Berg v. Kelly, 343 F. Supp. 3d 419

Background

Plaintiffs were Occupy Wall Street protesters detained by NYPD during President Obama's November 30, 2011 visit and allege constitutional violations from being confined in a press "pen."
Plaintiffs sued NYPD officers (including Kelly and Esposito) in their individual and official capacities in an amended complaint filed after lengthy discovery; the City of New York was not named as a defendant.
Defendants moved for summary judgment; plaintiffs in opposition first raised Monell/supervisory municipal liability theories, arguing Kelly and Esposito were liable in their official capacities.
The district court (Griesa) granted summary judgment in part, dismissing claims against Kelly and Esposito for lack of personal involvement and finding plaintiffs had failed to plead a Monell claim.
The Second Circuit reversed the district court’s denial of qualified immunity for the officers and remanded with instructions to dismiss the complaint with prejudice; a footnote clarified some district-court rulings were not before the Circuit.
Plaintiffs moved for reconsideration of the district-court dismissal of claims against Kelly and Esposito; the magistrate judge recommended denying reconsideration because plaintiffs never pled a Monell claim or gave defendants notice of such a theory.

Issues

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether plaintiffs stated a Monell municipal-liability claim	Plaintiffs contend suing officials in official capacity puts the City on notice and supports Monell liability	Defendants say plaintiffs never pled Monell; raising it at summary judgment was an "unpled" surprise theory	Court held plaintiffs did not plead a Monell claim and belatedly asserting it was improper; no clear error in dismissal
Whether discovery or submitted proof gave defendants notice of a Monell claim	Plaintiffs point to testimony (Inspector Hart) and contend merits/sufficiency of proof matter at summary judgment	Defendants note plaintiffs took no Monell-related discovery and complaints alleged violation of NYPD policy (Stauber) rather than existence of an unconstitutional City policy	Court held the record did not put defendants on notice of a Monell claim; discovery did not cure pleading defect
Whether the mandate from the Second Circuit required revisiting district-court rulings on Monell or on dismissal of Kelly/Esposito	Plaintiffs sought reconsideration post-mandate	Defendants rely on mandate rule and Circuit's footnote limiting issues on appeal	Court construed the Second Circuit as limiting dismissal instruction to federal claims in the complaint and declined to reopen pleaading issues
Whether relief by amendment or reconsideration is warranted now	Plaintiffs sought reconsideration (not amendment) to correct alleged error/manifest injustice	Defendants argued late amendment would be prejudicial and plaintiffs cannot raise new theories on reconsideration	Court denied reconsideration; amendment would be untimely and prejudicial; motion is not a vehicle to relitigate or add new theories

Key Cases Cited

Monell v. Dep't of Soc. Servs., 436 U.S. 658 (municipalities liable under §1983 only for official policy or custom)
Kentucky v. Graham, 473 U.S. 159 (1985) (official-capacity suit is against the entity, not the official personally)
Roe v. City of Waterbury, 542 F.3d 31 (2d Cir. 2008) (elements required for Monell claim)
Bd. of Cnty. Comm'rs v. Brown, 520 U.S. 397 (1997) (municipal deliberate conduct must be the moving force behind injury)
City of Okla. City v. Tuttle, 471 U.S. 808 (1985) (single incident generally insufficient for Monell liability)
Burrell v. United States, 467 F.3d 160 (2d Cir. 2006) (mandate rule — district court must follow appellate decisions)
Kolel Beth Yechiel Mechil of Tartikov, Inc. v. YLL Irrevocable Tr., 729 F.3d 99 (2d Cir. 2013) (standards for granting reconsideration)
Shrader v. CSX Transp., Inc., 70 F.3d 255 (2d Cir. 1995) (motion for reconsideration denied unless court overlooked controlling decisions or data)