedural Background
Plaintiff filed his Complaint and request to proceed in forma pauperis (“IFP”) on August
2, 2018. (See Dkt. No. 1; Compl. (Dkt. No. 2).) Plaintiff’s IFP request was granted on August
27, 2018. (Dkt. No. 4.) Plaintiff initially included the WCDOC as a named Defendant, but the
Court dismissed this claim pursuant to 28 U.S.C. § 1915(e)(2)(B)(iii) and added the County as a
Defendant instead. (See Order of Service (Dkt. No. 6).) On October 11, 2018, Plaintiff filed his
Amended Complaint. (See Am. Compl. (Dkt. No. 10).) Defendants filed a Motion To Dismiss
the Amended Complaint (the “First Motion”) and accompanying documents on May 10, 2019.
(See Not. of First Mot. (Dkt. No. 21).)
On December 16, 2019, Plaintiff filed the SAC. (See SAC.) Pursuant to an Order from
the Court, Defendants withdrew the First Motion, (see Dkt. Nos. 28–30), and submitted the
instant Motion on February 7, 2020, (see Not. of Mot.; see also Decl. of Sean T. Carey, Esq. in
Supp. of Mot. (“Carey Decl.”); Defs.’ Mem. of Law in Supp. of Mot. (“Defs.’ Mem.”) (Dkt.
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Nos. 32–33)). Although Plaintiff’s request for additional time to respond to the Motion, (see
Dkt. No. 35), was granted, (see Dkt. No. 36), Plaintiff did not meet his new response deadline of
April 5, 2020, (see Dkt. No. 37). Upon Defendants’ request, the Court deemed the Motion fully
submitted on April 11, 2020. (See Dkt. Nos. 37–38.)
II. Discussion
A. Standard of Review
The Supreme Court has held that, while 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)
(citations, quotation marks, and alterations 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. (quotation marks and alteration 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 need 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 or her] claim[ ] 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
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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
hypertechnical, 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.”).
In considering a motion to dismiss, the Court “must accept as true all of the factual
allegations contained in the complaint.” Erickson v. Pardus, 551 U.S. 89, 94 (2007) (per
curiam); 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 . . . .” (quotation marks 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)). Where, as here, a plaintiff proceeds pro se, the “complaint[ ] must be construed liberally
and interpreted to raise the strongest arguments that [it] suggest[s].” Sykes v. Bank of Am., 723
F.3d 399, 403 (2d Cir. 2013) (per curiam) (quotation marks omitted). However, “the liberal
treatment afforded to pro se litigants does not exempt a pro se party from compliance with
relevant rules of procedural and substantive law.” Bell v. Jendell, 980 F. Supp. 2d 555, 559
(S.D.N.Y. 2013) (quotation marks omitted); see also Caidor v. Onondaga County, 517 F.3d 601,
605 (2d Cir. 2008) (“[P]ro se litigants generally are required to inform themselves regarding
procedural rules and to comply with them.” (italics and quotation marks omitted)).
Generally, “[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
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may be taken.” Leonard F. v. Isr. Disc. Bank of N.Y., 199 F.3d 99, 107 (2d Cir. 1999) (quotation
marks and citation omitted). When a plaintiff proceeds pro se, however, the Court may consider
“materials outside the complaint 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) (quotation marks omitted).
B. Analysis
Liberally construed, the SAC alleges violations under the Fourteenth Amendment against
all Defendants: against Monteleon, Plaintiff alleges a failure-to-protect claim; against Lopez,
Plaintiff appears to allege a claim based on supervisory liability; and against the County, Plaintiff
appears to allege a municipal liability claim, pursuant to Monell.3, 4 Defendants argue that no
claim is plausibly alleged. (See generally Defs.’ Mem.)
1. Personal Involvement
Defendants argue that any claim against Lopez fails because the SAC does not allege that
Lopez had any personal involvement in the underlying incident. (See id. at 8.)
“It is well settled that, in order to establish a defendant’s individual liability in a suit
brought under § 1983, a plaintiff must show . . . the defendant’s personal involvement in the
3
The SAC also refers to the WCDOC as a Defendant. (See SAC 5.) As the Court
previously indicated, the WCDOC is no longer a party to this Action, and any claims against the
WCDOC as such have already been dismissed. (See Order of Service.)
4
Plaintiff was a pretrial detainee at the time of the incident, so the Fourteenth
Amendment, rather than the Eighth Amendment, applies. (See Carey Decl. Ex. E (“Cert. of
Disposition”) (Dkt. No. 32-5).) The Court may take judicial notice of the Certificate of
Disposition in assessing Plaintiff’s legal detainment status even while resolving a motion to
dismiss. See Torres v. Vasta, No. 18-CV-8706, 2019 WL 4640247, at *6 n.6 (S.D.N.Y. Sept. 24,
2019) (“The Court may take judicial notice of . . . Plaintiff’s . . . Certificate of Disposition, not
for [its] truth but for [its] legal effect. (collecting cases)). Here, the Certificate of Disposition
confirms that Plaintiff was arrested on June 29, 2017 and convicted on February 15, 2018,
making the underlying October 12, 2017 incident one that occurred while Plaintiff was a pretrial
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alleged constitutional deprivation.” Grullon v. City of New Haven, 720 F.3d 133, 138 (2d Cir.
2013). To establish personal involvement, a plaintiff must show that:
(1) the defendant participated directly in the alleged constitutional violation, (2) the
defendant, after being informed of the violation through a report or appeal, failed
to remedy the wrong, (3) the defendant created a policy or custom under which
unconstitutional practices occurred, or allowed the continuance of such a policy or
custom, (4) the defendant was grossly negligent in supervising subordinates who
committed the wrongful acts, or (5) the defendant exhibited deliberate indifference
to the rights of inmates by failing to act on information indicating that
unconstitutional acts were occurring.
Id. at 139 (citation and emphases omitted). In other words, “[b]ecause vicarious liability is
inapplicable to . . . § 1983 suits, a plaintiff must plead that each Government-official defendant,
through the official’s own individual actions, has violated the Constitution.” Iqbal, 556 U.S. at
676. Therefore, Plaintiff must plausibly allege that Defendants’ actions fall into one of the five
categories identified above. See Lebron v. Mrzyglod, No. 14-CV-10290, 2017 WL 365493, at *4
(S.D.N.Y. Jan. 24, 2017) (holding that the five categories “still control[] with respect to claims
that do not require a showing of discriminatory intent” post-Iqbal).
Plaintiff has failed to plausibly allege personal involvement as to Defendant Lopez.
Lopez, whose name appears once in the SAC, (see generally SAC), is described only as a
“Supervisor[],” and is not alleged to have committed any specific act precipitating or condoning
either Monteleon’s alleged constitutional violation or the County’s purported custom, (id. at 5).
Plaintiff conclusorily asserts that Lopez “was grossly negligent in supervising subordinates who
detainee. (See Cert. of Disposition.) Therefore, the Fourteenth Amendment’s protections apply.
See Tutora v. Correct Care Sols., LLC, No. 17-CV-9169, 2019 WL 1383646, at *4 (S.D.N.Y.
Mar. 27, 2019) (“Because Plaintiff was a pretrial detainee at the time of the allegations, his
deliberate-indifference claims are analyzed under the Due Process Clause of the Fourteenth
Amendment.” (citation omitted)); see also Boykin v. Moreno, No. 17-CV-6869, 2020 WL
882195, at *6 (S.D.N.Y. Feb. 24, 2020) (same, specifically as to a failure-to-protect claim),
appeals filed, No. 20-1626 (2d Cir. May 21, 2020), No. 20-1959 (2d Cir. June 22, 2020).
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committed wrongful acts,” but provides no factual assertions regarding any of his purported acts
or omissions. (Id.)
A supervisor does not become responsible for the actions of those under their command
merely because of their supervisory role. See Iqbal, 556 U.S. at 676 (“Because vicarious liability
is inapplicable to . . . § 1983 suits, a plaintiff must plead that each Government-official
defendant, through the official’s own individual actions, has violated the Constitution.”); see also
Rivera v. Westchester County, No. 18-CV-8354, 2019 WL 3958425, at *3 (S.D.N.Y. Aug. 22,
2019) (“[T]he bare fact that . . . [d]efendants appear to hold supervisory roles [does not] change
the analysis . . . . [M]ere linkage to the unlawful conduct through the chain of command . . . is
insufficient to show . . . personal involvement . . . .” (citations and quotation marks omitted)).
Without any factual allegations tying Lopez to the alleged attack, Plaintiff’s allegations are
purely conclusory and cannot survive the instant Motion. See Smith v. Westchester County, No.
19-CV-1283, 2019 WL 5816120, at *4 (S.D.N.Y. Nov. 7, 2019) (holding that the “recitation of .
. . supervisory titles” was too conclusory to establish personal involvement without “facts
suggesting that any [ d]efendant[] participated directly” in the underlying constitutional violation
(citation, footnote, and quotation marks omitted)); Johnson v. Schiff, No. 17-CV-8000, 2019 WL
4688542, at *9 (S.D.N.Y. Sept. 26, 2019) (finding that a plaintiff’s attempt to establish the
personal involvement of a supervisor failed without “any non-conclusory facts suggesting . . . an
unconstitutional policy or custom, . . . gross[] negligen[ce] in supervising subordinates, or . . .
deliberate indifference to [the p]laintiff’s rights” (citation omitted)); Dawson v. Westchester
County, No. 18-CV-7790, 2019 WL 3408899, at *6 (S.D.N.Y. July 29, 2019) (dismissing claims
against supervisors for lack of pleading any facts regarding “what the individual [supervisory]
defendants knew about the . . . problem or when they knew about it” (citation, alterations,
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emphases, and quotation marks omitted)); Falls v. Pitt, No. 16-CV-8863, 2018 WL 3768036, at
*6 (S.D.N.Y. Aug. 8, 2018) (holding that personal involvement was not established where the
plaintiff failed to allege that the supervisory defendants were “present” for, “participated
directly” in, or “somehow permitted” the alleged violation (citation omitted)). Accordingly,
Plaintiff’s claims against Lopez are dismissed.
2. Deliberate Indifference Claim
“[A]n inmate’s claim that prison officials failed, as a result of their deliberate
indifference, to protect [the inmate] from the violent actions of other inmates may state a viable
§ 1983 cause of action.” Hendricks v. Coughlin, 942 F.2d 109, 113 (2d Cir. 1991) (citations
omitted); Price v. Oropallo, No. 13-CV-563, 2014 WL 4146276, at *8 (N.D.N.Y. Aug. 19,
2014) (“Prison officials are liable . . . for harm incurred by an inmate if they act with deliberate
indifference to the inmate’s safety.” (citation omitted)); Fair v. Weiburg, No. 02-CV-9218, 2006
WL 2801999, at *5 (S.D.N.Y. Sept. 28, 2006) (“Failure-to-protect claims are treated as
challenges to conditions of confinement and, accordingly, Plaintiff must demonstrate deliberate
indifference.” (citation omitted)).
Because Plaintiff was a pretrial detainee at the time of the allegations, (see generally
SAC; Cert. of Disposition), his deliberate indifference claims are analyzed under the Due
Process Clause of the Fourteenth Amendment, see Cuoco v. Moritsugu, 222 F.3d 99, 106 (2d
Cir. 2000) (“[Because Plaintiff] was in pre-trial detention at the time of the alleged incidents . . .
[t]he district court correctly concluded that [Plaintiff’s] claims arise under the Due Process
Clause . . . .” (citation omitted)). Deliberate indifference claims under the Fourteenth
Amendment are analyzed somewhat differently than the same claims under the Eighth
Amendment, which applies to inmates who have been convicted and sentenced. See Darnell v.
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Pineiro, 849 F.3d 17, 35 (2d Cir. 2017) (explaining the different mens rea requirements for
Eighth Amendment and Fourteenth Amendment deliberate indifference claims). To be sure, the
overarching framework remains the same. Under both the Eighth and Fourteenth Amendments,
to state a deliberate indifference claim an inmate must plausibly allege (1) “that he suffered a
sufficiently serious constitutional deprivation,” and (2) that the defendant “acted with deliberate
indifference.” Feliciano v. Anderson, No. 15-CV-4106, 2017 WL 1189747, at *8 (S.D.N.Y.
Mar. 30, 2017) (collecting cases).
The first element “is evaluated the same way under both the Eighth Amendment and
Fourteenth Amendment.” Ackridge v. Aramark Corr. Food Servs., No. 16-CV-6301, 2018 WL
1626175, at *19 n.19 (S.D.N.Y. Mar. 30, 2018) (citing Darnell, 849 F.3d at 30). This
requirement is “objective”: the inmate must show that the “the alleged deprivation” is
“sufficiently serious.” Spavone v. N.Y. State Dep’t of Corr. Servs., 719 F.3d 127, 138 (2d Cir.
2013) (citation and quotation marks omitted). In other words, the inmate must show that he was
“incarcerated under conditions posing a substantial risk of serious harm.” Blandon v. Capra, No.
17-CV-65, 2017 WL 5624276, at *7 (S.D.N.Y. Nov. 20, 2017) (quoting Hayes v. N.Y.C. Dep’t of
Corrs., 84 F.3d 614, 620 (2d Cir. 1996)).
The second element “applies differently to claims under the Eighth Amendment and the
Fourteenth Amendment.” Howard v. Brown, No. 15-CV-9930, 2018 WL 3611986, at *4
(S.D.N.Y. July 26, 2018) (citing Darnell, 849 F.3d at 34–35). While the Eighth Amendment
imposes a subjective standard—that the prison official “know[] of and disregard[] an excessive
risk to inmate health or safety,” Darnell, 849 F.3d at 32 (citation and quotation marks omitted)—
the Fourteenth Amendment, applicable here, imposes an objective standard. That is, the prison
official need only “recklessly fail[] to act with reasonable care to mitigate the risk that the
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condition posed to the pretrial detainee even though the defendant-official knew, or should have
known, that the condition posed an excessive risk to health or safety.” Id. at 35. However,
“[d]espite the slightly lower standard” applicable to pretrial detainees, “which is akin to objective
recklessness, any § 1983 claim or a violation of due process requires proof of a mens rea greater
than mere negligence.” Miller v. County of Nassau, No. 16-CV-5843, 2018 WL 1597401, at *3
(E.D.N.Y. Mar. 31, 2018) (some citations and quotation marks omitted) (ultimately quoting
Darnell, 849 F.3d at 36).
Generally, “[i]n assessing whether the risk of an inmate’s violence against other inmates
is ‘sufficiently serious’ to trigger constitutional protection, the focus of inquiry must be, not the
extent of the physical injuries sustained in an attack, but rather the existence of a ‘substantial risk
of serious harm.’” Heisler v. Kralik, 981 F. Supp. 830, 837 (S.D.N.Y. 1997) (quoting Wilson v.
Seiter, 501 U.S. 294, 298 (1991)), aff’d, 164 F.3d 618 (2d Cir. 1998). Courts may find a
substantial risk of serious harm “where there is evidence of a previous altercation between a
plaintiff and an attacker, coupled with a complaint by [the] plaintiff regarding the altercation or a
request by [the] plaintiff to be separated from the attacker.” Rennalls v. Alfredo, No. 12-CV5300, 2015 WL 5730332, at *4 (S.D.N.Y. Sept. 30, 2015) (citation, alteration, and quotation
marks omitted). “District courts in the Second Circuit have pointed to the existence, or lack
thereof, of no-contact orders as indications that a substantial risk of harm may exist.” Mays v.
Falu, No. 18-CV-6145, 2019 WL 6619330, at *8 (S.D.N.Y. Dec. 5, 2019) (collecting cases); see
also Smith v. County of Westchester, No. 17-CV-9858, 2019 WL 3006407, at *3 (S.D.N.Y. July
10, 2019) (finding that alleging the existence of a WCDOC “keep-separate” order plausibly
established a “substantial risk of serious harm to plaintiff’s safety” where that order was put in
place as a response to a fistfight); Andrews v. Gates, No. 17-CV-1233, 2019 WL 2930063, at *6
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(D. Conn. July 8, 2019) (finding that the failure to maintain a keep separate order created an
“opportunity to assault” plaintiff which posed an “excessive risk to [the plaintiff’s] health and
safety” and “satisfie[d] the objective component of the deliberate indifference standard”).
Here, Plaintiff adequately alleges that he was exposed to a substantial risk of serious
harm. Plaintiff alleges that WCDOC’s separation order between Plaintiff and Smith resulted
from a prior fight, that Monteleon placed Plaintiff in a holding cell with Smith despite the
existence of a keep separate order, and that placement in that cell “result[ed]” in an “attack” that
caused Plaintiff “several physical injuries.” (SAC 3.) Indeed, Defendants do not appear to
contest this. (See generally Defs.’ Mem.) Therefore, the objective component of Plaintiff’s
failure-to-protect claim has been plausibly alleged.
Defendants do argue, however, that Plaintiff has failed to establish the subjective element
of the offense because Plaintiff’s allegations raise an inference of, at most, negligence, which is
insufficient to establish a constitutional violation. (See Defs.’ Mem. 6–7.) The Court agrees.
Plaintiff alleges only that Monteleon “was in possession” of the keep separate list that
purportedly noted that Plaintiff and Smith should not be placed in the same holding cell. (See
SAC 3.) But this vague allegation fails to plausibly raise an inference that Monteleon “recklessly
failed to act with reasonable care” or even that he “knew, or should have known, that the
condition posed an excessive risk to health or safety.” Darnell, 849 F.3d at 35. It is unclear
what Plaintiff means by “possession.” There are no allegations, for instance, that Monteleon
actually read the list, that he knew that he should have checked the list, or that he had any other
outside reason to know about Plaintiff and Smith’s violent history. (See generally SAC.)
Plaintiff’s repeated statements that Monteleon’s failure to review the keep separate list was
“negligent,” (see generally SAC), further hurt his claim because “any § 1983 claim . . . requires
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proof of a mens rea greater than mere negligence,” Miller, 2018 WL 1597401, at *3 (citation,
alteration, and quotation marks omitted); see also Johnson, 2019 WL 4688542, at *12 (same).
Accordingly, Plaintiff’s deliberate indifference claim against Monteleon is dismissed.
See Boykin, 2020 WL 882195, at *7 (holding that a plaintiff’s mere assertion that “[the
d]efendants behaved recklessly” was conclusory since it was without any specific factual
allegations that could “plausibly allege . . . mens rea,” and because plaintiff alleged “negligence”
instead (citations and quotation marks omitted)); Johnson, 2019 WL 4688542, at *17 (holding
that plaintiff failed to state a failure-to-protect claim where a correction officer allegedly failed to
separate two arguing inmates because the plaintiff did “not allege that [the officer] knew that the
other inmate posed a specific and substantial risk to [the p]laintiff’s safety”); Smolen v. Wesley,
No. 16-CV-2417, 2019 WL 4727311, at *11 (S.D.N.Y. Sept. 25, 2019) (dismissing a failure-toprotect claim where the plaintiff failed to allege that the correction officer specifically knew of a
risk to the plaintiff); Franzese v. City of New York, No. 17-CV-3020, 2018 WL 5924354, at *3
(S.D.N.Y. Nov. 13, 2018) (dismissing failure-to-protect claim where the plaintiff failed to allege
that the defendant “was aware, or had any reason to know that [the p]laintiff’s safety was at
risk”); cf. Mays, 2019 WL 6619330, at *9 (finding that the mens rea element was satisfied in a
separation order context where the defendant allegedly knew about the separation order as it
pertained to the two separated inmates).
3. Municipal Liability Claim
Defendants argue that Plaintiff has failed to state a municipal liability claim against the
County. (See Defs.’ Mem. 8–10.) “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 v. Dep’t of Soc. Servs. of City of N. Y., 436 U.S. 658, 691 (1978); see
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also Pembaur v. City of Cincinnati, 475 U.S. 469, 478 (1986) (holding that a municipality may
not be liable under § 1983 “by application of the doctrine of respondeat superior” (citation and
italics omitted)). That is, “municipalities may only be held liable when the municipality itself
deprives an individual of a constitutional right.” Newton v. City of New York, 566 F. Supp. 2d
256, 270 (S.D.N.Y. 2008). Therefore, “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) (citation omitted). The fifth element reflects the
notion that a Monell defendant “may not be held liable under § 1983 solely because it employs a
tortfeasor.” Bd. of Cty. Comm’rs of Bryan Cty., Okla. v. Brown, 520 U.S. 397, 403 (1997). A
plaintiff may satisfy the fifth element 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).
Here, Plaintiff asserts that “WCDOC correctional officers have a pattern, policy[,] and/or
custom of routinely failing to review the keep sep[a]rate list prior to placing inmates into holding
cells with other inmates,” based “in part” on other “similar civil actions” filed on these issues.
(SAC 4.)5 The SAC also refers to the County “fail[ing] to intervene” despite “present and prior
5
Plaintiff does not provide any specific examples of other “similar civil actions.” (SAC
4.)
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notice” of this practice, and the County “fail[ing] to properly train and supervise its Correctional
Officers as to following protocol.” (Id.)
To establish liability under the third prong of Monell requires showing the presence of a
“consistent and widespread” practice. Brandon, 705 F. Supp. 2d at 276 (citations omitted).
Plaintiff fails, however, to plead any particular facts beyond this one incident, which dooms
Plaintiff’s claim because “a custom or policy cannot be shown by pointing to a single instance of
unconstitutional conduct by a mere employee of the municipality.” Boykin, 2020 WL 882195, at
*5 (citation and quotation marks omitted); see also Cox v. City of New Rochelle, No. 17-CV8193, 2019 WL 3778735, at *8 (S.D.N.Y. Aug. 12, 2019) (dismissing Monell claim where,
“apart from the incident giving rise to this case . . . [the] [p]laintiff fail[ed] to allege facts
plausibly suggesting any other similar example of [the municipality’s] failure to supervise or
train officers” (citation omitted)); Smith, 2019 WL 3006407, at *4 (dismissing a Monell claim for
insufficient enforcement of keep separate orders because a “single alleged violation of . . . keepseparate protocol does not support [a] claim that the [c]ounty maintained or countenanced a
custom or policy that caused [the] plaintiff’s alleged injuries”); Johnson v. Paul, No. 17-CV4654, 2018 WL 2305657, at *4 (S.D.N.Y. May 21, 2018) (finding that no Monell claim had been
made out because “a single incident . . . especially if it involved only actors below the policy
making level, does not suffice to show a municipal policy” (omission in original) (quotation
marks omitted) (quoting DeCarlo v. Fry, 141 F.3d 56, 61 (2d Cir. 1998))). Moreover, “mere
citations to lawsuits, even if they did involve comparable conduct, do not alone establish a
custom or practice that is widespread and persistent, particularly if the lawsuits did not result in
adjudication of liability.” Bethune v. Westchester County, No. 18-CV-3500, 2020 WL 1032508,
at *5 (S.D.N.Y. Mar. 2, 2020) (citations omitted). Plaintiff does not cite any particular civil
15
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actions, does not plead factual matter suggesting that those civil actions involved similar conduct
or were filed against the same actors, and does not allege that the actions reached conclusions
consistent with his allegations. Accordingly, a “consistent and widespread” custom or practice
has not been pled. Brandon, 705 F. Supp. 2d at 276 (citations omitted).
Plaintiff also fails to plausibly allege a failure-to-train claim. To state a claim for
municipal liability based on failure to train, Plaintiff must allege facts which support an inference
that the County failed to train its employees, that it did so with deliberate indifference, and that
the failure to train caused his constitutional injuries. See Treadwell v. County of Putnam, No. 14CV-10137, 2016 WL 1268279, at *4 (S.D.N.Y. Mar. 30, 2016) (“To establish Monell liability
premised on a failure to supervise, a plaintiff must plead that (1) there was a pattern of
allegations of or complaints about, or a pattern of actual, similar unconstitutional activity, and (2)
the municipality consistently failed to investigate those allegations.” (citation omitted)). Further,
“a plaintiff must plausibly allege a specific deficiency in the municipality’s training.” Tieman v.
City of Newburgh, No. 13-CV-4178, 2015 WL 1379652, at *22 (S.D.N.Y. Mar. 26, 2015). In
particular, a failure to train constitutes a policy or custom that is actionable under § 1983 only
where “in light of the duties assigned to specific officers or employees the need for more or
different training is so obvious, and the inadequacy so likely to result in the violation of
constitutional rights, that the policymakers . . . can reasonably be said to have been deliberately
indifferent to the need.” City of Canton, Ohio v. Harris, 489 U.S. 378, 390 (1989) (footnote
omitted).
Plaintiff’s general claim that the County failed to train and supervise its staff is a
“boilerplate assertion[ ]” and is insufficient, without more, to state a Monell claim. Araujo v.
City of New York, No. 08-CV-3715, 2010 WL 1049583, at *9 (E.D.N.Y. Mar. 19, 2010) (citation
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and quotation marks omitted) (dismissing failure-to-train claim where a plaintiff alleged “no
facts to indicate any deliberate choice by municipal policymakers to engage in unconstitutional
conduct”). Therefore, this claim is dismissed. See Acosta v. City of New York, No. 11-CV-856,
2012 WL 1506954, at *11 (S.D.N.Y. Apr. 26, 2012) (dismissing Monell claim where the
plaintiff merely alleged that the city “failed to train its police officers,” because the plaintiff
“failed to set forth factual allegations that would support a plausible inference that the [c]ity’s
‘policies’ or ‘customs’ caused . . . [the ]alleged violations of [the] plaintiff’s rights”); see also
Rivera, 2019 WL 3958425, at *5 (dismissing Monell claim where the “[p]laintiff . . . cited no
specific deficiency in [the defendant’s] training or supervision protocols”); Dawson, 2019 WL
3408899, at *5 (same); Quick v. Westchester County, No. 18-CV-243, 2019 WL 1083784, at *5
(S.D.N.Y. Mar. 7, 2019) (dismissing Monell claim where the plaintiff alleged failure to supervise
kitchen workers because the complaint was “devoid of any detailed factual allegations” that
WCDOC lacked “a relevant training or supervisory program” or that WCDOC “was otherwise
deliberately indifferent to food preparation problems”); Triano v. Town of Harrison, NY, 895 F.
Supp. 2d 526, 539–40 (S.D.N.Y. 2012) (dismissing Monell claim where the plaintiff “merely
alleged that the [t]own failed to train its employees, without providing any supporting factual
detail about alleged deficiencies in the training program”).
It is true that a plaintiff may establish deliberate indifference for a failure-to-supervise
claim under the fourth prong by showing “that the need for more or better supervision to protect
against constitutional violations was obvious,” from the fact that there “were repeated complaints
of civil rights violations,” and that “the complaints [were] followed by no meaningful attempt on
the part of the municipality to investigate or to forestall further incidents.” Shepherd v. Powers,
No. 11-CV-6860, 2012 WL 4477241, at *9 (S.D.N.Y. Sept. 27, 2012) (citation and quotation
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marks omitted); see also Lawrence v. City of Rochester, No. 09-CV-6078, 2015 WL 510048, at
*7 (W.D.N.Y. Feb. 6, 2015) (“Deliberate indifference may be inferred from the failure to train or
supervise based on proof of repeated complaints of civil rights violations that are followed by no
meaningful attempt on the part of the municipality to investigate or to forestall.” (citation and
quotation marks omitted)); Aretakis v. Durivage, No. 07-CV-1273, 2009 WL 249781, at *29
(N.D.N.Y. Feb. 3, 2009) (same). However, even in those cases, the plaintiffs were able to name
and detail the allegations in other lawsuits and grievances. See, e.g., Tieman, 2015 WL 1379652,
at *19–21 (holding that the plaintiff sufficiently alleged the need for better training or
supervision where the plaintiff listed and detailed nine other complaints raising similar
allegations against the same defendants); McCants v. City of Newburgh, No. 14-CV-556, 2014
WL 6645987, at *4–5 (S.D.N.Y. Nov. 21, 2014) (holding that the plaintiff sufficiently alleged a
need for better training or supervision where the plaintiff listed and detailed seventeen other
complaints over a seven-year period raising similar allegations against the same defendants);
Farrow v. City of Syracuse, No. 12-CV-1401, 2014 WL 1311903, at *8 n.7 (N.D.N.Y. Mar. 31,
2014) (stating that the fact that “at least 15 excessive force complaints ha[d] been filed against
the [c]ity in the past 5 years” would be sufficient to surpass the motion-to-dismiss stage).
Because, as the Court noted above, Plaintiff provides no details of the other “similar civil
actions” he claims exist, (SAC 4), Plaintiff’s Monell claim cannot survive the instant Motion on
this ground, see Rivera, 2019 WL 3958425, at *5 (dismissing Monell claim where the plaintiff
did allege that “numerous similar lawsuits, grievances, and complaints” were filed against the
defendant but “fail[ed] to provide any factual details regarding these other lawsuits and
grievances”); Dawson, 2019 WL 3408899, at *5 (dismissing Monell claim based on an allegation
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that “[d]efendants knew about . . . poor food conditions because of other complaints, grievances,
and lawsuits” as “conclusory” without additional details).
Additionally, Plaintiff’s allegation that the County “fails to properly train and supervise
its Correctional Officers as to following protocol,” (SAC 4 (emphasis added)), belies Plaintiff’s
argument that “an official policy of the municipality caused the constitutional injury,” Roe, 542
F.3d at 36 (citation omitted). Plaintiff acknowledges, and indeed asserts, that there was a policy
at WCDOC for officers like Monteleon to check the keep separate list, and that Monteleon’s
failure to do so caused his injury. (See generally SAC.) Plaintiff is therefore alleging “not that
[County] policies were improper, but that [County] personnel failed to follow those policies”;
therefore, “any [purported] violation of Plaintiff’s constitutional rights was caused by the failure
to follow a policy, not the policy itself.” Thomas v. DuBois, No. 19-CV-7533, 2020 WL
2092426, at *4 (S.D.N.Y. Apr. 30, 2020) (emphasis in original) (citations omitted); see also
Tyrrell v. Seaford Union Free Sch. Dist., 792 F. Supp. 2d 601, 632 (E.D.N.Y. 2011) (finding a
plaintiff’s claim was “in direct violation of Monell” where the “plaintiff’s argument [wa]s not
that [the] defendants acted pursuant to an official discriminatory policy . . . [, but r]ather . . . that
[a defendant] failed to act in accordance with [the] policy” (italics in original)).6 Since failure to
follow policy fails to state a Monell claim “[b]y definition,” Thomas, 2020 WL 2092426, at *4
(collecting cases), Plaintiff’s allegations are additionally insufficient to create liability, see id.
(dismissing Monell claim for failing to provide adequate worship services in violation of policy
as “the antithesis of a Monell claim” (italics in original) (citation and quotation marks omitted));
Paul, 2018 WL 2305657, at *4 (dismissing Monell claim where the plaintiff implied “that the
6
In any event, given that the Court has concluded that Monteleon’s actions, as pled, do
not even constitute a constitutional violation, it follows that a formal policy institutionalizing
such behavior would arguably not be unconstitutional, either.
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denial of proper Jewish meals was an exception to WCDOC policy” (emphasis in original)
(record citation omitted)); Walker v. Shaw, No. 08-CV-10043, 2010 WL 2541711, at *7
(S.D.N.Y. June 23, 2010) (explaining that an alleged failure to follow a policy “is the antithesis
of a link between policy and action”).
Accordingly, Plaintiff’s municipal liability claims are dismissed. See Jackson v.
Westchester County, No. 18-CV-7207, 2019 WL 3338020, at *4 (S.D.N.Y. July 25, 2019)
(dismissing Monell claim where the plaintiff failed to “allege the existence of any policy, any
actions taken or decisions made by any . . . policymaking officials, any systemic failures to train
or supervise, or any practices so widespread that they practically have the force of law” and
failed to “provide any factual details regarding . . . other [purported] lawsuits and grievances” on
similar issues (record citations omitted) (collecting cases)); see also McKenzie v. City of Mount
Vernon, No. 18-CV-603, 2018 WL 6831157, at *7 (S.D.N.Y. Dec. 28, 2018) (dismissing Monell
claim where the plaintiff did “not allege any facts suggesting a policy or custom that led to [the]
alleged” constitutional deprivation).
4. State Claims
To the extent Plaintiff seeks to allege a state law claim of negligence against Defendants,
it fails. As Defendants point out, (see Defs.’ Mem. 10), Plaintiff has failed to affirmatively plead
that he served a notice of claim. Under New York law, “as a condition precedent to bringing a
claim against a municipality, a plaintiff must file a notice of claim within 90 days after her claim
accrues.” Russell v. Westchester Cmty. Coll., No. 16-CV-1712, 2017 WL 4326545, at *5
(S.D.N.Y. Sept. 27, 2017) (citing N.Y. Gen. Mun. Law § 50-e(1)(a)); see also N.Y. Gen. Mun.
Law § 50-k(6) (“No action . . . shall be prosecuted or maintained against the city . . . or an
employee unless notice of claim shall have been made and served upon the city . . . .”); Olsen v.
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County of Nassau, No. 05-CV-3623, 2008 WL 4838705, at *1 (E.D.N.Y. Nov. 4, 2008) (“As a
‘condition precedent’ to commencing a tort action against New York municipalities, or any of
their officers, agents, or employees, New York General Municipal Law § 50-e requires plaintiffs
to file a notice of claim within ninety days after the claim arises.” (citation omitted)). Moreover,
“in 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) (citations and emphasis omitted).
“Federal courts do not have jurisdiction to hear complaints from plaintiffs who have failed to
comply with the notice of claim requirement, or to grant permission to file a late notice.” Gibson
v. Comm’r of Mental Health, No. 04-CV-4350, 2006 WL 1234971, at *5 (S.D.N.Y. May 8,
2006) (footnote omitted). Further, “the burden is on [the p]laintiff to demonstrate compliance
with the notice of claim requirements.” Peritz v. Nassau Cty. Bd. of Coop. Educ. Servs., No. 16CV-5478, 2019 WL 2410816, at *4 (E.D.N.Y. June 7, 2019) (citations omitted); see also Naples
v. Stefanelli, 972 F. Supp. 2d 373, 390 (E.D.N.Y. 2013) (“To survive a motion to dismiss, a
plaintiff must affirmatively plead that a notice of claim was filed.” (citing, inter alia, N.Y. Gen.
Mun. Law § 50-i(1)(b))). “The notice of claim requirements are strictly construed, and a
plaintiff’s ‘failure to comply with the mandatory New York statutory notice-of-claim
requirements generally results in dismissal of his claims.’” Smith v. City of New York, No. 04CV-3286, 2010 WL 3397683, at *15 (S.D.N.Y. Aug. 27, 2010) (citation omitted), aff’d sub
nom. Smith v. Tobon, 529 F. App’x 36 (2d Cir. 2013).
Because Plaintiff failed to affirmatively plead that he filed a notice of claim with respect
to any state law claims, those claims are dismissed. See El v. City of New York, No. 14-CV-9055,
2015 WL 1873099, at *8 (S.D.N.Y. Apr. 23, 2015) (“Absent a showing of such a notice of
claim, the complaint may be dismissed for failure to state a cause of action.” (citation and
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quotation marks omitted)), appeal dismissed, No. 15-1413 (2d Cir. Aug. 4, 2015); Naples, 972 F.
Supp. 2d at 390 (dismissing state law claims against municipality where “the [a]mended
[c]omplaint is void of any allegation that a notice of claim was filed prior to the commencement
of [the] action” (footnote omitted)).
III. Conclusion
For the reasons above, Defendants’ Motion To Dismiss the SAC is granted. Plaintiff is
given one final opportunity to amend his pleading, addressing the issues raised in this Opinion &
Order. If Plaintiff wishes to file a third amended complaint, Plaintiff must do so in 30 days.
Plaintiff is advised that the newest complaint would replace, not supplement, his previous
complaints. The third amended complaint must contain all of the claims, defendants, factual
allegations, and exhibits that Plaintiff wishes the Court to consider. If Plaintiff fails to timely file
a third amended complaint, his claims may be dismissed with prejudice.
The Clerk of Court is respectfully requested to terminate the pending Motion, (see Dkt.
No. 31), and to mail a copy of this Opinion & Order to Plaintiff.
SO ORDERED.
Dated:
July 28, 2020
White Plains, New York
_______________________________
KENNETH M. KARAS
UNITED STATES DISTRICT JUDGE
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