4. City of Mount Vernon
Plaintiff brought eight other claims against the City of Mount
Vernon, asserting violations of her federal and state
constitutional rights and of state law (Sixth through Fourteenth
Claims.) For her Sixth, Seventh, and Ninth Claims, Plaintiff
alleged that Mount Vernon municipal employees acted in accordance
with established municipal policy in conducting the unlawful
strip search which violated her rights under the Fourth and
Fourteenth Amendments to the United States Constitution.
Plaintiff's Sixth and Seventh Claims do not articulate the
municipal policy under which the individual defendants acted;
accordingly, these two claims are dismissed with leave to
replead.*fn1 However, Plaintiff's motion for summary judgment on
the more artfully pleaded Ninth Claim is granted.
As the Supreme Court held in Monell v. Department of Social
Services, an individual plaintiff may sue a municipality
directly under § 1983 only for constitutional deprivations
inflicted pursuant to a governmental custom or policy. Monell,
436 U.S. 658, 690-91, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978). A
municipality may not be held liable under § 1983 for the actions
of its employees under a theory of respondeat superior. See
Batista v. Rodriguez, 702 F.2d 393, 396 (2d Cir. 1983) (citing
Monell, 436 U.S. at 691, 694, 98 S.Ct. 2018). "To 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." Batista, 702 F.2d at 397. This does not mean that the
plaintiff must show that the municipality had an explicitly
stated rule or regulation that gave rise to the violation. See
Ricciuti v. New York City Transit Auth., 941 F.2d 119, 123 (2d
Cir. 1991). The plaintiff may establish "the existence of an
unlawful practice by subordinate officials so permanent and well
settled as to constitute a `custom or usage' and proof that this
practice was so manifest and widespread as to imply the
constructive acquiescence of the policy-making officials."
White-Ruiz v. City of New York, No. 93 Civ. 7233(DLC)(MHD),
1996 WL 603983 at *7 (S.D.N.Y. Oct. 22, 1996) (citing City of
St. Louis v. Praprotnik, 485 U.S. 112, 127, 130, 108 S.Ct. 915,
99 L.Ed.2d 107 (1988) and Sorlucco v. New York City Police
Dept., 971 F.2d 864, 871 (2d Cir. 1992)).
No Monell motion has been made by the municipal defendants
here, and none would lie, since the search was conducted pursuant
to an admitted policy of strip searching everyone who was
arrested for narcotics activity. See Hackett Dep. at 61; Dep.
of Det. Courtney Besley at 53-54, attached at Ex. G to Korenbaum
Aff.; Dep. of Christopher Laird at 50-51, attached at Ex. J to
Korenbaum Aff.; Cosenza Dep. at 59-61; and Dep. of Nyrita Sierra
at 21-22, attached at Ex. H to Korenbaum Aff. As discussed above,
the unlawful search by Mount Vernon's municipal employees
violated Mrs. Flores's Fourth and Fourteenth Amendment rights.
Accordingly, she is entitled to summary judgment against the City
of Mount Vernon on her Ninth Claim.
In her remaining two claims, Plaintiff seeks relief from the
City of Mount Vernon for violations of Article I, Section 12 of
the New York State Constitution, which provides "[s]ecurity
searches, seizures, and interceptions." N.Y. Const. Art I, § 12
(McKinney's 1998). Judge Lowe of this Court recently observed
that "[n]o explicit constitutional or statutory authority
sanctions a private right of action for violations of the New
York State Constitution." Wahad v. F.B.I., 994 F. Supp. 237, 238
(S.D.N.Y. 1998) (citing Brown v. State, 89 N.Y.2d 172, 186,
652 N.Y.S.2d 223, 674 N.E.2d 1129 (1996)). In Brown v. State, the
New York Court of Appeals recognized a private right of action
against the State of New York for violations of the equal
protection and search and seizure clauses of the New York State
Constitution, analogizing to the United States Supreme Court's
analysis in Bivens v. Six Unknown Named Agents of Federal Bureau
of Narcotics, 403 U.S. 388, 91 S.Ct. 1999, 29 L.Ed.2d 619
(1971). See Brown, 89 N.Y.2d at 187-89, 652 N.Y.S.2d 223,
674 N.E.2d 1129.
However, the Brown Court of Appeals found the "narrow remedy"
necessary in that case only because plaintiffs had no other basis
for relief against the State for state constitutional violations.
See Brown, 89 N.Y.2d at 192, 652 N.Y.S.2d 223, 674 N.E.2d 1129.
By contrast, in this case, as in Wahad, "[t]he rationale of
Brown is inapplicable. . . . [T]he existence of alternative
damage remedies under Section 1983 obviates the need to imply a
private right of action" under the state search and seizure
clause. Wahad, 994 F. Supp. at 240.
Accordingly, Plaintiff's Tenth and Eleventh Claims are
dismissed with respect to the municipal defendants because no
private right of action exists for violations of the New York
State Constitution where a Plaintiff has alternative damage
remedies available, as Mrs. Flores does under her § 1983 claim.
The discovery deadline is extended to February 26, 1999. The
parties are directed to be trial-ready under my rules on March
30, 1999. Responses to in limine motions, if any are made, are
due April 12, 1999. The Court will conference the case shortly
thereafter to resolve any outstanding pre-trial issues, including
whether the damages phase of the case should be bifurcated from
the liability trial against Officers Besley and Sierra.
This constitutes the decision and order of the Court.