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February 16, 2000


The opinion of the court was delivered by: Cedarbaum, District Judge.


Ometrius Perez sues the County of Westchester and doctors Ralph Nager and Edward Herman in their official and personal capacities under 42 U.S.C. § 1983 for violating his rights under the First, Fourth, Eighth, and Fourteenth Amendments of the United States Constitution. Perez contends that he was mistreated in late 1994 and early 1995 while incarcerated at the Westchester County Jail. Defendants move to dismiss the Second Amended Complaint for failure to comply with the pleading requirements of Fed.R.Civ.P. 8(a) and for failure to state a claim pursuant to Fed.R.Civ.P. 12(b)(6).*fn1 Dr. Nager and Dr. Herman move for summary judgment on the ground that their actions are protected by qualified immunity. Nager moves for dismissal on the ground that he was not properly served with process. Perez moves for reimbursement of the costs of personally serving Nager and Herman. For the reasons discussed below, defendants' motions to dismiss the municipal liability claims and for summary judgment are granted. The parties' motions with respect to service of process are denied.


As will be explained more fully below, it is difficult to discern from any of the complaints exactly what Perez alleges to have happened while he was confined in the Westchester County Jail. All of the material facts are contained in a single paragraph of the Second Amended Complaint:

From and after on or about December 13, 1994, until on or about February 13, 1995, defendants, their agents, servants and employees, did, without legal justification therefor, and without plaintiff's consent and against his will, subject and cause plaintiff to be subjected to certain restraints and deprivations, in that they did, among other things, forcibly, unlawfully, intentionally, willfully, wantonly, recklessly and maliciously confine plaintiff, who was known to them then and there to be suicidal and to be suffering from adjustment disorder, depression, anxiety and claustrophobia, to a locked room for extensive periods of time; did deprive him of all of his personal property, including his clothing; did prohibit plaintiff from speaking to anyone, and from being spoken to by anyone, including members of the staff of the detention facility and the medical center; did prohibit plaintiff from sending or receiving correspondence, including written correspondence to and from attorneys; did prohibit plaintiff from making telephone calls; did deny him medical treatment for the depression, anxiety and claustrophobia from which he was then and there suffering; and did deny him access to law books and other legal materials.

(Compl. ¶ 25.)

The initial complaint in this suit was dismissed pursuant to Monell v. Department of Social Services, 436 U.S. 658, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978), because it "fail[ed] to allege a single fact from which to infer the existence of a policy or custom." Perez v. County of Westchester, No. 96 Civ. 9487(MGC), 1997 WL 256932, at *1 (S.D.N.Y. May 16, 1997) (opinion denying motion for reconsideration).

Perez submitted an amended complaint adding Dr. Herman and Dr. Nager as defendants. Perez' lawyer was advised in open court that the factual allegations in the amended complaint were still inadequate, and was directed to file a further amended complaint which "state[s] a plain, concise statement of the facts as to each of the named defendants that constitutes a violation of the Constitution of the United States in this case." (Transcript of Proceedings, Sept. 11, 1998, at 21.)

Perez has submitted a Second Amended Complaint. Defendants once again move for dismissal.


I. The complaint does not plead a policy or custom.

A claim under § 1983 asserted against a municipality must allege that a deprivation of the plaintiff's constitutional rights resulted from a custom or policy of the municipality. Monell v. Department of Social Services, 436 U.S. 658, 690, 98 S.Ct. 2018, 2035-36, 56 L.Ed.2d 611 (1978). Such a claim cannot be based on a theory of respondeat superior. 436 U.S. at 691, 98 S.Ct. at 2036. Additionally, "there must be proof of such a custom or policy in order to permit recovery on claims against individual municipal employees in their official capacities, since such claims are tantamount to claims against the municipality itself." Dwares v. City of New York, 985 F.2d 94, 100 (2d Cir. 1993).

Despite being advised by the Court of these requirements on at least three occasions, Perez' lawyer fails to adequately allege that Perez' rights were violated as a result of a custom or policy of the County of Westchester. The newest version of the complaint has merely been altered to include a conclusory, boilerplate statement that "[a]t all times hereinafter stated, defendants, their agents, servants and employees, were acting under color of law and pursuant to county policy and custom." (Compl. ¶ 19.) The complaint does not include any facts demonstrating the existence of a policy or custom. The complaint does not even generally indicate the nature of the policy or custom being alleged, such as a failure to train county officers. This additional allegation, standing alone, is insufficient to state a claim of municipal liability. See Dwares, 985 F.2d at 100 ("The mere assertion . . . that a municipality has such a custom or policy is insufficient in the absence of allegations of fact tending to support, at least circumstantially, such an inference."); Turpin v. Mailet, 619 F.2d 196, 202 (2d Cir. 1980) (holding that a single incident can establish municipal liability in the absence of proof of a policy or custom only if it is "unusually brutal or egregious").

Perez argues that under the Supreme Court's decision in Leatherman v. Tarrant County Narcotics Intelligence & Coordination Unit, 507 U.S. 163, 168, 113 S.Ct. 1160, 1163, 122 L.Ed.2d 517 (1993), his complaint is only required to contain a bare assertion that the challenged action was taken pursuant to a municipal policy or custom without any indication of the nature of the policy or custom. This contention is without merit. Leatherman held only that complaints against municipal entities are not subject to a "heightened pleading standard" beyond the requirements of Fed.R.Civ.P. 8. Id. However, Rule 8 requires "a short and plain statement of the claim showing that the pleader is entitled to relief." Perez' claim, while short, is not plain, and provides no notice concerning the nature of the policy or custom under which defendants' actions were allegedly taken. Even under the liberal notice pleading standard set forth in Leatherman, the Complaint fails to adequately allege a policy or custom. See Dwares, 985 F.2d at 100-01; Economic Opportunity Commission of Nassau County, Inc. v. County of Nassau, Inc., 47 F. Supp.2d 353, 370-71 (E.D.N.Y. 1999) (granting motion to dismiss Monell claim because plaintiffs "do not proffer any facts in support of the conclusory allegation that the defendants' conduct amounts to a custom or policy, or that this custom or policy caused the plaintiffs' injuries"); Morales v. New York City Police Department, No. 97 Civ. 7151 MGC, 2000 WL 10436, at *2 (S.D.N.Y. Jan. 6, 2000) (holding that even under Leatherman "the plaintiff must still allege some facts that make possible the inference of a policy giving rise to ...

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