PAUL A. ENGELMAYER, District Judge.
Plaintiff Arturo Cruz brings this action against the City of New York ("the City"), Police Officer Eugene Donnelly (collectively, the "defendants"), and Police Officers "John Doe" #1-10 under 42 U.S.C. §§ 1983 and 1988 for violations of his civil rights and the Constitutions of New York and the United States. Defendants have filed a motion for judgment on the pleadings under Federal Rule of Civil Procedure 12(c) seeking partial dismissal, with prejudice, of the Complaint, specifically, plaintiff's claim for municipal liability against the City pursuant to Monell v. Dep't of Soc. Servs. of N.Y.C., 436 U.S. 658 (1978). For the reasons that follow, defendants' motion is granted.
According to the Complaint, since August 2011, Cruz has lived in Apartment 3F at 1391 Nelson Avenue, Bronx, New York. Compl. ¶ 9. Since he began living there, there have been attempts to deliver unordered packages to his apartment, but he refused all deliveries. Id. ¶ 10.
On May 29, 2012, while Cruz was in his apartment, someone knocked on the door and stated that there was a delivery from Federal Express. Id. ¶ 11. Cruz opened the door slightly and stated that he had not ordered anything; however, while Cruz attempted to close the door, Officer Donnelly and other officers pushed their way into the apartment, threw Cruz to the ground, handcuffed him, and searched the apartment. Id. ¶¶ 12-13. Cruz remained handcuffed for approximately two hours, after which he was brought to the 46th Precinct and charged with criminal possession of a controlled substance. Id. ¶¶ 15-16. On October 4, 2012, the charges were dismissed by the District Attorney. Id. ¶ 17.
On March 26, 2015, Cruz filed the Complaint. Dkt. 1. The Complaint was brought under 42 U.S.C. §§ 1983 and 1988 for violations of Cruz's civil rights and the Constitutions of New York and the United States. Specifically, Cruz brought claims for (1) false imprisonment, (2) false arrest, (2A)
On July 13, 2015, defendants answered. On November 25, 2015, defendants moved under Rule 12(c) for judgment on the pleadings, partially dismissing the complaint against the City "on the grounds that plaintiff has failed to state a claim against the City of New York pursuant to § 1983," Dkt. 13, and filed a supporting memorandum of law, Dkt. 15 ("Defs. Br."). On December 7, 2015, Cruz filed a memorandum of law opposing this motion, Dkt. 16 ("Pl. Br."), and on December 14, defendants filed a reply, Dkt. 17 ("Defs. Reply").
Federal Rule of Civil Procedure 12(c) provides that "[a]fter the pleadings are closed — but early enough not to delay trial — a party may move for judgment on the pleadings." A motion for judgment on the pleadings is governed by "the same standard" as a motion to dismiss under Rule 12(b)(6). Hayden v. Paterson, 594 F.3d 150, 160 (2d Cir. 2010) (quoting Johnson v. Rowley, 569 F.3d 40, 43 (2d Cir. 2009) (per curiam)); accord L-7 Designs, Inc. v. Old Navy, LLC, 647 F.3d 419, 429 (2d Cir. 2011). Thus, on such a motion, the Court accepts all of the non-movant's factual allegations as true and draws all reasonable inferences in the non-movant's favor. Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007).
To survive a motion for judgment on the pleadings, a party must plead sufficient factual allegations "to state a claim for relief that is plausible on its face," id. at 570, meaning that the complaint must include "factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged," Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). Further, "[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice." Id. "A grant of a motion pursuant to Rule 12(c) is proper `if, from the pleadings, the moving party is entitled to judgment as a matter of law.'" Dargahi v. Honda Lease Trust, 370 Fed. App'x 172, 174 (2d Cir. 2010) (summary order) (quoting Burns Int'l Sec. Servs., Inc. v. Int'l Union, 47 F.3d 14, 16 (2d Cir. 1995) (per curiam)).
"On a 12(c) motion, the court considers `the complaint, the answer, any written documents attached to them, and any matter of which the court can take judicial notice for the factual background of the case.'" L-7 Designs, Inc., 647 F.3d at 422 (quoting Roberts v. Babkiewicz, 582 F.3d 418, 419 (2d Cir. 2009) (per curiam)). The Court may also review any document incorporated by reference in one of the pleadings. Sira v. Morton, 380 F.3d 57, 67 (2d Cir. 2004). Finally, the Court may consider a document not specifically incorporated by reference but on which the complaint relies and which is integral to it. See Chambers v. Time Warner, Inc., 282 F.3d 147, 153 (2d Cir. 2002).
"[T]o hold a city liable under § 1983 for the unconstitutional actions of its employees, a plaintiff is required to plead and prove three elements: (1) an official policy or custom that (2) causes the plaintiff to be subjected to (3) a denial of a constitutional right." Wray v. City of New York, 490 F.3d 189, 195 (2d Cir. 2007) (quoting Batista v. Rodriguez, 702 F.2d 393, 397 (2d Cir. 1983)) (internal quotation marks omitted).
There are four ways to establish the existence of an official policy or custom, the first element of a Monell claim. A plaintiff may plead that the constitutional violation was caused by:
Brandon v. City of New York, 705 F.Supp.2d 261, 276-77 (S.D.N.Y. 2010) (citations omitted); see also Spears v. City of New York, No. 10 Civ. 3461 (JG), 2012 WL 4793541, at *11 (E.D.N.Y. Oct. 9, 2012).
Plaintiffs alleging the existence of a municipal policy or custom often point to the filing of other complaints and/or lawsuits bringing similar claims. Courts considering Monell claims have assigned different levels of significance to the filing of prior lawsuits. Some have suggested that non-adjudicated claims are irrelevant. See Morris v. City of New York, No. 12 Civ. 3959 (JG), 2013 WL 5781672, at *11 (E.D.N.Y. Oct. 28, 2013) ("The fact that two of the defendants as well as a non-defendant supervising officer have had civil suits brought against them in the past that resulted in settlements is not even evidence of wrongdoing, let alone that the City has a custom or policy that fosters or results in wrongdoing."). But others have held that prior complaints are relevant insofar as they may put a municipality on notice of possible or actual constitutional violations. See Edwards v. City of New York, No. 14 Civ. 10058 (KBF), 2015 WL 5052637, at *6 n.3 (S.D.N.Y. Aug. 27, 2015) (noting that although "[i]t is certainly not always the case that the fact of a series of suits alleging similar claims supports a Monell claim . . . the point is one of notice").
The first element of a Monell claim is the existence of an official policy or custom. The Sixth Count of the Complaint alleges that the City is liable for the actions of the individual police officers because the officers' actions "were carried out by the aforementioned individual defendants in their capacities as police officers and officials pursuant to the customs, policies, usages, practices, procedures, and rules of [the City] and the New York City Police Department [(`N.Y.P.D.')], all under the supervision of ranking officers of said department." Compl. ¶ 52. Specifically, the customs alleged "include, but are not limited to, the following unconstitutional practices: a) fabricating evidence against innocent persons erroneously arrested; b) imprisoning innocent persons wrongfully apprehended; [and] c) [i]mprisoning innocent persons notwithstanding the existence of credible evidence which exonerates the accused of any criminal wrongdoing." Id. ¶ 53.
Putting aside non-cognizable conclusory statements, see Iqbal, 556 U.S. at 678, the Complaint principally supports its Monell claim by alleging that "unconstitutional customs and practices may be inferred from repeated instances of similar wrongful conduct." See Compl. ¶ 54. The Complaint therefore appears to allege the element of an official policy or custom on the theory of a consistent and widespread practice; the Complaint does not, in contrast, plead facts tending to suggest or support the existence of a formal policy endorsed by the City, an action taken by a government official with authority to make municipal policy, or of a failure by policymakers to provide adequate training or supervision.
Cruz's allegation of repeated instances of similar wrongful conduct are supported in the Complaint by citation to eight civil rights actions filed against the City in the Southern and Eastern Districts of New York. See id. Other than the case name and case number, the Complaint provides no information about the cases it cites, no description of evidence adduced in those cases, and no explanation of how the cases, individually or taken together, demonstrate a consistent and widespread practice sufficient to constitute an unlawful policy or custom. The Court, nonetheless, has reviewed the publicly available dockets sheets for the cases cited by Cruz,
The cases were filed between 2001 and 2006. All brought claims related to, inter alia, false arrest and malicious prosecution of the respective plaintiffs, who were arrested and charged, in all but one of the cases, with drug-related crimes.
In addition to claims against individual officers, all of the cases alleged municipal liability against the City of New York. However, in two cases, the claims against the City were dropped by the plaintiff before the case was resolved.
All of the cases cited settled short of adjudication on the merits. In each, the stipulation and order of settlement contained language to the effect that the settlement should not be deemed an admission of wrongdoing, and importantly, that "[n]othing contained herein shall be deemed to constitute a policy or practice of the City of New York or the New York City Police Department."
Cruz's allegations, relying on citations to these cases, fall far short of establishing a custom sufficient to support a Monell claim. To be sure, "an act performed pursuant to a `custom' that has not been formally approved by an appropriate decisionmaker may fairly subject a municipality to liability on the theory that the relevant practice is so widespread as to have the force of law." Bd. of Cty. Comm'rs of Bryan Cty. v. Brown, 520 U.S. 397, 404 (1997). But the lawsuits cited by Cruz, without much more, do not plausibly suggest a "practice . . . so widespread as to have the force of law." Id.
Judge Karas's recent decision in Tieman v. City of Newburgh, No. 13 Civ. 4178 (KMK), 2015 WL 1379652 (S.D.N.Y. Mar. 26, 2015), is instructive. In Tieman, the complaint alleged that the City of Newburgh "`has a policy or practice of using excessive force when effectuating arrests, and fails to train and/or discipline its employees to prevent violations of arrestee's [sic] constitutional rights.'" Id. at *14. The complaint cited what it described as "an extensive history of lawsuits and other complaints," alleging that at least nine excessive-force suits were filed against the city in the preceding five years — including five that involved, as the plaintiff's case did, allegations of unnecessary dog bites. Id. at *15. It further alleged that the City was on notice of the excessive force problem because of comments from citizens at public forums and because of a consulting group's report on the police department's practices. Id. at *3. Judge Karas, however, held that these pleadings were insufficient to suggest a widespread custom or practice. Id. at *17. He noted that none of the lawsuits cited by the plaintiff had "result[ed] in an adjudication of liability." Id. (alteration in original) (quoting Walker v. City of New York, No. 12 Civ. 5902 (PAC), 2014 WL 1259618, at *3 (S.D.N.Y. Mar. 18, 2014)). "Simply put," Judge Karas concluded, "the fact that there were allegations of thirteen instances of excessive force during arrests over four [or five] years (none of which involved findings or admissions of culpability) during which hundreds, if not thousands, of arrests were made does not plausibly demonstrate that the use of excessive force during arrest was so frequent and pervasive to constitute a custom." Id.
The same logic is decisive here. None of the lawsuits cited resulted in an adjudication or admission of liability and the number of suits does not suggest a pervasive illegal practice. See Walker, 2014 WL 1259618, at *3 ("The paltry number of complaints (none resulting in an adjudication of liability), spread over a period so long in a city so large, hardly suggests the frequency or pervasiveness of the purported custom that is required to state a Monell claim."). Indeed, Cruz's claim of a municipal "custom" is even weaker than in Tieman. While the length of time spanned by the cited lawsuits (six years) is about the same as in Tieman, there is a significant gap — nine or more years — between the time the cited cases were filed and Cruz's initiating his suit. Furthermore, eight cases cited from a municipality (New York) far bigger than Newburgh, makes the number of cited cases particularly inadequate to demonstrate plausibly a municipal custom. See also Calderon v. City of New York, No. 14 Civ. 1082 (PAE), 2015 WL 5802843, at *15 (S.D.N.Y. Oct. 5, 2015) (dismissing a Monell claim that cited 16 cases against the City), reconsideration in part granted on other grounds, 2015 WL 6143711 (S.D.N.Y. Oct. 19, 2015).
The Court therefore holds that Cruz has failed to plausibly plead that the City has an official policy or custom, as demonstrated by a widespread and consistent practice, which led to the alleged violations of Cruz's federally protected rights.
Cruz's arguments against dismissal are easily rejected. First, Cruz attempts to re-characterize the relevant "policy and procedure" as the execution of "controlled deliveries of . . . narcotics in packages delivered to various apartments." Pl. Br. 6.
Second, Askins v. Doe No. 1, 727 F.3d 248 (2d Cir. 2013), on which Cruz relies, Pl. Br. 6-7, does not rescue Cruz's claim. "Establishing the liability of the municipality requires a showing that the plaintiff suffered a tort in violation of federal law committed by the municipal actors and, in addition, that their commission of the tort resulted from a custom or policy of the municipality." Id. at 253 (emphasis added). The key issue in Askins was whether a claim for municipal liability under § 1983 could be maintained where the plaintiff did not procure a judgment, or even could not pursue a claim, against the particular municipal actors who committed the alleged federal law tort. See id. at 252-55. In a portion of the opinion highlighted by Cruz, the Second Circuit ruled:
Id. at 254.
Cruz does not explain why this passage supports his opposition to the present motion. If his intent is to discount the significance of the fact that the cases he cites in support of his Monell claim all settled, his reliance is in error. The above passage holds that a plaintiff need not adjudicate a claim, or recover, against the particular municipal actor alleged to have committed the federal law tort to establish liability against the municipality. That is a separate issue from whether a plaintiff can allege specific facts, such as prior lawsuits, that make plausible the existence of a widespread and consistent practice — equivalent to a custom or policy — that caused the municipal actor's federal law tort. Where a prior lawsuit against a municipality or municipal actor was settled — especially where the settlement contains a denial of wrongdoing — and did not produce an adjudication establishing liability or wrongdoing, the prior lawsuit does not demonstrate that the prior unlawful action took place, and therefore is less able to support the allegation that there is a widespread practice or custom that violates federal law. Here, Cruz fails to cite to even a single instance in which the City, or an individual acting on its behalf, has been found to have committed a federal law tort along the lines alleged by Cruz. This significantly undermines the plausibility of his contention that the officers here were acting pursuant to an extant illegal practice, policy, or custom.
Third, and finally, Cruz argues that the motion should not be granted because the doctrine of qualified immunity does not apply to municipalities. Pl. Br. 7-8. However, defendants' motion does not invoke or rely on qualified immunity, but rather Cruz's failure to state a claim against the City under § 1983.
For the foregoing reasons, the Court grants defendants' motion for partial judgment on the pleadings and dismisses, with prejudice, the Sixth Count of the Complaint for municipal liability against the City. The Clerk of Court is directed to terminate the motion pending at docket number 13.
SO ORDERED.