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BENNERSON v. CITY OF NEW YORK

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

OPINION

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, 2003.

  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 entity.

  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(b)(6)

 Standard

  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 that:

  [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 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 Defendants

  It is well settled that the New York City Department of Correction is a non-suable entity. Echevarria v. Dep't of Correctional Servs., 48 P. Supp.2d 388, 391 (S.D.N.Y. 1999). The New York City Charter states that "[a]ll 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 Dep'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. Rodriguez, 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 York.

  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 4(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.

 Conclusion

  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.


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