United States District Court, S.D. New York
April 28, 2004.
ALLAN BENNERSON, Plaintiff, -against- CITY OF NEW YORK, DEPARTMENT OF CORRECTION and CORRECTION OFFICERS MONTRA and CAMPBELL, Defendants
The opinion of the court was delivered by: ROBERT SWEET, Senior District Judge
Allan Bennerson ("Bennerson") has brought this action pro
se pursuant to 42 U.S.C. § 1983, alleging that he was physically
assaulted during his incarceration at Rikers Island. Defendants City of
New York and New York City Department of Correction (the "Municipal
Defendants") move to dismiss the complaint pursuant to Rule 12(b)(6),
Fed.R. Civ. P., and pursuant to Rule 41(b), Fed.R. Civ. P., for
failure to prosecute. For the reasons set forth below, the motion is
granted and Bennerson is ordered to show cause no later than May 26,
2004, on submission, why the amended complaint should not be dismissed on
that date without prejudice as to the remaining defendants.
Prior Proceedings and Background
On December 24, 2002, Bennerson filed a complaint raising claims
pursuant to 42 U.S.C. § 1983 and alleging that he was physically
assaulted by correction officers while incarcerated at Rikers Island. By
an order bearing that same date, Bennerson was directed to file an
amended complaint and advised that he "must show the existence of an
officially adopted policy or custom that caused injury and a causal
connection between that policy or custom and the deprivation of a
constitutional right" in order to sustain a claim under
42 U.S.C. § 1983 against a municipal defendant. (Dec. 24, 2002 Order, at 2.) Bennerson filed an amended complaint on January 9, 2003. According to
the allegations in the amended complaint, Bennerson was cleaning a
bathroom and shower in his housing unit at Rikers Island on May 15, 2002,
when a correction officer told him to drop the mop, place his hands
behind his head, and walk to the front of the bathroom. Bennerson alleges
that he complied and that the officer proceeded to threaten him verbally.
An indeterminate number of other correction officers then entered the
room, according to Bennerson, and surrounded him in a circle. An officer
named "Montra" then allegedly punched him in the face, and he fell to the
floor. While he was still on the floor, other correction officers
allegedly proceeded to kick and punch him. Bennerson alleges that he was
then handcuffed and dragged from the bathroom to the outside of the
housing area where officers including an officer wearing a
name-tag labeled "Campbell" continued to kick and punch him, and
began to bang his head against the wall in the hallway "like a ball."
According to the amended complaint, Bennerson was thereafter dragged to
the facility hospital and placed in a cage. The amended complaint names
as defendants the Municipal Defendants and Correction Officers Campbell
("Campbell") and Montra ("Montra").
By a letter dated May 9, 2003, Corporation Counsel informed the Court
that there were no correction officers named Montra at the Department of
Correction and two correction officers with the name Campbell who worked
at Rikers Island at the time of the alleged incident. Corporation Counsel's request to be relieved
of responsibility to respond to the acknowledgments of service by mail on
behalf of Correction Officers Campbell or Montra was granted on May 20,
By a letter dated May 29, 2003, Corporation Counsel, on behalf of the
Municipal Defendants, reported to the Court and Bennerson that, upon
information and belief, three correction officers were in the area of the
alleged incident on the date and time in question: Divine Calvin
("Calvin"), Bret Moleta ("Moleta"), and Steven Ryan ("Ryan"). By an order
dated May 29, 2003, the complaint was amended to add as defendants the
named officers. The same order specified that the named officers "must be
served by plaintiff."
The Municipal Defendants answered Bennerson's complaint on June 16,
2003, asserting as affirmative defenses, inter alia, that the
amended complaint fails to state a claim upon which relief can be granted
and that defendant New York City Department of Correction is not a suable
By a letter dated August 1, 2003, the Municipal Defendants, by their
counsel, informed the Court and Bennerson that, upon information and
belief, Calvin, Moleta and Ryan had yet to be served by Bennerson. The
Municipal Defendants also stated that they were awaiting discovery responses and initial disclosures
from Bennerson at that time.
On September 29, 2003, Corporation Counsel wrote to Bennerson on behalf
of the Municipal Defendants to make a settlement offer and to explain the
Municipal Defendants' intent to move to dismiss the complaint should
settlement not result. By that same letter, Corporation Counsel noted
that Calvin, Moleta and Ryan had not been served with process and that,
"inasmuch as the individually named defendants have not been served with
process to date, they are not proper defendants in this action." (Letter
from Jennifer A. Vasquez to Allan Bennerson, dated Sept. 29, 2003, at 1.)
By a letter dated October 7, 2003, the Municipal Defendants reiterated
their offer of settlement and informed Bennerson that, should their offer
not be accepted by October 10, 2003, they were considering making a
motion for summary judgment.
By a letter dated November 25, 2003, Bennerson advised the Court of his
release from prison and current address. On January 27, 2004, Bennerson
was served with a notice of deposition and a copy of the September 29,
2003 letter to reiterate the Municipal Defendants' intention to move to
dismiss. Bennerson did not appear for deposition on February 4, 2004, the
date set in the notice of deposition. The Municipal Defendants filed this motion to dismiss on February 13,
2004. No opposition has been received from Bennerson, and the motion was
marked fully submitted on March 24, 2004.
I. Motion to Dismiss under Fed.R.Civ.P. 12
The Municipal Defendants have moved to dismiss the amended complaint
pursuant to Fed.R.Civ.P. 12(b)(6) on the grounds that defendant New
York City Department of Correction is a non-suable entity and that
Bennerson has not adequately pled a claim against defendant City of New
York under 42 U.S.C. § 1983.
In considering a motion to dismiss pursuant to Rule 12(b)(6), the
court should construe the complaint liberally, "accepting all factual
allegations in the complaint as true, and drawing all reasonable
inferences in the plaintiff's favor." Chambers v. Time Warner,
Inc., 282 F.3d 147, 152 (2d Cir. 2002)(citing Gregory v.
Daly, 243 F.3d 687, 691 (2d Cir. 2001)). "The issue is not whether a
plaintiff will ultimately prevail but whether the claimant is entitled to
offer evidence to support the claims." Villager Pond, Inc. v. Town
of Darien, 56 F.3d 375, 378(2d Cir. 1995) (quoting Scheuer v.
Rhodes, 416 U.S. 232, 236(1974)). Dismissal is only appropriate when
"it appears beyond doubt that the plaintiff can prove no set of facts
which would entitle him or her to relief." Sweet v. Sheahan,
235 F.3d 80, 83 (2d Cir. 2000).
A complaint should not be dismissed solely for failure to file
opposition to a motion to dismiss under Rule 12(b)(6), Fed.R. Civ. P.,
without assessing the legal sufficiency of the complaint. See
McCall v. Pataki, 232 F.3d 321, 322-23 (2d Cir. 2000); cf.
Maggette v. Dalsheim, 709 F.2d 800, 802 (2d Cir. 1983) (concluding
that it is an error to grant a motion for judgment on the pleadings under
Fed.R.Civ.P. 12(c) for failure to oppose the motion where the
pleadings themselves are sufficient to withstand dismissal).
As the Municipal Defendants have previously filed an answer in this
action, their motion to dismiss under Rule 12(b)(6) is untimely.
See Fed.R.Civ.P. 12(b)("A motion making any of these
defenses [under Rule 12(b)] shall be made before pleading if a further
pleading is permitted."). However, the Second Circuit has recently held
[A] motion to dismiss for failure to state a claim
(or one of the other non-waivable defenses under
Rule 12(h)) that is styled as arising under Rule
12(b) but is filed after the close of pleadings,
should be construed by the district court as a
motion for judgment on the pleadings under
Rule 12 (c).
Patel v. Contemporary Classics of Beverly Hills,
259 F.3d 123, 126(2d Cir. 2001) (footnote omitted) (noting that
district courts within the Second Circuit as well as courts of appeals
in other circuits have adopted the same conclusion). The Municipal
Defendants' motion to dismiss under Rule 12(b)(6) thus will be construed
as a motion for judgment on the pleadings under Fed.R.Civ.P. 12(c)
and, as such, is deemed timely. See Fed.R.Civ.P. 12(c)
("After the pleadings are closed but within such time as not to delay the
trial, any party may move for judgment on the pleadings.").
The standard for granting a Rule 12(c) motion for judgment on the
pleadings "is identical to that of a Rule 12(b)(6) motion for failure
to state a claim." Patel, 259 F.3d at 126 (citing Irish
Lesbian & Gay Org. v. Giuliani, 143 F.3d 368, 644 (2d Cir.
1998); Sheppard v. Beerman, 18 F.3d 147, 150 (2d Cir. 1994);
Ad-Hoc Comm. of Baruch Black & Hispanic Alumni Ass'n v. Bernard
M. Baruch Coll., 835 F.2d 980, 982 (2d Cir. 1987)). "In both
postures, the district court must accept all allegations in the complaint
as true and draw all inferences in the non-moving party's favor. The
court will not dismiss the case unless it is satisfied that the complaint
cannot state any set of facts that would entitle [the plaintiff] to
relief." Patel, 259 F.3d at 126 (internal citation omitted).
The Amended Complaint Is Dismissed As Against the Municipal
It is well settled that the New York City Department of Correction is a
non-suable entity. Echevarria v. Pep't of Correctional Servs., 48 F. Supp.2d 388, 391 (S.D.N.Y.
1999). The New York City Charter states that "[a]11 actions and
proceedings for the recovery of penalties for the violation of any law
shall be brought in the name of the City of New York and not in that of
any agency, except where otherwise provided by law." N.Y. City Charter,
ch. 17 § 396. Suits against the New York City Department of
Correction "are suits against a non-suable entity and are properly
dismissed upon that basis." Echevarria, 48 F. Supp.2d at 391
(citing Adams v. Galletta, 966 F. Supp. 210, 212 (S.D.N.Y.
1997); Byas v. New York City Pep't of Correction,
173 F.R.D. 385, 387-88 (S.D.N.Y. 1997)). Thus, the amended complaint must be
dismissed as to defendant New York City Department of Correction.
Bennerson's claims against defendant City of New York must also be
dismissed, although on different grounds. To state a claim under
42 U.S.C. § 1983, a complaint must aver that a person acting under color
of state law committed acts that deprived the plaintiff of a right,
privilege, or immunity secured by the Constitution or the laws of the
United States. See Parratt v. Taylor, 451 U.S. 527, 535 (1984).
In order to hold a municipality liable as a "person" within the meaning
of 42 U.S.C. § 1983, the plaintiff must establish that the
municipality was at fault for the constitutional injury he or she
suffered, see Oklahoma City v. Tuttle, 471 U.S. 808, 810
(1985); Monell v. New York City Dep't of Social Servs.,
436 U.S. 658, 690-91 (1978), in that the violation of the plaintiff's
constitutional rights resulted from a municipal policy, custom or practice. See Monell, 436 U.S. at 694;
Vann v. City of New York, 72 F.3d 1040, 1049 (2d Cir. 1995).
A plaintiff may satisfy the "policy, custom or practice" requirement in
one of four ways. See Moray v. City of Yonkers, 924 F. Supp. 8,
12 (S.D.N.Y. 1996). The plaintiff may allege the existence of (1) a
formal policy officially endorsed by the municipality, see
Monell, 436 U.S. at 690; (2) actions taken by government officials
responsible for establishing the municipal policies that caused the
particular deprivation in question, see Pembaur v. City of
Cincinnati, 475 U.S. 469, 483-84 (1986) (plurality opinion);
Walker v. City of New York, 974 F.2d 293, 296 (2d Cir. 1992);
(3) a practice so consistent and widespread that it constitutes a custom
or usage sufficient to impute constructive knowledge of the practice to
policymaking officials, see Monell, 436 U.S. at 690-91; or (4)
a failure by policymakers to train or supervise subordinates to such an
extent that it amounts to deliberate indifference to the rights of those
who come into contact with the municipal employees. See City of
Canton v. Harris, 489 U.S. 378, 388 (1989). There must also be a
causal link between the policy, custom or practice and the alleged injury
in order to find liability against the city. See Batista v.
Rodriquez, 702 F.2d 393, 397 (2d Cir. 1983).
"[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." DeCarlo v. Fry,
141 F.3d 56, 61 (2d Cir. 1998) (quoting Ricciuti v. New York City
Transit Auth., 941 F.2d 119, 123 (2d Cir. 1991)). Although the
amended complaint states that the alleged incident on May 15, 2002 is the
second incident involving Bennerson while he was held on Rikers Island,
the first having allegedly taken place on February 12, 2002, these claims
are not sufficient to demonstrate a policy or custom, nor do they rise to
the level of a practice so consistent and widespread that it constitutes
a custom or usage. As the amended complaint does not make allegations
that would suffice under the standards discussed above for municipal
liability under 42 U.S.C. § 1983 and instead only raises claims with
regard to the alleged conduct of individual correction officers, the
amended complaint must be dismissed as against defendant City of New
II. Dismissal of the Amended Complaint As Against
Calvin, Moleta, Ryan, Campbell and Montra
Since the amended complaint has been dismissed as against the
Municipal Defendants pursuant to Rule 12(c), Fed.R. Civ. P., the
Municipal Defendants' alternate grounds for dismissal under Rule 41(b),
Fed.R.Civ. P., need not be reached. In conjunction with their Rule 41(b)
argument, however, the Municipal Defendants note that service of process
has not been effected on Calvin, Moleta or Ryan, despite the fact that
Bennerson has been on notice of their names and addresses since May,
2003, and the fact that the May 29, 2003 order specified that Bennerson
must serve these defendants. Moreover, Bennerson has taken no action to prosecute
his claims with regard to Correction Officers Campbell and Montra, both
named in the amended complaint. In light of the failure to serve process
on Calvin, Moleta or Ryan and to prosecute the action with regard to
Campbell and Montra, dismissal of the amended complaint without prejudice
as to all of the individually named defendants appears warranted.
Pursuant to Rule 4(m), Fed.R. Civ. P., a court may, sua
sponte, dismiss a complaint for failure to serve process, provided
that the plaintiff is given notice of the possibility that the complaint
can or will be dismissed on that ground.*fn1 Fed.R.Civ.P. 4(m);
see also Thompson v. Maldonado, 309 F.3d 107, 110 (2d Cir.
2002) ("As indicated in the plain language of Rule 4(m), notice to the
plaintiff must be given prior to a sua sponte dismissal."). In
order to avoid such dismissal, a plaintiff must show good cause why
service could not be accomplished. See Fed.R.Civ.P. 4(m).
A court may also, sua sponte, dismiss a complaint for failure
to prosecute. See Link v. Wabash R.R. Co., 370 U.S. 626, 630-31
(1962); Martens v. Thomann, 273 F.3d 159, 179 (2d Cir. 2001); LeSane v. Hall's Sec. Analyst, Inc., 239 F.3d 206,
209 (2d Cir. 2001). In determining whether a complaint should be
dismissed for failure to prosecute, five factors may be considered: (1)
the duration of the plaintiff's failures; (2) whether the plaintiff was
on notice that further delay would result in dismissal; (3) whether the
defendant is likely to be prejudiced by further delay in the proceedings;
(4) a balancing of the court's interest in managing its docket with the
plaintiff's interest in receiving a fair chance to be heard; and (5)
whether a sanction less drastic than dismissal is appropriate. See
Martens v. Thomann, 273 F.3d 159, 180 (2d Cir. 2001);
LeSane, 239 F.3d at 209.*fn2 A dismissal for failure to
prosecute "will not be sustained unless it is clear from the record that
the party has either by direct notice or other circumstances acquired
knowledge that dismissal by virtue of his conduct or omission to act is a
possibility." Maggette, 709 F.2d at 802 (citations omitted).
Although Corporation Counsel's correspondence with Bennerson between July
and October 2003 could be construed as providing Bennerson with notice of
the possibility of dismissal here, direct notice is warranted, in light
of the fact that Bennerson is proceeding pro se. Accordingly, Bennerson is hereby ordered to show cause no later than
May 26, 2004, on submission, why the amended complaint should not be
dismissed on that date without prejudice for failure to serve process as
to Calvin, Moleta and Ryan and for failure to prosecute as to Campbell
and Montra. Failure to set forth good cause to excuse the failure to
prosecute will result in dismissal of the amended complaint without
prejudice as to the individually named defendants.
For the reasons set forth above, the motion to dismiss is granted as
against the Municipal Defendants, and Bennerson is ordered to show cause
no later than May 26, 2004, on submission, why the amended complaint
should not be dismissed on that date without prejudice for failure to
serve process as to Calvin, Moleta and Ryan and for failure to prosecute
as to Campbell and Montra.
It is so ordered.