Lawton v. Town of Orchard Park et al

Filing 28

DECISION AND ORDER GRANTING Plaintiff's 22 Motion to Amend; DIRECTING Plaintiff to file her proposed amended complaint (Docket No. 22-2), without the redline alterations, as the amended complaint in this action; GRANTING in part and DENYING in part Defendants' 16 Motion to Dismiss. Signed by William M. Skretny, United States District Judge on 8/18/2017. (MEAL)- CLERK TO FOLLOW UP -

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK
KIMBERLY LAWTON,
Plaintiff,
v.

DECISION AND ORDER
14-CV-867S

TOWN OF ORCHARD PARK,
CHIEF OF POLICE MARK PACHOLEC,
DET. LT. PATRICK McMASTER,
DET. JOHN PAYNE,
DET. LARRY BRAND, and
JOHN DOE,
Defendants.

I. INTRODUCTION
In 2013, Thomas Meyers accused Kimberly Lawton of poisoning their infant son’s
bottles of breast milk and formula. He allegedly did so to better his chances of winning
the former couples’ bitter custody dispute, which would also allow him to avoid paying
Lawton child support. Meyers’s accusations, however, were determined to be baseless,
and Lawton was exonerated, but not before she was arrested, detained, and deprived of
custody of her infant son and two older children.
In this action, Lawton asserts a variety of state and federal claims against the Town
of Orchard Park and various law enforcement officers arising from her arrest and
detention, including claims under the First, Fourth, Fifth, and Fourteenth Amendments to
the United States Constitution. Defendants have moved to dismiss those claims and
Lawton has cross-moved to amend her complaint.

(Docket Nos. 16, 22.)

For the

reasons that follow, Defendants’ motion is granted in part and denied in part, and Lawton’s
1

motion is granted.
As an initial matter, this Court grants Lawton’s Motion to Amend her complaint.
(Docket No. 22.) District courts have broad discretion to grant a party leave to amend
its pleadings and the federal rules dictate that courts “freely give leave when justice so
requires.” Fed. R. Civ. P. 15 (a)(2); see also Foman v. Davis, 371 U.S. 178, 182, 83 S.
Ct. 227, 230, 9 L. Ed. 2d 222 (1962); Ellis v. Chao, 336 F.3d 114, 127 (2d Cir. 2003).
Given the procedural posture of this case, this Court finds it most expeditious and in the
interests of judicial economy to permit Lawton to amend her complaint as proposed
(Docket No. 22-2) and assess Defendants’ Motion to Dismiss as against that pleading.
Consequently, Lawton’s Motion to Amend (Docket No. 22) is granted and she will be
directed to file the proposed amended complaint (Docket No. 22-2), without the redline
alterations, as the amended complaint and operative pleading in this matter.
Defendants’ Motion to Dismiss is resolved below.
II. BACKGROUND
The following facts, drawn from Lawton’s amended complaint, are assumed true
for purposes of assessing Defendants= Motion to Dismiss. See ATSI Commc=ns, Inc. v.
Shaar Fund, Ltd., 493 F.3d 87, 98 (2d Cir. 2007).
Lawton and Meyers share a son named George. (Amended Complaint, ¶ 23.) It
appears that Lawton and Meyers’s romantic relationship ended before George was born.
(Amended Complaint, ¶ 24.) Given their lack of a continuing relationship, Lawton told
Meyers that she would be seeking child support from him. (Amended Complaint, ¶ 24.)
Thereafter, in early 2013, Lawton and Meyers each sought sole custody of George

2

in Family Court, with Lawton also seeking an award of child support.
Complaint, ¶¶ 25-27.)

(Amended

Family Court denied both applications for sole custody and

instead awarded Lawton a Temporary Order of Residence and granted Meyers limited
visitation.

(Amended Complaint, ¶¶ 25, 26.)

The court adjourned child support

proceedings until April 12, 2013, after Lawton challenged Meyers’s financial disclosure.
(Amended Complaint, ¶¶ 28-30.)
In the meantime, in March 2013, Lawton sent bottles of breast milk and formula
with George on one of his visits with Meyers. (Amended Complaint, ¶ 31.) Meyers
added foreign substances to the bottles, including blood-thinning medication and cleaning
products, and then sent them for testing to Avomeen Analytical Services, which is a
private chemical-analysis laboratory in Michigan. (Amended Complaint, ¶¶ 31, 32.)
On or about April 3, 2013, Avomeen Analytical Services produced an analysis of
the contents of the bottles that “identified compounds includ[ing] a blood thinning
pharmaceutical, a chlorinated aliphatic, and a number of aldehydes, indicating the
suspect formula is adulterated.” (Amended Complaint, ¶ 33.) Meyers then used this
report to file a complaint against Lawton that same day with the Child Protective Services
division of the New York State Office of Children and Family Services, in which Meyers
alleged that Lawton was poisoning or had poisoned George with “blood thinner” and
“cleaning products.”

(Amended Complaint, ¶ 34.)

This prompted Child Protective

Services to immediately visit Lawton’s residence to notify her of the complaint and inspect
the premises. (Amended Complaint, ¶ 35.)
The next day—April 4, 2013—Lawton took George to see his pediatrician and then
3

to Women & Children’s Hospital of Buffalo, where he was examined and tested and found
to not be suffering from any form of poisoning.

(Amended Complaint, ¶¶ 36, 37.)

Meanwhile, Meyers filed a criminal complaint against Lawton that day, alleging that she
was poisoning bottles of breast milk and formula to be given to George. (Amended
Complaint, ¶ 38.)
On April 5, 2013, Meyers went to Lawton’s residence to obtain bottles of breast
milk and formula, ostensibly to give to George. (Amended Complaint, ¶ 39.) In reality,
the individual defendants, who were now investigating Meyers’s criminal complaint from
the day before, directed Meyers to visit Lawton’s residence and retrieve the bottles for
further analysis. (Amended Complaint, ¶¶ 40, 41.) After giving Meyers the bottles,
Lawton saw him deliver them to one of the defendants, who was waiting in an undercover
police vehicle on a nearby street. (Amended Complaint, ¶ 42.) The bottles, however,
were in Meyers’s possession long enough outside Defendants’ view or supervision to
allow him or an associate the opportunity to contaminate the bottles before delivering
them to the waiting officers. (Amended Complaint, ¶ 43.)
On April 8, 2013, Meyers filed an Order to Show Cause in Family Court seeking
temporary custody of George based on his reports that Lawton had been poisoning
George’s bottles. (Amended Complaint, ¶ 44.) Family Court granted Meyers’s request
on April 10, 2013, and entered a Temporary Order of Custody and Visitation in Meyers’s
favor, with only limited, supervised visitation for Lawton. (Amended Complaint, ¶ 45.)
Because of this Order, Family Court deemed the child support proceedings, where
Meyers’s financial disclosure was still at issue, to be moot and therefore canceled them.
4

(Amended Complaint, ¶¶ 27-30, 46.) Further, in May 2013, the father of Lawton’s two
other children sought and received custody of them based on Meyers’s allegations.
(Amended Complaint, ¶ 47.)
Meanwhile, the criminal investigation continued. Lawton contacted Defendants
on multiple occasions to urge them to complete their investigation quickly, because the
open investigation was being used against her in Family Court and was preventing her
from regaining custody of her children. (Amended Complaint, ¶ 50.) During one such
call, Lawton spoke to Defendant Payne, who asked her to consent to an interview.
(Amended Complaint, ¶¶ 51, 52.) When Lawton declined to be interviewed without her
lawyer present, Detective Payne told her that she would never get her children back.
(Amended Complaint, ¶ 53.) Similarly, during a call with Defendant Pacholec, Lawton
again declined to be interviewed without her lawyer present, to which Pacholec
responded that he would have her arrested instead. (Amended Complaint, ¶¶ 54-56.)
On September 3, 2013, the New York State Office of Children and Family Services
informed Lawton that the Child Protective Services investigation into Meyers’s
accusations against her determined that the accusations were “unfounded.” (Amended
Complaint, ¶ 49.)
On or about October 1, 2013, the New York State Police Forensic Investigation
Center produced a Trace Evidence Report, which indicated that the bottles of breast milk
and formula that Meyers had provided to law enforcement in April 2013 contained ethanol
(alcohol).

(Amended Complaint, ¶ 58.)

There were no findings concerning the

presence of “blood thinner” or “cleaning products,” as the Avomeen Analytical Services
5

analysis had shown.

(Amended Complaint, ¶ 59.)

According to Lawton, however,

Defendants kept the bottles that Meyers had provided to law enforcement “for an
inappropriate and extended period of time in conditions unsuitable to preserve the
contents thereof for accurate testing and/or analysis.”

(Amended Complaint, ¶ 49.)

Defendants then did not submit the bottles to the New York State Police Forensic
Investigation Center in Albany, New York, until April 19, 2013, despite having received
them two weeks earlier. (Amended Complaint, ¶ 57.)
On October 17, 2013, Defendants arrested Lawton at her residence for “Attempted
Assault in the Second Degree” and “Endangering the Welfare of a Child.” (Amended
Complaint, ¶ 60.) Lawton was detained and remained in custody until October 25, 2013.
(Amended Complaint, ¶ 61.)
Lawton alleges that her arrest and detention were without probable cause,
because Defendants were aware of and disregarded the following information when they
arrested and detained her:
(1)

Meyers’s motives in filing charges against Lawton,
given his involvement in both child custody and child
support proceedings with her;

(2)

Meyers’s previous use of the Avomeen Analytical
Services report, which he commissioned, to initiate a
Child Protective Services investigation based on the
presence of blood-thinning pharmaceuticals and
industrial cleaners in the tested bottles (not ethanol);

(3)

the possibility that the presence of ethanol reflected in
the Trace Evidence Report could have been the natural
byproduct of improper storage and handling of the
bottles;

(4)

Meyers’s unsupervised possession of the bottles
6

Defendants tested and his opportunity to contaminate
them; and
(5)

the fact that the Avomeen Analytical Services report
and the Trace Evidence Report differed in their
findings.

(Amended Complaint, ¶ 62.)
Despite being aware of this information, Defendants arrested Lawton and insisted
that the Erie County District Attorney’s Office prosecute her and present her case to the
Erie County Grand Jury, notwithstanding that the District Attorney’s Office was skeptical.
(Amended Complaint, ¶ 63.) In March 2014, the District Attorney’s Office presented the
case to the Erie County Grand Jury, which elected to not return an indictment on or about
March 21, 2014, after which the charges against Lawton were not pursued. (Amended
Complaint, ¶ 64.)
Lawton alleges that Defendants’ conduct resulted in her “suffer[ing] . . . mental and
emotional injuries and pain and suffering . . . medical expenses; legal fees; loss of
parental and familial association; harm to reputation; loss of business and business
opportunities; as well as other damages.” (Amended Complaint, ¶ 65.)
III. DISCUSSION
Lawton asserts nine causes of action against Defendants.
Lawton’s first three causes of action assert federal claims against each defendant:
First, Lawton asserts that Defendants violated her rights under the Fourth and Fourteenth
Amendments to be free from unreasonable seizure when they arrested and detained her
without probable cause. (Amended Complaint, ¶¶ 66-79.) Second, Lawton alleges that
Defendants violated her rights under the Fourth, Fifth, and Fourteenth Amendments by
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maliciously prosecuting her. (Amended Complaint, ¶¶ 80-88.) Third, Lawton asserts
that Defendants violated her right to familial association under the First and Fourteenth
Amendments by causing her to lose custody of her children. (Amended Complaint, ¶¶
89-94.)
Lawton’s remaining six causes of action assert state law claims for false arrest
against each defendant (Amended Complaint, ¶¶ 95-99); false imprisonment against
each defendant (Amended Complaint, ¶¶ 100-107); malicious prosecution against each
defendant (Amended Complaint, ¶¶ 108-117); intentional infliction of emotional distress
against the individual defendants (Amended Complaint, ¶¶ 118-123); negligent infliction
of emotional distress against the individual defendants (Amended Complaint, ¶¶ 124129); and negligent hiring, training, and supervision against Defendant Town of Orchard
Park (Amended Complaint, ¶¶ 130-140).
Defendants move to dismiss each of Lawton’s causes of action for failure to state
a claim upon which relief can be granted under Rule 12 (b)(6) of the Federal Rules of Civil
Procedure. 1
A.

Rule 12 (b)(6)
Rule 12 (b)(6) allows dismissal of a complaint for Afailure to state a claim upon

which relief can be granted.@ Fed. R. Civ. P. 12 (b)(6). Federal pleading standards are
generally not stringent: Rule 8 requires only a short and plain statement of a claim. Fed.

1Defendants additionally sought dismissal of Lawton’s state law claims for failure to file a timely Notice of
Claim under New York General Municipal Law § 50-e, but since the Appellate Division, Fourth
Department granted Lawton leave to serve a late Notice of Claim, see Lawton v. Town of Orchard Park,
30 N.Y.S.3d 458 (4th Dep’t 2016), Defendants concede that this ground no longer serves as a basis for
dismissal, see Defendants’ Memorandum of Law, Docket No. 27-2, p. 2.

8

R. Civ. P. 8 (a)(2). But the plain statement must Apossess enough heft to show that the
pleader is entitled to relief.@ Bell Atl. Corp. v. Twombly, 550 U.S. 544, 557, 127 S. Ct.
1955, 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, 493 F.3d at 98. Legal conclusions, however, are not
afforded the same presumption of truthfulness. See Ashcroft v. Iqbal, 556 U.S. 662, 678,
129 S. Ct. 1937, 173 L. Ed. 2d 868 (2009) (Athe tenet that a court must accept as true
all of the allegations contained in a complaint is inapplicable to legal conclusions@).
ATo 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.=@ Iqbal, 556 U.S.
at 678 (quoting Twombly, 550 U.S. at 570).

Labels, conclusions, or Aa 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 1950; Fed. R. Civ. P. 8 (a)(2). Wellpleaded allegations in the complaint must nudge the claim Aacross the line from
conceivable to plausible.@ Twombly, 550 U.S. at 570.
A two-pronged approach is thus used to examine the sufficiency of a complaint,
which includes Aany documents that are either incorporated into the complaint by
reference or attached to the complaint as exhibits.@ Blue Tree Hotels Inv. (Can.), Ltd. v.
9

Starwood Hotels & Resorts Worldwide, Inc., 369 F.3d 212, 217 (2d Cir. 2004). This
examination is context specific and requires that the court draw on its judicial experience
and common sense. Iqbal, 556 U.S. at 679. First, statements that are not entitled to
the presumption of truth, such as conclusory allegations, labels, and legal conclusions,
are identified and stripped away. See id. Second, well-pleaded, non-conclusory factual
allegations are presumed true and examined to determine whether they Aplausibly give
rise to an entitlement to relief.@ Id. AWhere the well-pleaded facts do not permit the
court to infer more than the mere possibility of misconduct,@ the complaint fails to state a
claim. Id.
B.

42 U.S.C. ' 1983
Civil liability is imposed under 42 U.S.C. ' 1983 only upon persons who, acting

under color of state law, deprive an individual of rights, privileges, or immunities secured
by the Constitution and laws. See 42 U.S.C. ' 1983. To properly plead a cause of action
under § 1983, a plaintiff’s complaint must include allegations that the challenged conduct
“(1) was attributable to a person acting under color of state law, and (2) deprived the
plaintiff of a right, privilege, or immunity secured by the Constitution or laws of the United
States.” Whalen v. County of Fulton, 126 F.3d 400, 405 (2d Cir. 1997); Hubbard v. J.C.
Penney Dep’t Store, 05-CV-6042, 2005 WL 1490304, at *1 (W.D.N.Y. June 14, 2005).
Personal involvement in the deprivation of a federal constitutional right is the sine
qua non of liability under § 1983. See Haygood v. City of New York, 64 F. Supp. 2d 275,
280 (S.D.N.Y. 1999).

It is well settled in this circuit that personal involvement by

defendants in cases alleging constitutional deprivations is a prerequisite to an award of
10

damages under § 1983. See McKinnon v. Patterson, 568 F.2d 930, 934 (2d Cir. 1977);
Richardson v. Coughlin, 101 F. Supp. 2d 127, 129 (W.D.N.Y. 2000); Pritchett v. Artuz,
No. 99 Civ. 3957 (SAS), 2000 WL 4157, at *5 (S.D.N.Y. Jan. 3, 2000).
The Second Circuit construes personal involvement in this context to mean “direct
participation, or failure to remedy the alleged wrong after learning of it, or creation of a
policy or custom under which unconstitutional practices occurred, or gross negligence in
managing subordinates.” Black v. Coughlin, 76 F.3d 72, 74 (2d Cir. 1996); see also
Wright v. Smith, 21 F.3d 496, 501 (2d Cir. 1994). Personal involvement need not be
active participation. It can be found “when an official has actual or constructive notice of
unconstitutional practices and demonstrates gross negligence or deliberate indifference
by failing to act.” See Meriwether v. Coughlin, 879 F.2d 1037, 1048 (2d Cir. 1989).
Thus, personal involvement can be established by showing 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 others’ rights by failing to act on
information indicating that constitutional acts were
occurring.
Liner v. Goord, 582 F. Supp. 2d 431, 433 (W.D.N.Y. 2008) (citing Colon v. Coughlin, 58
F.3d 865, 873 (2d Cir. 1995)); Hayut v. State Univ. of New York, 352 F.3d 733, 753 (2d
Cir. 2003).
On its own, ' 1983 does not provide a source of substantive rights, but rather, a
11

method for vindicating federal rights conferred elsewhere in the federal statutes and
Constitution. See Graham v. Connor, 490 U.S. 386, 393-94,109 S. Ct. 1865, 104 L. Ed.
2d 443 (1989) (quoting Baker v. McCollan, 443 U.S. 137, 145 n.3, 99 S. Ct. 2689, 61 L.
Ed. 2d 433 (1979)). Accordingly, as a threshold matter in reviewing claims brought
pursuant to ' 1983, it is necessary to precisely identify the constitutional violations
alleged. See Baker, 443 U.S. at 140. Here, Lawton=s federal claims are grounded in
the First, Fourth, Fifth, and Fourteenth Amendments.
C.

Lawton’s Federal Claims
1.

Claims against Defendant Town of Orchard Park

Defendants argue that Lawton’s federal claims against Defendant Town of Orchard
Park must be dismissed because she has failed to adequately plead that a municipal
custom or policy caused her constitutional deprivations.

Lawton contends that her

amended complaint is sufficient under governing law.
Section 1983 imposes liability on a municipality whose official custom or policy
causes an employee to violate an individual’s constitutional rights. Monell v. Dep’t of
Soc. Servs., 436 U.S. 658, 98 S. Ct. 2018, 56 L. Ed. 2d 611 (1978). Municipal liability
cannot be premised solely on a respondeat superior theory, but must be based on
constitutional deprivations caused by an officially promulgated, or de facto, governmental
“custom” or “policy[.]” Pembaur v. City of Cincinnati, 475 U.S. 469, 480, 106 S. Ct. 1292,
89 L. Ed. 2d 452 (1986). Thus, a municipality will be liable for a § 1983 violation only
where the municipality itself was the “moving force” behind the deprivation of plaintiff’s
federal rights. See Bd. of the County Comm’rs of Bryan County, Okl. v. Brown, 520 U.S.
12

397, 400, 117 S. Ct. 1382, 137 L. Ed. 2d 626 (1997). That is, “a municipality will not be
held liable solely because it employs a tortfeasor.” Bisignano v. Harrison Cent. Sch.
Dist., 113 F. Supp. 2d 591, 601 (S.D.N.Y. 2000). Consequently, “to establish the liability
of a municipality in an action under § 1983 for unconstitutional acts by a municipal
employee below the policymaking level, a plaintiff must establish that the violation of his
constitutional rights resulted from a municipal custom or policy.” Vann v. City of New
York, 72 F.3d 1040, 1049 (2d Cir. 1995).
As such, to adequately state a claim for municipal liability, a plaintiff must plead
the existence of an official policy or custom that caused the denial of a constitutional right.
See Zahra v. Town of Southold, 48 F.3d 674, 685 (2d Cir. 1995). The existence of
municipal policy or custom can be demonstrated in several ways, including: (1) showing
an officially promulgated and endorsed municipal policy, Monell, 436 U.S. at 658; (2)
showing that actions taken by officials with final policymaking authority caused a
constitutional violation, Pembaur, 475 U.S. at 480–81; (3) showing that municipal
decisionmaking evidences “deliberate indifference” to the rights of those with whom
municipal employees come in contact, including failure to remedy an otherwise
constitutional policy so deficient and widespread that policymakers knew or should have
known with a high degree of certainty that constitutional violations could result, City of
Oklahoma City v. Tuttle, 471 U.S. 808, 819, 105 S. Ct. 2427, 85 L. Ed. 2d 791 (1985), or
(4) failure to train employees when training is necessary to prevent the violation of federal
rights, City of Canton v. Harris, 489 U.S. 378, 109 S. Ct. 1197, 103 L. Ed. 2d 412 (1989).
When the existence of a municipal policy or custom is premised on a failure to train, the
13

municipality’s failure to train its employees must rise to the level of deliberate indifference.
See Dwares v. City of New York, 985 F.2d 94, 100 (2d Cir. 1993).
Deliberate indifference occurs where conscious disregard is
displayed for the consequences of actions, not just simple or
even heightened negligence.
To prove deliberate
indifference, a plaintiff must demonstrate that: (1) a
policymaker knows to a moral certainty that his or her
employees will confront a given situation; (2) the situation
either presents the employee with a difficult choice of the sort
that training or supervision will make less difficult or that there
is a history of employees mishandling the situation; and (3)
the wrong choice by the municipality employee will frequently
cause the deprivation of a citizen’s constitutional rights.
Knicrumah v. Albany City Sch. Dist., 241 F. Supp. 2d 199, 207 (N.D.N.Y. 2003) (internal
quotations omitted) (citing Walker v. City of New York, 974 F.2d 293, 297-98 (2d Cir.
1992)); see also Young v. County of Fulton, 160 F.3d 899, 903-04 (2d Cir. 1998).
Finally, “[i]t is well settled that a plaintiff’s conclusory allegations, which merely
recite the elements of a Monell claim, are insufficient to state a claim for municipal
liability.” Bryant v. Ciminelli, 6:16-CV-06766 EAW, 2017 WL 3188988, at *3 (W.D.N.Y.
July 26, 2017) (citing cases); Weaver v. City of N.Y., No. 13-cv-20 (CBA)(SMG), 2014
WL 950041, at *7 (E.D.N.Y. Mar. 11, 2014) (“[V]ague and conclusory assertions are not
sufficient to state a claim of municipal liability under Monell.”) A plaintiff must allege facts
tending to support, at least circumstantially, an inference that the alleged municipal policy
or custom exists. Dwares, 985 F.2d at 100.
Here, the only allegation concerning municipal liability in each of the three federal
claims is that the individual defendants’ conduct giving rise to the claim “was pursuant to
a policy and custom of Defendant Town of Orchard Park.” (Amended Complaint, ¶¶ 77,
14

86, 92.) The only other allegation concerning a policy and custom is one set forth at the
beginning of the amended complaint, which alleges as follows:
Upon information and belief, at all relevant times stated
herein, Defendant TOWN OF ORCHARD PARK and the
Orchard Park Police Department had a policy and custom of
depriving citizens of their right to parental and familial
association, arresting citizens without probable cause,
unreasonably seizing citizens in violation of the Fourth and
Fourteenth Amendments, seizing citizens without probable
cause, failing to afford citizens due process, infringing on
citizens’ constitutional right to freedom from bodily restraint,
depriving citizens of their liberty interests under the
Constitution and of generally disregarding the rights of
citizens under the United States Constitution.
(Amended Complaint, ¶ 19.)
These general allegations are wholly conclusory; no facts whatsoever are pleaded
from which the existence of a particular policy or custom could be inferred. See Dwares,
985 F.2d at 100 (mere assertion of the existence of a policy or custom is insufficient in
absence of factual allegations supporting an inference that such a policy or custom
exists). Nowhere does Lawton identify an official policy or custom that caused the denial
of her constitutional rights. See Zahra, 48 F.3d at 685. Dismissal of each federal claim
against the Defendant Town of Orchard Park is therefore required. See Costello v. City
of Burlington, 632 F.3d 41, 49 (2d Cir. 2011) (dismissing Monell claims on the basis that
the plaintiff failed to allege facts sufficient to show that a municipal policy or custom
caused the alleged constitutional violations); Bryant, 2017 WL 3188988, at *4 (dismissing
Monell claim because the plaintiff failed to allege facts concerning a municipal policy or
custom); Houghton v. Cardone, 295 F. Supp. 2d 268, 278 (W.D.N.Y. 2003) (dismissing

15

Monell claim on the basis that the complaint “contain[ed] only the most conclusory
allegations” without “a single fact [] alleged in support of those allegations”).
Lawton argues that she has adequately pleaded a claim for municipal liability on
the theory that actions taken by officials with final policymaking authority caused the
constitutional violations at issue. See Pembaur, 475 U.S. at 480–81. In this regard,
Lawton argues that Defendant Mark Pacholec, Chief of Police, had final policymaking
authority and that he and the other individual defendants ignored certain information in
determining whether probable cause existed for Lawton’s arrest. Thus, according to
Lawton, the single event involved in this case (her arrest without probable cause) gives
rise to a claim for municipal liability. See, e.g., Amnesty Am. v. Town of West Hartford,
361 F.3d 113, 126 (2d Cir. 2004) (noting that “even a single action by a decisionmaker
with final authority to establish municipal policy with respect to the action ordered is
sufficient to support municipal liability”).
Lawton’s argument fails for several reasons. First, Lawton does not allege that
Pacholec’s conduct constitutes an official policy or custom of the Town of Orchard Park.
Second, Lawton does not allege that Defendant Pacholec was Chief of Police during all
relevant times, and in fact, alleges that “Chief Samuel M. McCune” was sent the Trace
Evidence Report in October 2013. (Amended Complaint, ¶ 58.). Third, Lawton does
not allege that Defendant Pacholec himself arrested her nor that he directed the individual
defendants to arrest her. 2 (See, e.g., Amended Complaint, ¶ 60 (alleging only that

2In what appears to be an effort to supplement her amended complaint, Lawton relies on and cites
information from news articles concerning the individual defendants’ involvement in this case. (See, e.g.,
Plaintiff’s Memorandum of Law, Docket No. 22-10, pp. 13-14.) Setting aside the admissibility and

16

Lawton “was arrested by the Defendants” on or about October 17, 2013).) Fourth, the
information that the individual defendants, including Pacholec, allegedly ignored and
which Lawton contends gives rise to her false arrest and malicious prosecution claims,
see Amended Complaint, ¶ 62, pertains solely to the determination of whether probable
cause existed for Lawton’s arrest, which does not implicate a policy or custom. 3 See
Pembaur, 475 U.S. at 486 (White, J., concurring) (“A sheriff, for example, is not the final
policy maker with respect to the probable-cause requirement for a valid arrest. He has
no alternative but to act in accordance with the established standard; and his deliberate
or mistaken departure from the controlling law of arrest would not represent municipal
policy.”). Consequently, the general rule that “a single incident alleged in a complaint,
especially if it involved only actors below the policy-making level, does not suffice to show
a municipal policy” applies. Ricciuti v. N.Y.C. Transit Auth., 941 F.2d 119, 123 (2d Cir.
1991).
Lawton also appears to argue that her allegations in support of her state law claim
for negligent hiring, training, and supervision adequately plead a Monell claim, but as set
forth above, the standard for a Monell claim based on failure-to-train is one of deliberate
indifference, not negligence.

And nowhere in the amended complaint does Lawton

include factual allegations of deliberate indifference.

reliability of this evidence, on a Rule 12 (b)(6) motion, this Court cannot consider information outside the
four corners of the complaint without converting the motion to one for summary judgment, which this
Court declines to do. See Pani v. Empire Blue Cross Blue Shield, 152 F.3d 67, 71 (2d Cir. 1998); Friedl
v. City of N.Y., 210 F.3d 79, 83-84 (2d Cir. 2000).
3In this regard, Lawton’s argument does not pertain to her claim concerning familial association, for which
no policy or custom has been pleaded or argued.

17

Accordingly, in the absence of factual allegations supporting the existence of a
municipal policy or custom that caused Lawton’s alleged injuries, Lawton’s federal claims
against Defendant Town of Orchard Park must be dismissed.
2.

Claims against the Individual Defendants

Lawton brings her federal claims against the individual defendants in only their
individual capacities. (Amended Complaint, ¶ 18.)
a.

Claim 1: False Arrest/False Imprisonment under the Fourth and
Fourteenth Amendments

A false arrest claim brought under § 1983 and premised on the Fourth Amendment
right to be free from unreasonable seizure, including arrest without probable cause, is
analyzed the same as a claim for false arrest brought under New York law.

See

Ackerson v. City of White Plains, 702 F.3d 15, 19 (2d Cir. 2012) (citing Weyant v. Okst,
101 F.3d 845, 852 (2d Cir. 1996)). False arrest and false imprisonment claims are
essentially synonymous. See Weyant, 101 F.3d at 853 (citing Singer v. Fulton County
Sheriff, 63 F.3d 110, 118 (2d Cir. 1995)); Nix v. City of Rochester, No. 6:14-CV-06395
(MAT), 2017 WL 3387103, at *5 (W.D.N.Y. Aug. 5, 2017); see also Walker v. City of New
York, 15 CV 500 (NG)(ST), 2017 WL 2799159, at *3 (E.D.N.Y. June 27, 2017) (“A § 1983
claim for false arrest is a corollary of the Fourth Amendment right to remain free from
unreasonable seizures, a right which includes the right to remain free from arrest absent
probable cause.”).
To state a claim for false arrest under New York law, a plaintiff must allege facts
showing that (1) the defendant intended to confine the plaintiff; (2) the plaintiff was
conscious of the confinement, (3) the plaintiff did not consent to the confinement, and (4)
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the confinement was not otherwise privileged. See Willey v. Kirkpatrick, 801 F.3d 51,
70-71 (2d Cir. 2015) (quoting Broughton v. State of New York, 335 N.Ed.2d 310, 314
(N.Y. 1975)); Nix, 2017 WL 3387103, at *5.
“To avoid liability for a claim of false arrest, an arresting officer may demonstrate
that either (1) he had probable cause for the arrest, or (2) he is protected from liability
because he has qualified immunity.” Simpson v. City of New York, 793 F.3d 259, 265
(2d Cir. 2015); Bernard v. United States, 25 F.3d 98, 102 (2d Cir. 1994); Walker, 2017
WL 2799159, at *3 (“An arrest is privileged when probable cause exists, and probable
cause is, therefore, a complete defense to a claim for false arrest.”) (citing Weyant).
Probable cause “is a complete defense to an action for false arrest brought under
New York law or § 1983.” Ackerson v. City of White Plains, 702 F.3d 15, 19 (2d Cir.
2012). A finding of probable cause is made based on the “totality of the circumstances.”
Illinois v. Gates, 462 U.S 213, 230, 103 S. Ct. 2317, 76 L. Ed. 2d 527 (1982). An officer
has probable cause to arrest “’when he or she has knowledge or reasonably trustworthy
information of facts and circumstances that are sufficient to warrant a person of
reasonable caution in the belief that the person to be arrested has committed or is
committing a crime.’” Garcia v. Does, 779 F.3d 84, 92 (2d Cir. 2015) (quoting Dickerson
v. Napolitano, 604 F.3d 732, 751 (2d Cir. 2010)). In assessing probable cause, an officer
is “not required to explore and eliminate every theoretically plausible claim of innocence
before making an arrest.” Curley v. Vill. of Suffern, 268 F.3d 65, 70 (2d Cir. 2001)
(internal quotation marks omitted).

When a victim or eyewitness reports a crime,

probable cause will generally be found to exist, unless the circumstances raise doubt as
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to the veracity of the complaint. See Fabrikant v. French, 691 F.3d 193, 216 (2d Cir.
2012); Wahhab v. City of New York, 386 F. Supp. 2d 277, 287 (S.D.N.Y. 2005).
Lawton alleges that the individual defendants arrested and confined her; that she
was aware of her confinement; that she did not consent to her arrest and confinement;
and that her arrest and confinement were without probable cause. (Amended Complaint,
¶¶ 60, 61, 74, 75, 96, 102-104.) She further alleges that circumstances existed that
raised doubt or should have raised doubt as to the veracity of Meyers’s complaints against
Lawton (e.g., the ongoing custody and child support dispute), and in turn, the existence
of probable cause. (Amended Complaint, ¶¶ 62, 67-73.) This is sufficient to state a
false arrest claim. See Lawyer v. Cota, 1:16-cv-62-jgm, 2017 WL 2572372, at *3 (D.Vt.
June 14, 2017) (finding allegations that the plaintiff was detained and confined for four
days on charges for which there was no probable cause sufficient, at the motion to dismiss
stage, to state a claim for false arrest).
Whether probable cause existed is in dispute and cannot be resolved at this time.
Moreover, Defendants are not entitled to qualified immunity at this early stage of the
litigation because “[t]here is no doubt that the right to be free from arrest without probable
cause [i]s clearly established” and the existence of probable cause is in dispute. Jenkins
v. City of New York, 478 F.3d 76, 87 (2d Cir. 2007).
Defendants argue that dismissal is nonetheless required because Lawton fails to
adequately allege their personal involvement or that they acted outside the scope of their
official capacities as law enforcement officers.

Lawton alleges, however, that the

individual defendants were each involved in her arrest and imprisonment. (Amended
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Complaint, ¶¶ 60, 61, 67, 74, 75, 104.) Although she does not parse each individual
defendant’s role or personal involvement, Lawton’s amended complaint is minimally
sufficient to survive Defendants’ motion to dismiss.

Discovery will allow her to

particularize her claims going forward. In addition, Lawton sufficiently alleges that the
individual defendants acted in their individual capacities outside the scope of their duties
as law enforcement officers, particularly considering her allegations that they ignored
certain information that allegedly detracted from a finding of probable cause to arrest.
(Amended Complaint, ¶¶ 17, 18, 62, 67-74 106.)
Consequently, Defendants’ motion to dismiss Lawton’s § 1983 false arrest/false
imprisonment claim is denied.
b.

Claim 2: Malicious Prosecution under the Fourth, Fifth,
and Fourteenth Amendments

To state a claim for malicious prosecution under both federal and New York law, a
plaintiff must allege “(1) the commencement or continuation of a criminal proceeding
against her, (2) the termination of the proceeding in her favor, (3) that there was no
probable cause for the proceeding; and (4) that the proceeding was instituted with
malice.” Mitchell v. City of New York, 841 F.3d 72, 79 (2d Cir. 2016) (quoting Kinzer v.
Jackson, 316 F.3d 139, 143 (2d Cir. 2003)); Ramos v. City of New York, 15 Civ. 6085
(ER), 2017 WL 3267736, at *7 (S.D.N.Y. July 31, 2017) (“The elements of malicious
prosecution under Section 1983 are substantially the same as the elements under New
York Law; the analysis of the state and the federal claims is identical.”) (quotation marks
and citation omitted) For a § 1983 claim, a plaintiff must additionally allege “a sufficient
post-arraignment liberty restraint to implicate the plaintiff’s Fourth Amendment rights.”
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Rohman v. New York City Transit Auth., 215 F.3d 208, 215 (2d Cir. 2000). Like a claim
for false arrest, probable cause is a complete defense to a malicious prosecution claim.
See Manganiello v. City of New York, 612 F.3d 149, 161-62 (2d Cir. 2010) (quoting Savino
v. City of New York, 331 F.3d 63, 72 (2d Cir. 2003)).
Lawton meets these pleading requirements.

She alleges that the individual

defendants arrested her and insisted that the District Attorney’s Office prosecute her
(Amended Complaint, ¶¶ 60, 63, 83, 84); that the criminal proceedings terminated in her
favor (Amended Complaint, ¶ 64); that there was no probable cause for the prosecution
(Amended Complaint, ¶¶ 62, 74, 81); that the criminal proceedings were instituted with
malice (Amended Complaint, ¶¶ 82, 84, 85); and that she suffered post-arraignment
detention (Amended Complaint, ¶¶ 61, 76).
Defendants seek dismissal of Lawton’s malicious prosecution claim on the same
basis as they did her false arrest/false imprisonment claim, which this Court has already
rejected. Consequently, for the reasons stated above, Defendants’ motion to dismiss
Lawton’s § 1983 malicious prosecution claim is denied.
c.

Claim 3: Familial Association under the First and
Fourteenth Amendments

Familial association claims fall under the First and Fourteenth Amendments.
Retaliation on account of family association is analyzed under the First Amendment, see
Adler v. Pataki, 185 F.3d 35, 42-45 (2d Cir. 1999), while government interference in
familial relationships, particularly parent-child, is analyzed under the substantive due
process clause of the Fourteenth Amendment, see Tenenbaum v. Williams, 193 F.3d
581, 600 (2d Cir. 1999); Wilkinson v. Russell, 182 F.3d 89, 103-104 (2d Cir. 1999); see
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also Deskovic v. City of Peekskill, 894 F. Supp. 2d 443, 467-68 (S.D.N.Y. 2012)
(discussing right of familial association under the First and Fourteenth Amendments).
Here, Lawton does not claim retaliation; she alleges that Defendants’ actions caused her
to lose custody of her children. Her claim therefore falls under the substantive due
process clause of the Fourteenth Amendment.
The Fourteenth Amendment provides, in pertinent part, that “[n]o State shall . . .
deprive any person of life, liberty, or property, without due process of law . . . .” U.S.
CONST. amend. XIV.

There are two broad categories of due process claims—

substantive and procedural. A substantive due process claim is based on the deprivation
of a constitutionally protected life, liberty, or property interest. See B.D. v. DeBuono, 130
F. Supp. 2d 401, 431 (S.D.N.Y. 2000). A procedural due process claim is based on the
deprivation of a protected life, liberty, or property interest, without notice and an
opportunity to be heard.

Id. at 432-33. With respect to any due process claim —

substantive or procedural—“[t]he threshold issue is always whether the plaintiff has a
property or liberty interest protected by the Constitution.” Narumanchi v. Bd. of Trs. of
Conn. State Univ., 850 F.2d 70, 72 (2d Cir. 1988).
But not all governmental actions that infringe on rights are of constitutional
proportion. To sufficiently state a substantive due process claim, a plaintiff must allege
that the infringement on his or her right was “arbitrary, conscience-shocking, or
oppressive in a constitutional sense.” Kaluczky v. City of White Plains, 57 F.3d 202, 211
(2d Cir. 1995); Cine SK8, Inc. v. Town of Henrietta, 507 F.3d 778, 784 (2d Cir. 2007)
(finding that a plaintiff must show that “defendants infringed on [his] property right in an
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arbitrary or irrational manner”). Substantive due process does not protect against action
by a state actor that is simply “incorrect or ill-advised.” Id. (citing Lowrance v. Achtyl, 20
F.3d 529, 537 (2d Cir. 1994)). Thus, to state a substantive due process claim, a plaintiff
must allege (1) a valid, protected interest, and (2) the infringement of that interest by the
defendants in an arbitrary, irrational, or conscience-shocking manner. See Cine SK8,
507 F.3d at 784; Velez v. Levy, 401 F.3d 75, 93 (2d Cir. 2005).
Here, Lawton alleges that the individual defendants violated her right to familial
association, which, as noted above, is an interest protected under the Fourteenth
Amendment. (Amended Complaint, ¶ 90, 91.) Lawton has not, however, alleged that
the individual defendants infringed her rights in a way “’so shocking, arbitrary, and
egregious that the Due Process Clause would not countenance it even were it
accompanied by full procedural protection.’” See Anthony v. City of New York, 339 F.3d
129, 142-43 (2d Cir. 2003) (quoting Tenenbaum, 193 F.3d at 600).
Taking them as true, Lawton’s allegations show that Family Court removed her
children from her custody after she was afforded a full and fair opportunity to be heard in
the context of formal custody proceedings before a court of competent jurisdiction. Such
removal does not offend substantive due process.

Moreover, Lawton’s allegations

establish that Defendants did not in any way initiate the Family Court proceedings or
cause Family Court to remove her children from her custody. The fact that information
gathered in the context of the criminal investigation may have been used in the custody
proceedings does not equate to causation. Further, Lawton’s allegations show that the
individual defendants were not personally involved in the custody proceedings, which
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Lawton alleges were instituted and conducted by non-parties.

For these reasons,

Lawton fails to state a Fourteenth Amendment familial association claim.
D.

Lawton’s State Claims
Defendants do not seek dismissal of Lawton’s state law claims for false arrest,

false imprisonment, and malicious prosecution apart from the arguments discussed and
rejected above. Accordingly, since this Court finds that the federal counterpart claims
may proceed against the individual defendants and the analysis is essentially the same
for the state claims, Defendants’ motion to dismiss Lawton’s state law claims against each
defendant 4 for false arrest, false imprisonment, and malicious prosecution is denied.
Defendants do seek dismissal, however, of Lawton’s emotional distress claims and
her claim for negligent hiring, training, and supervision.
1. Emotional Distress Claims
In New York “a person may not bring claims for intentional infliction of emotional
distress or negligent infliction of emotional distress where, as here, there are more
traditional theories of tort liability available.” Hays v. City of New York, 14-CV-10126
(JMF), 2017 WL 782496, at *5 (S.D.N.Y. Feb. 28, 2017) (citing cases). That is, “New
York does not recognize [intentional-infliction-of-emotional-distress] or [negligentinfliction-of-emotional-distress] causes of action where the conduct underlying them may
be addressed through traditional tort remedies, such as false arrest.” Berrio v. City of

4Lawton’s state law claims survive as against Defendant Town of Orchard Park, because unlike in § 1983
actions, municipalities may be held vicariously liable for the actions of their employees under New York
law. See Jenkins v. City of New York, 478 F.3d 76, 95 n. 21 (2d Cir. 2007); Calderon v. City of New
York, No. 14 Civ. 1082(PAE), 2015 WL 6143711, at *3 (S.D.N.Y. Oct. 19, 2015).

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New York, 15-CV-09570 (ALC), 2017 WL 118024, at *7 (S.D.N.Y. Jan. 10, 2017). Thus,
emotional distress claims may “be invoked only as a last resort.”

Turley v. ISG

Lackawanna, Inc., 774 F.3d 140, 158-160 (2d Cir. 2014).
Here, Lawton’s emotional distress claims involve the same conduct that underlies
her false arrest/false imprisonment and malicious prosecution claims.

(Amended

Complaint, ¶¶ 118-129.) Because alternate remedies are available, Defendants’ motion
to dismiss Lawton’s emotional distress claims is granted. See Jones v. Parmley, 5: 98CV-374 (FJS/TWD), 2016 WL 5793711, at *1 (N.D.N.Y. Oct. 4, 2016) (collecting cases
standing for the proposition that emotional distress claims do not survive when other
remedies remain available).
2. Negligent Hiring, Training, and Supervising
“To maintain a claim against a municipal employer for the ‘negligent hiring, training,
and retention’ of a tortfeasor under New York law, a plaintiff must show that the employee
acted ‘outside the scope of her employment.’” Velez v. City of New York, 730 F.3d 128,
136-37 (2d Cir. 2013) (quoting Gurevich v. City of New York, No. 06 Civ. 1646 (GEL),
2008 WL 113775, at *6 (S.D.N.Y. Jan. 10, 2008)). If an employee acts within the scope
of his employment, the employer and the employee’s supervisors may be held liable for
the employee’s negligence only under a theory of respondeat superior. Id. at 137. “This
is because if the employee was not negligent, there is no basis for imposing liability on
the employer, and if the employee was negligent, the employer must pay the judgment
regardless of the . . . adequacy of the training.” Karoon v. N.Y.C. Transit Auth., 241
A.D.2d 323, 659 N.Y.S.2d 27, 29 (1st Dep’t 1997).
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To state a claim for negligent hiring, training, and supervision, a plaintiff must
allege, in addition to the elements of standard negligence, that “(1) the tort-feasor and the
defendant were in an employee-employer relationship, (2) the employer knew or should
have known of the employee’s propensity for the conduct which caused the injury prior to
the injury’s occurrence, and (3) that the tort was committed on the employer’s premises
or with the employer’s chattels.” Ehrens v. Lutheran Church, 385 F.3d 232, 235 (2d Cir.
2004) (per curiam).

“’A cause of action for negligent hiring or retention requires

allegations that the employer . . . failed to investigate a prospective employee
notwithstanding knowledge of facts that would lead a reasonably prudent person to
investigate that prospective employee.’” Bouchard v. N.Y. Archdiocese, 719 F. Supp. 2d
255, 261 (S.D.N.Y. 2010) (quoting Richardson v. City of New York, Nol. 04 Civ. 05314
(THK), 2006 WL 3771115, at *13 (S.D.N.Y. Dec. 21, 2006)); Tesoriero v. Syosset Cent.
Sch. Dist., 382 F. Supp. 2d 387, 401 (E.D.N.Y. 2005) (“to prevail on a negligent hiring,
retention, or supervision claim under New York law, the plaintiff must show that the
defendant/employer knew or should have known of its employee’s propensity to engage
in the injurious conduct in question”). And “a single incident is generally insufficient to
demonstrate liability under a failure to train theory” or a failure-to-supervise theory.
Breitkopf v. Gentile, 41 F. Supp. 3d 220, 254 (E.D.N.Y. 2014) (quoting Perez v. N.Y.C.
Dep’t of Corr., No. 10-CV-2697 RRM RML, 2013 WL 500448 (E.D.N.Y. Jan. 17, 2013));
White-Ruiz v. City of New York, No. 93 CIV. 7233 (DLC)(MHD), 1996 WL 603983, at *10
(S.D.N.Y. Oct. 22, 1996).
Here, Lawton’s allegations are entirely conclusory. (Amended Complaint, ¶¶ 13027

140.) She does not allege any facts indicating that Defendant Town of Orchard Park
knew or should have known of the individual defendants’ propensity for injurious conduct
at their time of hire or anytime thereafter, nor does she allege any facts suggesting that
Defendant Town of Orchard Park failed to investigate the individual defendants even
though it had knowledge that would warrant an investigation. Moreover, Lawton fails to
allege any specific deficiencies in the Town of Orchard Park’s hiring, training, or
supervision methods. And finally, Lawton fails to allege any incidents other than her
single encounter with the individual defendants that would support a failure to hire, train,
or supervise theory. Consequently, Defendants’ motion to dismiss this claim is granted.
IV. CONCLUSION
For the reasons stated above, Lawton’s Motion to Amend is granted, and
Defendants’ Motion to Dismiss is granted in part and denied in part.
As it relates to Lawton’s federal claims, each of her federal claims against
Defendant Town of Orchard Park and her familial association claims are dismissed, but
her claims for false arrest/false imprisonment and malicious prosecution will proceed
against the individual defendants in their individual capacities.
As it relates to Lawton’s state law claims, her emotional distress claims and
negligent hiring, training, and supervision claims are dismissed, but her claims for false
arrest, false imprisonment, and malicious prosecution will proceed against Defendants.
V. ORDERS
IT HEREBY IS ORDERED, that Plaintiff’s Motion to Amend (Docket No. 22) is
GRANTED.
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FURTHER, that the Plaintiff is directed to file her proposed amended complaint
(Docket No. 22-2), without the redline alterations, as the amended complaint in this action.
FURTHER, that Defendants’ Motion to Dismiss (Docket No. 16) is GRANTED in
part and DENIED in part as set forth above.
SO ORDERED.
Dated:

August 18, 2017
Buffalo, New York

/s/William M. Skretny
WILLIAM M. SKRETNY
United States District Judge

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