Bennett v. City of New York
425 F. App'x 79
2d Cir.
2011
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Anthony BENNETT, Plaintiff-Appellant, v. CITY OF NEW YORK, City of New York Department of Corrections, John Doe #1, Defendants-Appellees.

No. 09-5276-pr.

United States Court of Appeals, Second Circuit.

July 7, 2011.

79-82

less than 150 KG of Cocaine.” Amendment 706 reduces by two the offense levels under U.S.S.G. § 2D1.1 applicable to crack cocaine offenses. See . The offenses under Section 2D1.1 that pertain to cocaine offenses are, by their terms, unaffected by the crack cocaine amendments. McCreary ultimately pleaded guilty to a cocaine offense and was sentenced pursuant to Section 2D1.1 accordingly. McCreary‘s sentence was thus based only on the amount of cocaine attributable to him. See (“[T]o determine which Guideline a defendant‘s sentence is ‘based on’ we look only to the end result of the overall calculus ... and not the ‘interim’ steps taken by the District Court.“).

Given that McCreary agreed to a sentencing range that was based on relevant conduct expressed in terms of cocaine, and not cocaine base, McCreary‘s sentence was not technically “based on a sentencing range that was subsequently lowered by the Sentencing Commission.” . The district court was correct in determining that McCreary was ineligible for a reduction in sentence under the crack cocaine amendments, pursuant to Section 3582(c).

Accordingly, the judgment of the district court hereby is AFFIRMED.

Jonathan H. Romberg (Kathleen Gallagher, Kimia Mousavi, on brief) Seton Hall University School of Law Center for Social Justice, Newark, NJ, for Appellant.

Sharyn Michele Rootenberg (Morgan D. Kuntz, Chaim E. Bryski, on brief), for Michael A. Cardozo, Corporation Counsel, City of New York New York, NY, for Appellees.*

PRESENT: DENNIS JACOBS, Chief Judge, DEBRA ANN LIVINGSTON, Circuit Judge and JED S. RAKOFF,** District Judge.

SUMMARY ORDER

Anthony Bennett appeals from a judgment by the district court dismissing with prejudice his § 1983 claims against all three defendants. We assume the parties’ familiarity with the underlying facts, the procedural history, and the issues presented for review.

We review de novo a district court‘s dismissal of a complaint for failure to state a claim, “assuming all well-pleaded, non-conclusory factual allegations in the complaint to be true.” . To 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.” (internal quotation marks omitted). A “document filed pro se is to be liberally construed and a pro se complaint, however inartfully pleaded, must be held to less stringent standards than formal pleadings drafted by lawyers.” (internal quotation marks omitted). Such liberal construction is especially appropriate where, as here, the plaintiff is an inmate using a boilerplate “fill in the blanks” complaint provided by the court.

To state a viable claim against an individual under 42 U.S.C. § 1983, the plaintiff must plausibly allege that the defendant, while acting under the color of law, “deprived the plaintiff of a right guaranteed by the constitution or laws of the United States.” . It is uncontested that the prison guard, John Doe #1, was acting under the color of law when he strip searched Bennett. The district court concluded that Bennett‘s complaint failed to raise a reasonable inference that John Doe #1 violated Bennett‘s constitutional rights. We disagree.

The district court concluded that Bennett‘s complaint failed to state a claim against John Doe #1 for three reasons: (1) It did not specify which of Bennett‘s constitutional rights were violated; (2) It did not allege that John Doe #1 lacked reasonable suspicion to strip search Bennett; and (3) It did not allege that John Doe #1 intentionally violated the Fourth Amendment. None of these reasons is persuasive. The complaint‘s allegation that Doe Guard #1 violated the McBean Settlement—the result of litigation over New York City‘s unconstitutional policy of strip searching misdemeanants without reasonable suspicion—creates the reasonable inference that Bennett is claiming a violation of his Fourth Amendment rights and that he is alleging the search lacked reasonable suspicion. (holding that strip search of misdemeanants upon intake to correctional facilities without reasonable suspicion violates the Fourth Amendment). Similarly, while Bennett does not specifically allege that John Doe #1 acted intentionally, such allegation is reasonably implied by the complaint‘s other allegations; Bennett‘s failure to specifically allege John Doe #1‘s mental state is insufficient to render deficient a pro se complaint set-out on a government-furnished form that does not ask about mental state. We therefore conclude that Bennett‘s complaint states a viable § 1983 claim against John Doe #1, and we reverse the district court‘s dismissal of Bennett‘s complaint as to John Doe #1.

To state a viable claim of municipal liability under 42 U.S.C. § 1983, a plaintiff must plausibly allege that the violation of his constitutional rights was caused by an official policy or custom of the municipality. . An official policy may be a formal written policy or “deliberate indifference” in the face of “a pattern of misconduct.” . The district court concluded that Bennett‘s complaint failed to plausibly allege any such policy, custom, or deliberate indifference. We agree. Bennett‘s complaint, even construed liberally, never alleges any facts from which a court could reasonably infer that New York City had any pattern, policy, or custom of violating misdemeanants’ Fourth Amendment rights. Nor does the complaint contain facts from which a court could reasonably infer deliberate indifference by New York City: Other than the inclusion of “New York City” in the caption, Bennett‘s complaint does not mention New York at all. We therefore affirm the district court‘s dismissal of Bennett‘s complaint as to New York City.

On appeal, Bennett concedes that the district court correctly dismissed his complaint as to the New York City Department of Corrections (“DOC“). We therefore affirm this dismissal.

The district court dismissed Bennett‘s claims against all the defendants on Rule 12(b)(6) grounds, without considering the impact, if any, of the Prison Litigation Reform Act (“PLRA“). 42 U.S.C. § 1997e. Because the district court did not reach the PLRA issue, we likewise decline to reach it.

Finally, we review for abuse of discretion a district court‘s decision whether to grant leave to amend a deficient complaint, and it is within a district court‘s discretion to deny leave to amend implicitly by not addressing the issue and simply dismissing the complaint with prejudice. . “[W]here amendment would be futile, denial of leave to amend is proper.” Given that Bennett already received one opportunity to amend his complaint, that he concedes he cannot sue the DOC, that he already states a valid § 1983 claim against John Doe #1, and that nothing in his complaint suggests he could show the type of policy or deliberate indifference necessary to state a valid claim against New York City, it was reasonable for the district court to conclude that a second leave to amend would be futile. We therefore affirm the district court‘s implicit denial of leave to amend the complaint.

We hereby VACATE in part the judgment of the district court, REVERSE the dismissal of the complaint as to John Doe #1, AFFIRM the dismissal of the complaint as to the City of New York and the New York City Department of Corrections, AFFIRM the denial of leave to amend the complaint, and REMAND the case to the district court for proceedings consistent with this order.

Notes

*
The Clerk of Court is respectfully instructed to amend the official case caption as shown above.
**
The Honorable Jed S. Rakoff, of the United States District Court for the Southern District of New York, sitting by designation.
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