MALIK MCLEOD, Plaintiff, -against- YAHAIRA LLANO, JEAN PRINSTON, MADHU SHIBU, CITY OF NEW YORK, and JOHN AND JANE DOE 1 through 10, individually and in their official capacities (the names John and Jane Doe being fictitious, as the true names are presently unknown), Defendants, YAHAIRA LLANO, Defendant/Third-Party Plaintiff, -against- THE CITY OF NEW YORK, Third-Party Defendant.
17-cv-6062 (ARR) (SMG)
UNITED STATES DISTRICT COURT EASTERN DISTRICT OF NEW YORK
March 12, 2019
ROSS, United States District Judge
Not for electronic or print publication
ROSS, United States District Judge:
Plaintiff, Malik McLeod, brings this civil-rights action under
FACTUAL AND PROCEDURAL BACKGROUND
For the purposes of the City defendants’ motion to dismiss McLeod‘s claims, I assume the truth of the factual allegations contained in McLeod‘s complaint.2 On the evening of April 13, 2015, Officers Llano and Prinston approached McLeod, who was “lawfully and innocently present at 272 Pennsylvania Avenue in Brooklyn, New York.” Second Am. Compl. ¶¶ 17–18, ECF No. 38 (“SAC“). The officers asked McLeod to produce identification. Id. ¶ 19. While McLeod was retrieving his identification, Officer Llano “grabbed Plaintiff by the shoulder, and closed fist punched Plaintiff in the face, causing substantial physical pain and bruising to Plaintiff[‘s] face.” Id. ¶¶ 20–21. According to McLeod, Officer Prinston “observed Defendant Llano‘s growing hostility toward Plaintiff and also observed Defendant Llano make a fist, cock her arm, ready to, and, in fact, strike Plaintiff, but did nothing to stop said conduct from occurring despite being aware of Defendant Llano‘s past [and] her intent.” Id. ¶ 23. McLeod
While McLeod was being transported, “he repeatedly complained of being punched by Defendant Llano.” Id. ¶ 31. McLeod specifically complained to Lieutenant Madhu about Officer Llano‘s conduct, but Lieutenant Madhu “failed to investigate and/or report said misconduct.” Id. ¶ 32. McLeod contends that Lieutenant Madhu and the City “knew or should have had reason to know of Defendant Llano‘s temperament and propensity for violence.” Id. ¶ 34; see also id. ¶ 83 (“It is believed that Defendants the City of New York and New York City Police, as well as Defendant Madhu received complaints about the conduct of Defendant Llano and Defendants and other officers in the 75th precinct, knew about past complaints, aberrant behavior, and disciplinary infractions, or, in the exercise of due diligence, would have perceived that these officers had conduct and disciplinary problems . . . .“). Officer Prinston also failed to report Officer Llano‘s misconduct. Id. ¶ 37. Further, Officer Prinston attempted to protect Officer Llano by, inter alia, (1) reporting “dishonestly” that McLeod had attempted to flee from the scene, (2) claiming that Officer Llano struck McLeod because he was resisting arrest, and (3) “providing false statements to the Civilian Complaint Review Board” and “at a subsequent Department Trial” against Officer Llano. Id. ¶¶ 38–44. No disciplinary action was taken against Officers Prinston or Llano for the alleged cover-up. Id. ¶ 45.
At his arraignment, McLeod pled guilty to disorderly conduct. Id. ¶ 46. On October 17, 2017, McLeod initiated this action against Officer Llano and “John and Jane Doe 1 through 10” (ECF No. 1). Officer Llano answered McLeod‘s complaint on February 7, 2018 (ECF No. 13), and she filed an amended answer on March 8, 2018 (ECF No. 17), which included a third-party
STANDARD OF REVIEW
“To survive a motion to dismiss, a complaint must contain sufficient factual matter . . . to state a claim to relief that is plausible on its face.” County of Erie v. Colgan Air, Inc., 711 F.3d 147, 149 (2d Cir. 2013) (quoting Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)). When reviewing a defendant‘s motion to dismiss, the court “must accept as true all of the factual allegations contained in the complaint.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 572 (2007) (quoting Swierkiewicz v. Sorema N. A., 534 U.S. 506, 508 n.1 (2002)). As long as the plaintiff alleges sufficient factual content to allow the court “to draw the reasonable inference that the defendant is liable for the misconduct alleged,” the motion will be denied. Iqbal, 556 U.S. at 678. However, the court is not required to accept as true conclusory allegations or “formulaic recitation[s] of the elements of a cause of action.” Twombly, 550 U.S. at 555. Likewise, a complaint‘s “[f]actual allegations must be enough to raise a right to relief above the speculative level.” Id. A plaintiff must assert “specific facts or circumstances” in support of his claims; “[a] complaint which [is] . . . unsupported by factual assertions fails even the liberal standard of Rule 12(b)(6).” De Jesus v. Sears, Roebuck & Co., 87 F.3d 65, 70 (2d Cir. 1996) (quoting Palda v. Gen. Dynamics Corp., 47 F.3d 872, 875 (7th Cir. 1995)).
DISCUSSION
I. The City defendants’ motion to dismiss McLeod‘s failure to intervene claim against Officer Prinston is granted because Officer Prinston did not have a realistic opportunity to prevent the assault.
“It is widely recognized that all law enforcement officials have an affirmative duty to intervene to protect the constitutional rights of citizens from infringement by other law
Here, the City defendants argue that McLeod “cannot plausibly suggest that Officer Prinston had a reasonable opportunity to intervene” because McLeod alleges that “Officer Llano punched him a single time—an act that takes, at most, a matter of seconds.” City Defs.’ Br. 6. McLeod first claims that Officer Prinston had a duty to intercede before the assault occurred because “Defendant Prinston was aware of Defendant Llano‘s propensity for violence toward citizens,” and “[f]ully aware of [Llano‘s] past, Defendant Prinston . . . observed Defendant
The facts as alleged in McLeod‘s SAC do not demonstrate that Officer Prinston had a realistic opportunity to prevent Officer Llano‘s use of force. McLeod suggests that Officer Prinston had such an opportunity when Officer Llano “grabbed [McLeod] by the shoulder,” when she “raised and cocked her arm,” and “when she began to . . . propel her arm forward toward [McLeod‘s] face.” McLeod Opp‘n 7–8 (citing SAC ¶ 23). However, it is well-established that an officer is not liable for failing to intervene if the use of force is “sudden and brief.” Cusamano v. Sobek, 604 F. Supp. 2d 416, 428 n.9 (N.D.N.Y. 2009) (quoting Brown v. Mravintz, No. 04-CV-30J, 2006 WL 3717417, at *6 (W.D. Pa. Dec. 14, 2006)). In O‘Neill v. Krzeminski, for example, the Second Circuit held that an officer could not be held liable for failing to intervene in a beating because “[t]he three blows were struck in such rapid succession that [the defendant] had no realistic opportunity to attempt to prevent them.” 839 F.2d 9, 11 (2d Cir. 1988). The court held that the beating was too short “to support a conclusion that an officer who stood by without trying to assist the victim became a tacit collaborator.” Id. at 11–12. Thus, “[w]here the alleged force consists of a single push or a ‘rapid succession’ of blows, courts have found that the officer did not have a realistic opportunity to intervene.” Elufe v. Aylward, No. 09-CV-458 (KAM)(LB), 2011 WL 477685, at *9 (E.D.N.Y. Feb. 4, 2011) (citing O‘Neill, 839 F.2d at 11–12)); see also Jackson v. City of White Plains, No. 05-cv-0491 (NSR), 2015 WL 4739762, at *8 (S.D.N.Y. Aug. 7, 2015) (holding that a police officer who was in close proximity to the plaintiff did not have a realistic opportunity to intervene where another officer “punched [the plaintiff], spoke one short sentence, and punched him again“); Sash v. United States, 674 F. Supp. 2d 531, 545 (S.D.N.Y. 2009) (finding that the defendant was not liable for failing to intervene where “the entire incident took less than thirty seconds“); Mowry v. Noone, No. 02-CV-6257FE, 2004 WL 2202645, at *4 (W.D.N.Y. Sept. 30, 2004) (reasoning that the defendant did not have sufficient time to intervene when the alleged use of force was “a single kick to the head“). In this case, there is no dispute that Officer Llano‘s use of force constituted a single punch, despite McLeod‘s attempt to describe it as a series of actions. See SAC ¶ 23 (“Defendant Prinston . . . observed Defendant Llano make a fist, cock her arm, ready to, and, in fact, strike Plaintiff.“). This use of force is simply too “sudden and brief” to give rise to failure to intervene liability. Cusamano, 604 F. Supp. 2d at 428 n.9. Accordingly, McLeod‘s claim against Officer Prinston is dismissed. See also Jean-Laurent v. Wilkerson, 438 F. Supp. 2d 318, 327 (S.D.N.Y. 2006) (granting a motion to dismiss plaintiff‘s failure to intervene claims where the alleged use of force was too rapid for the defendants to have a realistic opportunity to intervene), aff‘d in relevant part, 461 F. App‘x 18 (2d Cir. 2012); Johnson ex rel. Johnson v. County of Nassau, No. 09-CV-4746(JS)(MLO), 2010 WL 3852032, at *3–4 (E.D.N.Y. Sept. 27, 2010) (same).
II. The City defendants’ motion to dismiss McLeod‘s failure to supervise claim against Lieutenant Madhu is granted because McLeod has not adequately pleaded supervisory liability.
To state a claim for supervisory liability in a § 1983 action, a plaintiff must allege that the supervisory defendant was “personally involved” in the violation by showing that: “(1) the official participated directly in the violation; (2) the official, after learning of the violation, failed
A. Failure to Remedy the Wrong
McLeod argues that Lieutenant Madhu was “personally involved in the deprivation of Plaintiff‘s constitutionally protected interests” because, “[d]espite having been apprised of Defendant Llano‘s tendency to utilize excessive force, . . . Defendant Madhu did nothing to end the practice.” McLeod Opp‘n 11. To the extent that McLeod‘s personal involvement claim is based on Lieutenant Madhu‘s “fail[ure] to investigate and/or report” Office Llano‘s “striking” of McLeod, SAC ¶ 32, this argument fails. See Hernandez v. Daniels, No. 14-cv-5910 (AJN), 2016 U.S. Dist. LEXIS 125659, at *8 (S.D.N.Y. Sept. 14, 2016) (“District courts in this Circuit have repeatedly held that a supervisor who fails to respond to or investigate a report of a constitutional violation does not become ‘personally involved’ for purposes of supervisor liability unless the constitutional violation is ongoing.” (emphasis added)). McLeod‘s SAC also falls short of alleging that Lieutenant Madhu was aware of an ongoing constitutional violation, because the
B. Gross Negligence
“The standard of gross negligence is satisfied where the plaintiff establishes that the defendant-supervisor was aware of a subordinate‘s prior substantial misconduct but failed to take appropriate action to prevent future similar misconduct before the plaintiff was eventually injured.” Raspardo v. Carlone, 770 F.3d 97, 117 (2d Cir. 2014). McLeod alleges that Lieutenant Madhu was grossly negligent because he “knew or should have had reason to know of Defendant Llano‘s temperament and propensity for violence.” SAC ¶ 34; see also id. ¶ 83 (“It is believed that . . . Defendant Madhu received complaints about the conduct of Defendant Llano and Defendants and other officers in the 75th precinct, knew about past complaints, aberrant behavior, and disciplinary infractions, or, in the exercise of due diligence, would have perceived that these officers had conduct and disciplinary problems that posed a pervasive and unreasonable risk of harm to Plaintiff.“). “[V]ague and conclusory allegation[s] . . . do[] not suffice to state a claim for supervisory liability.” Pane v. Town of Greenburgh, No. 07 Civ. 3216 (LMS), 2010 WL 11464846, at *9 n.7 (S.D.N.Y. July 19, 2010), motion for reconsideration granted in non-pertinent part by 2010 WL 11464845 (S.D.N.Y. Nov. 24, 2010); see also Iqbal, 556 U.S. at 678. McLeod‘s statements regarding Lieutenant Madhu‘s knowledge are the type of conclusory allegations that fall short of stating a claim for relief. See Gantt v. Ferrara, No. 15-CV-7661 (KMK), 2018 WL 4636991, at *7 (S.D.N.Y. Sep. 27, 2018) (finding plaintiff‘s allegation that the supervisory defendant had “knowledge of [his subordinate‘s] prior use of excessive force” because of “civil complaints and lawsuits” insufficient to state a claim for
C. Deliberate Indifference
“In order for a deliberate indifference claim to be viable, a plaintiff must allege that the supervisor was aware of facts from which the inference could be drawn that a substantial risk of serious harm existed.” Stamile v. County of Nassau, No. CV 10-2632 (AKT), 2014 U.S. Dist. LEXIS 39320, at *16 (E.D.N.Y. Mar. 25, 2014). McLeod‘s deliberate indifference claim rests on the same allegations as his gross negligence claim, i.e., that Lieutenant Madhu was aware of Officer Llano‘s propensity to use excessive force and failed to take action. See McLeod Opp‘n 12–13. McLeod‘s deliberate indifference claim therefore fails for the same reasons as his gross negligence claim. Thus, McLeod‘s supervisory liability claim against Lieutenant Madhu is dismissed.
III. The City‘s motion to dismiss the § 1983 claims against it is granted because the factual allegations in plaintiff‘s complaint do not plausibly allege a Monell claim.
In order to sustain a § 1983 claim against a municipal defendant, a plaintiff must allege facts sufficient to show the existence of an official policy or custom and a direct causal
A. Widespread Practice
McLeod claims that the City developed a widespread practice in which “officers would hide a fellow officer‘s misconduct and then not be held to account for their deceit.” McLeod Opp‘n 14. As evidence, McLeod first points to the incident described in the SAC, i.e., that “after an exercise of excessive force by Defendant Llano, Defendant officers intentionally and repeatedly made false statements in their paperwork, in connection with a subsequent investigation, and at Departmental Trial yet suffered no discipline, in contravention of [Patrol Guide] § 203-08, a pattern which was the driving force behind Plaintiff‘s own constitutional violation and the next citizen‘s violations.” Id. (citing SAC ¶¶ 45, 66). The case law is clear, however, that “a single incident alleged in a complaint, especially if it involved only actors below the policy-making level, does not suffice to show a municipal policy.” Ricciuti v. N.Y.C. Transit Auth., 941 F.2d 119, 123 (2d Cir. 1991); see also City of Oklahoma City v. Tuttle, 471 U.S. 808, 823–24 (1985) (plurality opinion) (“Proof of a single incident of unconstitutional
McLeod then suggests that he has sufficiently pleaded the existence of a widespread practice because the SAC “provides examples of similar and repeated occurrences by including government reports,” including an annual report by the Commission to Combat Police Corruption, which “points out the City Defendant[s‘] need to address those who practice deceit or cover for those who do.” McLeod Opp‘n 14 (citing SAC ¶ 69). “‘Research reports may be used to bolster Monell claims, but only if those reports are sufficiently connected to the specific facts of the case’ and are of relatively recent vintage.” Isaac v. City of New York, No. 16-CV-4729 (KAM), 2018 U.S. Dist. LEXIS 132995, at *51 (E.D.N.Y. Aug. 6, 2018) (quoting Gomez v. City of New York, No. 16-CV-1274 (NGG) (LB), 2017 WL 1034690, at *11 (E.D.N.Y. Mar. 16, 2017)). In this case, the SAC does not include any factual allegations regarding the “similar and repeated occurrences” supposedly contained in the government reports. McLeod Opp‘n 14. McLeod has therefore failed to sufficiently connect the reports to his specific allegations. Accordingly, his reliance on the reports is unavailing, and his claim that “police officers of the City of New York have for years engaged in a pattern and practice of actively and passively covering up the misconduct of fellow officers by failing to come forward or failing to accurately
B. Failure to Train or Supervise
McLeod‘s failure to train or supervise claim is based on two alleged policies: “(1) a failure to punish those who are intentionally deceitful in disregard of official policy, and (2) a tacit allowance . . . of those who perpetrate brutality.” McLeod Opp‘n 16. To prevail on a Monell claim based on a municipality‘s failure to train, supervise, or discipline its employees, a plaintiff must show that the failure “amounts to deliberate indifference to the rights of persons with whom [municipal employees] will come into contact.” City of Canton v. Harris, 489 U.S. 378, 388 (1989); see also Triano v. Town of Harrison, 895 F. Supp. 2d 526, 534 (S.D.N.Y. 2012). Deliberate indifference “is a stringent standard of fault, requiring proof that a municipal actor disregarded a known or obvious consequence of his action.” Connick v. Thompson, 563 U.S. 51, 61 (2011) (quoting Bd. of Cty. Comm‘rs v. Brown, 520 U.S. 397, 410 (1997)). “Thus, when city policymakers are on actual or constructive notice that a particular omission in their training program causes city employees to violate citizens’ constitutional rights, the city may be deemed deliberately indifferent if the policymakers choose to retain that program.” Id. at 61 (citing Brown, 520 U.S. at 407). As a result, “[a] pattern of similar constitutional violations by untrained employees is ‘ordinarily necessary’ to demonstrate deliberate indifference for purposes of failure to train.” Id. at 62 (quoting Brown, 520 U.S. at 409). Likewise, a failure to supervise or discipline claim is premised on an allegation that the “need for more or better supervision . . . was
McLeod fails to allege facts that demonstrate a failure to train or supervise. McLeod argues that the first requirement is met because “City Defendant knew to a moral certainty an offending officer would utilize an excessive amount of force in front of another witnessing officer and then that officer would be faced with the decision to speak out or remain silent.” McLeod Opp‘n 16 (citing SAC ¶¶ 63–64). To support his claim of alleged knowledge, McLeod cites to the 1994 Mollen Commission report, which found that a “tolerance [for brutality], or willful blindness, extends to supervisors as well [as supervisees]. . . . because many supervisors share the perception that nothing is really wrong with a bit of unnecessary force and because they believe that this is the only way to fight crime today.” SAC ¶ 63 (quoting Mollen Commission Report, at 49). McLeod then argues that he has satisfied the second requirement, i.e., a history of employees mishandling the situation, by citing to the Commission to Combat Police Corruption report, which reveals “a history of witnessing officers choosing to remain silent when they had
Additionally, McLeod fails to point to a “specific deficiency” in the City‘s training programs that could plausibly have caused the alleged constitutional violations. Following Twombly and Iqbal, courts require that plaintiffs point to a “specific deficiency in the municipality‘s training.” Tieman, 2015 WL 1379652, at *22; see also Simms v. City of New York, 480 F. App‘x 627, 631 n.4 (2d Cir. 2012) (summary order) (“While it may be true that § 1983 plaintiffs cannot be expected to know the details of a municipality‘s training programs prior to discovery, this does not relieve them of their obligation under Iqbal to plead a facially plausible claim.“) (citation omitted)). McLeod alleges that the City inadequately supervised and disciplined its officers on the “use of force, failure to report, and provi[sion of] false statement[s],” as well as inadequately investigated civilian complaints of police misconduct. SAC ¶¶ 60–61. These “unsupported conclusory allegation[s]” are insufficient to demonstrate deliberate indifference. See Johnson v. City of New York, No. 06 CV 09426, 2011 WL 666161, at *4 (S.D.N.Y. Feb. 15, 2011) (noting that plaintiff‘s Monell allegations failed because they did not “identify procedural manuals or training guides, nor d[id] they highlight relevant particular
IV. The City‘s motion to dismiss Officer Llano‘s third-party indemnification claim is denied because I find it appropriate to exercise supplemental jurisdiction over this claim.
As the City concedes, this court has discretion to exercise supplemental jurisdiction over Officer Llano‘s indemnification claim. See City Defs.’ Br. 20–21; see also Harris v. Rivera, 921 F. Supp. 1058, 1062 (S.D.N.Y. 1995) (“Federal courts have exercised supplemental jurisdiction over claims for indemnification when these claims were ‘tightly interwoven with federal law issues the lawsuit presents.‘” (quoting Turk v. McCarthy, 661 F. Supp. 1526, 1536 (E.D.N.Y. 1987))). A municipal employee‘s right to indemnification is decided under
The City then argues that Officer Llano‘s indemnification claim should be dismissed because it is premature. See City Defs.’ Br. 22. Indemnification claims “do not generally ripen until a judgment in the underlying action is paid.” Hanson v. City of New York, No. No. 15-CV-1447 (MKB), 2018 WL 1513632, at *23 (quoting Harris, 921 F. Supp. at 1062)). In addressing third-party indemnification claims asserted before a judgment, some courts in this Circuit have found it appropriate to dismiss the cross-claim on ripeness grounds and require the plaintiff to file a state-court suit after judgment, while others “have permitted defendants to assert indemnification cross-claims before they are technically ripe in order to promote fairness and judicial economy.” Id. (internal quotation marks and citation omitted); see also Harris, 921 F. Supp. at 1062 (“[F]or the sake of fairness and judicial economy, the CPLR allows third-party actions to be commenced in certain circumstances before they are technically ripe, so that all parties may establish their rights and liabilities in one action.” (quoting Mars Assocs. v. N.Y.C.
CONCLUSION
For the reasons stated in this opinion, McLeod‘s claims against Officer Prinston, Lieutenant Madhu, and the City are dismissed.7 McLeod‘s excessive force claim against Officer Llano, as well as Officer Llano‘s related third-party indemnification claim against the City, remain.
SO ORDERED.
Allyne R. Ross
United States District Judge
Dated: March 12, 2019
Brooklyn, New York