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.
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 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 ...