10-0145-cv
Claudio v. Sawyer


                          UNITED STATES COURT OF APPEALS
                              FOR THE SECOND CIRCUIT

                                        SUMMARY ORDER
RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A
SUMMARY ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY
FEDERAL RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1. WHEN
CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE
EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (WITH THE NOTATION
“SUMMARY ORDER”). A PARTY CITING A SUMMARY ORDER MUST SERVE A COPY OF IT ON ANY
PARTY NOT REPRESENTED BY COUNSEL.

       At a stated term of the United States Court of Appeals for the Second Circuit, held
at the Daniel Patrick Moynihan United States Courthouse, 500 Pearl Street, in the City of
New York, on the 10th day of February, two thousand eleven.

PRESENT: PIERRE N. LEVAL,
                 REENA RAGGI,
                 DEBRA ANN LIVINGSTON,
                                 Circuit Judges.
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LISA CLAUDIO, as proposed Administrator of the Estate of JAYSON TIRADO,
deceased, JAYLENE TIRADO, an infant by her mother and natural
guardian LISA CLAUDIO, and IRENE TIRADO,
                                 Plaintiffs-Appellants,

                         v.                                                         No. 10-0145-cv

SEAN SAWYER,
                                 Defendant-Cross-Claimant-Appellee,

CITY OF NEW YORK,
                                 Defendant-Cross-Defendant-Appellee.
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APPEARING FOR APPELLANTS:                         MATTHEW J. MAIORANA, Queller, Fisher,
                                                  Washor, Fuchs & Kool, LLP, New York,
                                                  New York.

APPEARING FOR APPELLEES:                          ELLEN RAVITCH, Assistant Corporation
                                                  Counsel (Stephen J. McGrath, on the brief), for
                                                  Michael A. Cardozo, Corporation Counsel of the
                                           City of New York, New York, New York, for
                                           City of New York.

                                           MITCHELL GARBER, Worth Longworth &
                                           London LLP, New York, New York, for Sean
                                           Sawyer.

       Appeal from the United States District Court for the Southern District of New York

(Denny Chin, Judge).

       UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, AND

DECREED that the judgment entered on December, 31, 2009, is AFFIRMED.

       Plaintiffs Lisa Claudio, the proposed administrator of the estate of Jayson Tirado,

Jaylene Tirado, and Irene Tirado appeal from a judgment dismissing their amended

complaint against defendants Sean Sawyer and the City of New York (“the City”) alleging,

inter alia, violations of Jayson Tirado’s Fourth and Fourteenth Amendment rights, pursuant

to 42 U.S.C. § 1983, as a result of Jayson Tirado’s fatal shooting by Sawyer. See Fed. R.

Civ. P. 12(b)(6). We review the challenged judgment de novo, accepting the allegations in

the amended complaint as true and drawing all reasonable inferences in plaintiffs’ favor, see,

e.g., LaFaro v. N.Y. Cardiothoracic Grp., PLLC, 

, 475-76 (2d Cir. 2009),

consistent with the pleading standards articulated in Ashcroft v. Iqbal, 

, 1949

(2009), and Bell Atlantic Corp. v. Twombly, 

, 570 (2007). In doing so, we

assume the parties’ familiarity with the facts and record of prior proceedings, which we

reference only as necessary to explain our decision to affirm.




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       Like the district court, we conclude that plaintiffs failed sufficiently to allege that

Sawyer, an off-duty police officer, acted under color of state law in shooting Jayson Tirado,

as required for a § 1983 claim. See Velez v. Levy, 

, 84 (2d Cir. 2005). Nothing

in plaintiffs’ complaint suggests that Sawyer identified himself or was recognizable as a

police officer, or otherwise engaged in any conduct arguably invoking “the real or apparent

power of the police department.”1 Pitchell v. Callan, 

, 548 (2d Cir. 1994); see

also Bonsignore v. City of New York, 

, 638-39 (2d Cir. 1982) (denying motion

to amend complaint because shooting of wife by off-duty officer with service pistol not

“committed in the performance of any actual or pretended duty” (internal quotation marks

omitted)). Thus, plaintiffs’ § 1983 claim against Sawyer was properly dismissed. This

pleading defect further doomed plaintiffs’ Monell claim against the City for failure to

properly train its officers regarding off-duty weapons use as such a claim must be based on

an independent constitutional violation by a state actor. See Segal v. City of New York, 

, 219 (2d Cir. 2006); see also City of Los Angeles v. Heller, 

, 799

(1986); Monell v. Dep’t of Soc. Servs., 

, 694-95 (1978); Pitchell v. 

.




       1
         Plaintiffs’ reliance on Revene v. Charles County Commissioners, 

, 874
(4th Cir. 1989) (reversing dismissal because alleged facts sufficient “to determine that the
complaint [was] not frivolous”), is misplaced as that case was decided prior to the Supreme
Court’s recent clarifications in Iqbal and Twombly of the motion to dismiss standard. Absent
any supporting facts, plaintiffs’ “formulaic recitation” of § 1983’s state actor element is
insufficient. Bell Atl. Corp. v. 

.

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       In urging otherwise, plaintiffs assert that even if Sawyer was not a state actor, the City

is liable because its purported failure to train off-duty officers and encouragement of them

carrying weapons increased the likelihood of Sawyer privately inflicting harm on Jayson

Tirado. We are not persuaded. The “state-created danger” doctrine holds government

officials liable for private harms if their “affirmative conduct . . . communicates, explicitly or

implicitly, official sanction of private violence.” Okin v. Vill. of Cornwall-on-Hudson Police

Dep’t, 

, 429 (2d Cir. 2009); see also Lombardi v. Whitman, 

, 80 (2d

Cir. 2007) (noting potential liability for government official whose “affirmative act . . . creates

an opportunity for” third party to harm victim). Although liability under this doctrine may

extend to a municipality if its policy or custom causes an official’s unconstitutional

encouragement of private harm, plaintiffs do not here allege that any official affirmatively

condoned Sawyer’s tragic actions. See Matican v. City of New York, 

, 154-55

(2d Cir. 2008) (noting city could not be liable if plaintiff did not demonstrate constitutional

violation by individual officers under state-created danger theory); cf. Okin v. Vill. of

Cornwall-on-Hudson Police 

(reversing dismissal of § 1983

complaint alleging village custom of tacitly endorsing police officers’ unconstitutional

responses to domestic violence allegations). Put another way, absent some individual state

actor whose unconstitutional conduct might be traceable to the City’s alleged lack of training,

plaintiffs’ claims impermissibly seek to create “a separate cause of action for the failure by

the government to train its employees” under the guise of a state-created danger. Segal v. City



                                                4
of New 

; see also Matican v. City of New 

,

159. Accordingly, dismissal was warranted.

      We have considered plaintiffs’ other arguments on appeal and conclude that they lack

merit. Accordingly, we AFFIRM the judgment of the district court.

                          FOR THE COURT:
                          CATHERINE O’HAGAN WOLFE, Clerk of Court




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