Hermo v. The City of New York
1:19-cv-10471
S.D.N.Y.Dec 13, 2019Background:
- Pro se plaintiff Anthony Hermo filed an IFP civil rights action against the City of New York, the NYC Department of Correction (DOC), and DOC employee Laura Mello, alleging bias in the psychological portion of an employment/exam process.
- Complaint alleges he passed written, physical, and drug tests but failed the psychological exam, and that a DOC "profiler" knew of his learning disability and mental illness and acted with bias.
- Court found the complaint unclear on who administered the test, when or where it occurred, and what specific actions violated federal rights.
- The Court dismissed claims against the DOC because municipal agencies are not suable entities separate from the City of New York; it treated claims against the City and Mello as 42 U.S.C. § 1983 claims.
- The Court declined to dismiss the City and Mello outright, granting Hermo 30 days' leave to file an amended complaint to plead Monell-type municipal liability and to supply factual detail (who, what, when, where, why).
- Plaintiff's request for court-appointed counsel was denied without prejudice; the Court certified any appeal would not be in good faith for IFP purposes.
Issues:
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Is DOC a proper defendant? | Hermo sued DOC as a defendant for the exam acts. | DOC is an agency of the City and not a suable legal entity. | DOC dismissed as improper defendant. |
| Do the pleaded facts state a §1983 claim against City/Mello? | Hermo alleges bias/failure to account for disabilities in the psychological test. | Complaint lacks facts linking defendants to a constitutional violation or showing a municipal policy/custom causing the violation. | Complaint insufficient but leave to amend granted (not futile). |
| Should the court appoint pro bono counsel? | Hermo requested counsel due to indigency and difficulty presenting claims. | No party argument; Court evaluates Cooper/Hodge factors. | Denied without prejudice to renewal later. |
| Is an IFP appeal permitted as taken in good faith? | (Implicit) Hermo may appeal. | Court reviewed for good-faith standard. | Court certifies appeal not in good faith; IFP denied for appeal. |
Key Cases Cited
- Monell v. Dep't of Social Servs. of City of New York, 436 U.S. 658 (municipal liability under § 1983 requires a policy, custom, or practice causing the violation)
- Ashcroft v. Iqbal, 556 U.S. 662 (pleading standard: separate legal conclusions from well-pleaded facts; plausibility required)
- Bell Atl. Corp. v. Twombly, 550 U.S. 544 (plausibility pleading standard for complaints)
- West v. Atkins, 487 U.S. 42 (§ 1983 covers violations by persons acting under color of state law)
- Connick v. Thompson, 563 U.S. 51 (municipal liability requires causal link between policy and constitutional deprivation)
- Jenkins v. City of New York, 478 F.3d 76 (municipal agencies generally are not suable separate entities)