Nowlin v. 2 jane doe female et al
Filing
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DECISION AND ORDER GRANTING in part and DENYING in part Monroe County's 25 Motion for Judgment on the Pleadings; SETTING ASIDE the 38 Report and Recommendation. Signed by William M. Skretny, Chief Judge U.S.D.C. on 8/16/2013. (MEAL)
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK
QUINTIN A. NOWLIN,
Plaintiff,
v.
DECISION AND ORDER
11-CV-712S
MONROE COUNTY, et al.,
Defendants.
1.
This action, brought by pro se Plaintiff, Quintin Nowlin, asserts claims against
several law enforcement officers, the City of Rochester, and Monroe County. Plaintiff
initially filed his complaint on August 25, 2011, asserting that his rights under the United
States and New York State Constitution were violated during the course of an arrest on
August 5, 2010. He twice amended his complaint, and the second amended complaint,
which is now the operative one, contains five counts, two of which assert claims against
Monroe County and its Sheriff, Patrick O’Flynn.
On October 5, 2012, Monroe County and Sheriff O’Flynn moved for judgment on
the pleadings (Docket No. 25),1 and shortly thereafter this Court referred the matter to
Magistrate Judge Hugh B. Scott. (Docket No. 26.) Under the authority of that referral order,
Judge Scott issued a Report and Recommendation advising this Court to grant the moving
1
Monroe County also brings this m otion on behalf of its em ployee, Officer Richard Pozzuolo. (See
Notice of Motion; Docket No. 25.) But while their m em orandum of law begins by describing all three of the
defendants as the “County Defendants,” the term “County Defendants” is not used again in their
m em orandum . And no argum ent is raised with respect to Officer Polluozo – the m oving papers are
dedicated exclusively to Sheriff O’Flynn and the County. Accordingly, this Court will consider the m otion as
argued, and Monroe County and Sheriff O’Flynn will be referred to as the “m oving Defendants.”
Defendants’ motion. Plaintiff timely objected, and that objection is currently before this
Court.
When a party timely objects to a Report and Recommendation, this Court must
review de novo those parts of the recommended disposition that were objected to. See 28
U.S.C. § 636(b)(1)(C) (“A judge of the court shall make a de novo determination of those
portions of the report or specified proposed findings or recommendations to which
objection is made”); Fed. R. Civ. P. 72(b)(3) (“The district judge must determine de novo
any part of the magistrate judge's disposition that has been properly objected to.”).
Undertaking that review, and for the following reasons, the Report and Recommendation
is set aside and Monroe County’s and Sheriff O’Flynn’s motion for judgment on the
pleadings is denied.
2.
According to the second amended complaint, Plaintiff was arrested on August
5, 2010 for soliciting a prostitute. Two disguised Jane Doe police officers allegedly
approached his vehicle and, after a brief discussion, Plaintiff told them, “Well Yall Get In
[sic].” (Sec. Am. Compl., ¶ 19; Docket No. 12.). The officers refused, but offered to perform
a sex act in exchange for money and told Plaintiff to meet them “up the block.” (Id. ¶ 20.)
Plaintiff did not respond “as [he] was not interested in a prostitute,” and drove away. (Id.
¶ 21.) But he was then quickly pulled over and arrested by a different officer. (Id. ¶ 23.) He
was handcuffed, searched, and driven in a police wagon to a Monroe County jail. (Id. ¶¶
23–24.) Once at the jail’s “booking area,” Officer Richard Pozzuolo, a defendant in this
case, presented a “plastic bag and asked [Plaintiff] if it was [his].” (Id. ¶ 26.) Plaintiff said
it was not. (Id.) Nonetheless, he was charged with “possession of the drugs,” presumably
the contents of the plastic bag. (Id. ¶ 27.)
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As relevant to this Decision, Plaintiff now claims that a custom or policy adopted by
Monroe County and Sheriff O’Flynn led to the allegedly-false drug charge.
3.
Monroe County and Sheriff O’Flynn move to be dismissed from this case
under Rule 12(c) of the Federal Rules of Civil Procedure, which provides that “[a]fter the
pleadings are closed – but early enough not to delay trial – a party may move for judgment
on the pleadings.” Courts faced with motions under Rule 12(c) apply the same standard
used to decide motions brought under Rule 12(b)(6). Patel v. Contemporary Classics of
Beverly Hills, 259 F.3d 123, 126 (2d Cir. 2001).
In turn, Rule 12(b)(6) of the Federal Rules of Civil Procedure allows dismissal of a
complaint for “failure to state a claim upon which relief can be granted.” Federal pleading
standards are generally not stringent: Rule 8 requires only a short and plain statement of
a claim. Fed. R. Civ. P. 8(a)(2). But the plain statement must “possess enough heft to
show that the pleader is entitled to relief.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 127 S.
Ct. 1955, 1966, 167 L. Ed. 2d 929 (2007).
When determining whether a complaint states a claim, the court must construe it
liberally, accept all factual allegations as true, and draw all reasonable inferences in the
plaintiff’s favor. ATSI Commc’ns, Inc. v. Shaar Fund, Ltd., 493 F.3d 87, 98 (2d Cir. 2007).
Legal conclusions, however, are not afforded the same presumption of truthfulness. See
Ashcroft v. Iqbal, 556 U.S. 662, 677, 129 S. Ct. 1937, 1949, 173 L. Ed. 2d 868 (2009)
(“The tenet that a court must accept as true all of the allegations contained in a complaint
is inapplicable to legal conclusions.”).
“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.’” Id. at 678 (quoting
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Twombly, 550 U.S. at 570). Labels, conclusions, or a “formulaic recitation of the elements
of a cause of action will not do.” Twombly, 550 U.S. at 555. Facial plausibility exists when
the facts alleged allow for a reasonable inference that the defendant is liable for the
misconduct charged. Iqbal, 556 U.S. at 678. The plausibility standard is not, however, a
probability requirement: the pleading must show, not merely allege, that the pleader is
entitled to relief. Id. at 678; Fed. R. Civ. P. 8(a)(2). Well-pleaded allegations must nudge
the claim “across the line from conceivable to plausible.” Twombly, 550 U.S. at 570.
4.
It is well settled that a municipality or a supervisor cannot be held liable on
the theory of respondeat superior or simply because it employs a tort feasor. Monell v.
Dep’t of Soc. Servs of City of New York, 436 U.S. 658, 98 S. Ct. 2018, 56 L. Ed. 2d 611
(1978). In other words, to impose liability on a municipality or a supervisory defendant, it
(or he) must be the moving force behind the injury alleged. Board of County Com’rs Bryan
County, Okl. v. Brown, 520 U.S. 397, 117 S. Ct. 1382, 137 L. Ed. 2d 626 (1997); see Jeffes
v. Barnes, 208 F.3d 49, 57 (2d Cir. 2000) (quoting Monell, 436 U.S. at 690–91))
(municipality may be “held liable if the conduct that caused the unconstitutional deprivation
was . . . . adopted and promulgated by that body's officers”).
To this end, it had been previously well settled that:
[t]he personal involvement of a supervisory defendant may be
shown by evidence 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
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were occurring.
Colon v. Coughlin, 58 F.3d 865, 873 (2d Cir.1995).
But since Iqbal, some districts courts have determined that not all five of Colon's
categories remain viable. See e.g., Spear v. Hugles, No. 08CIV4026(SAS), 2009 WL
2176725, at *2 (S.D.N.Y. July 20, 2009) (“Only the first and third Colon factors have
survived the Supreme Court's decision in Iqbal” ); Bellamy v. Mount Vernon Hosp., No. 07
CIV. 1801 (SAS), 2009 WL 1835939, at *6 (S.D.N.Y. June 26, 2009) (“The Supreme
Court's decision in Iqbal v. Ashcroft abrogates several of the categories of supervisory
liability enumerated in Colon v. Coughlin.”). Other courts, including those from within this
District, disagree or express doubt about this holding. Rivera v. Wright, No.
08-CV-00157-JJM, 2012 WL 13659, at *3 (W.D.N.Y. Jan. 4, 2012) (McCarthy, M.J.);
Matusick v. Erie Cnty. Water Auth., 774 F. Supp. 2d 514, 523 (W.D.N.Y. 2011) (Arcara,
J.); D'Olimpio v. Crisafi, 718 F. Supp. 2d 340, 347 (S.D.N.Y. 2010).
5.
In any event, this Court does not need to resolve this issue because Plaintiff
alleges that Monroe County and Sheriff O’Flynn are liable under the third Colon factor (i.e.,
that the moving Defendants adopted a policy or custom under which unconstitutional
practices occurred) and all courts agree this category withstands Iqbal. To state such a
claim, a plaintiff must plead that “(1) an official policy or custom [] (2) cause[d] the plaintiff
to be subjected to (3) a denial of a constitutional right.” Batista v. Rodriguez, 702 F.2d 393,
397 (2d Cir. 1983); Hoose v. Monroe Cnty., No. 09-CV-6080T, 2012 WL 2450762, at *4
(W.D.N.Y. June 26, 2012).
The moving Defendants argue that Plaintiff has failed to allege an official policy and
custom, and thus move for dismissal. They argue, as Judge Scott found, that Plaintiff’s
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allegations are mere recitals of the elements of the cause of action, and that there are no
factual allegations regarding the alleged customs, policies, and practices that allegedly led
to the violation of Plaintiff’s rights.
But this Court cannot agree. Plaintiff does allege that Monroe County had a “custom,
policy or practice of failing to properly and adequately train his deputies in the proper
procedures for ‘booking’ detainees at the Monroe County Jail.” (Sec. Am. Compl. ¶ 43.)
And, if that were the extent of his pleadings, this Court would be inclined to agree that they
are “threadbare” and devoid of factual allegations.
But that is not the extent of his pleadings.
Plaintiff goes on to explain the policy that, allegedly, caused him to be charged with
possession of drugs that were not his. He claims that Monroe County and Sheriff O’Flynn
failed to videotape the booking area, and that their jailhouse policy does not call for officers
to “inspect, secure and search the booking area [] after the departure of one detainee and
before the arrival of the next detainee.” (Id.) These are factual allegations – not legal
conclusions – which must be accepted as true at this stage of the proceedings.
Accordingly, it cannot be said, as the moving Defendants consistently, and exclusively,
argue, that “there are no factual allegations” in the complaint. (Def.’s Br., at 5, 6, 9; Docket
No. 25-2.). Interpreting pro se Plaintiff’s second amended complaint to raise the strongest
argument it suggests, see Hill v. Curcione, 657 F.3d 116, 122 (2d Cir. 2011), and
construing it liberally while drawing all reasonable inferences in his favor, see ATSI
Communications, 493 F.3d at 98, it becomes clear that Plaintiff has sufficiently met – at
the least – the first prong of his claim. Because it is only this prong against which Monroe
County and Sheriff O’Flynn move, their motion will be denied.
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6.
Plaintiff also alleges that Monroe County violated “various New York State
Constitutional Rights.” (Sec. Am. Compl. ¶ 45.) But “there is no private right of action under
the New York State Constitution for claims that are remediable under Section 1983 or other
state laws.” Batista v. City of New York, No. 05-CV-8444(KMK), 2007 WL 2822211, at *9
(S.D.N.Y. Sept. 25, 2007) (citing Coakley v. Jaffe, 49 F. Supp. 2d 615, 628 (S.D.N.Y.1999)
abrogated on other grounds by Ginsberg v. Healey Car & Truck Leasing, Inc., 189 F.3d
268 (2d Cir.1999)); Hershey v. Goldstein, --- F. Supp. 2d ----, No. 12 CIV. 3853 PAE, 2013
WL 1431422, at *22 (S.D.N.Y. Apr. 9, 2013). Therefore, Plaintiff’s New York State
Constitution claims are dismissed as against the moving Defendants. See Batista, 2007
WL 2822211 at *9 (“Because Batista alleged federal constitutional violations under Section
1983 . . . he cannot assert a separate cause of action under the New York State
Constitution.”).
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IT HEREBY IS ORDERED, that Monroe County’s Motion for Judgment on the
Pleadings (Docket No. 25 ) is GRANTED in part and DENIED in part.
FURTHER, that the Report and Recommendation (Docket No. 38) is set aside.
SO ORDERED.
Dated: August 16, 2013
Buffalo, New York
/s/William M. Skretny
WILLIAM M. SKRETNY
Chief Judge
United States District Court
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