United States District Court, S.D. New York
September 12, 2005.
SAMANTHA ALLAN, Plaintiff,
THE CITY OF NEW YORK, THE NEW YORK CITY POLICE DEPARTMENT, NEW YORK CITY POLICE OFFICER EDWIN NIEVES, NEW YORK CITY POLICE OFFICER JOHN DOE, Defendants.
The opinion of the court was delivered by: ROBERT SWEET, Senior District Judge
Defendants the City of New York (the "City"), the New York City
Police Department ("NYPD"), New York City Police Officers Edwin
Nieves ("Nieves") and John Doe have moved under Rule 56,
Fed.R.Civ.P., to dismiss the complaint of plaintiff Samantha Allan
("Allan"). For the reasons set forth below, the motion is granted
in part and denied in part. Furthermore, the Court, on its own
initiative, dismisses the complaint as to Nieves for failure of
Allan filed her complaint on August 19, 2003 pursuant to
42 U.S.C. § 1983,*fn1 claiming, inter alia, that she was
falsely arrested in violation of her constitutional rights under
the First and Fourteenth Amendments and tortious interference
with her business under the First Amendment. The action was reassigned to this Court on April 26, 2004.
Discovery proceeded, the pretrial order was submitted on December
13, 2004, and the instant motion was heard and marked fully
submitted on April 27, 2005.
The facts are set forth in the City's Statement pursuant to
Local Civil Rule 56.1. Allan has submitted no Local Civil Rule
56.1(b) Statement in opposition. However, she has submitted
rather an affidavit of her counsel. For the purposes of this
motion, the City has not contested Allan's version of the facts.
The facts have been set forth as follows.
On February 15, 2003, Allan came to New York City from Boston
to take photographs at an anti-war protest. At the protest, she
shot some twenty rolls of film (approximately 672 photographs).
At some point, she was arrested with a group of protesters,
handcuffed, and put inside a police truck. She retained her
camera and photographic equipment. While inside the van, she
suffered an asthma attack. She was able to retrieve her asthma
medication. Within ten minutes of the onset of her asthma attack,
Allan states that an ambulance came to aid her. After refusing to
go to the hospital, she was transferred to a bus, and taken to
the precinct, where she was held overnight and released. She was
able to take photographs while at the precinct. All of her personal property
was returned to her.
According to Allan, she was advised at the protest that her
actions were permitted. At some point during the protest, a
Captain Martinez gave an order to Sergeant McGovern of the 7th
Precinct to have police officers, including Nieves, each make
five arrests. Allan was arrested and prosecuted by the District
Attorney of New York upon a complaint filed by Nieves. The case
against Allan was dismissed on July 9, 2003. The District
Attorney conceding that there was insufficient evidence to prove
Allan's guilt beyond a reasonable doubt.
Allan filed a notice of claim on April 25, 2003, claiming false
arrest, denial of medical attention and damage to personal
property by members of the NYPD, and malicious prosecution by the
NYPD and the Manhattan District Attorney's Office. On June 20,
2003, Allan's examination for purposes of Section 50-h of the General Municipal Law*fn2 was scheduled. However, she
requested that such examination be adjourned.
After Allan requested the adjournment of the 50-h hearing, she
filed the instant lawsuit on August 19, 2003. The 50-h hearing
was held on August 20, 2003.
At the conclusion of discovery, after taking the deposition of
Nieves, Allan narrowed her claims to: (1) violations of her
rights under the First Amendment (including tortious interference
with her business), (2) false arrest, and (3) malicious
Allan has submitted an affidavit of service indicating service
upon Nieves at One Police Plaza on or about August 22, 2003. The
place of business of Nieves is at the local precinct, the 7th
Precinct. No proof has been offered that Allan served Officer
Nieves by mail. According to Allan, her process server was told at the 7th Precinct to make service on Nieves at One Police
Summary Judgment Standard
Pursuant to Rule 56, summary judgment may be granted only if
there is no genuine issue of material fact and the moving party
is entitled to judgment as a matter of law. See Fed.R.Civ.P.
56(c); Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986);
SCS Communications, Inc. v. Herrick Co., Inc., 360 F.3d 329,
338 (2d Cir. 2004). The court will not try issues of fact on a
motion for summary judgment, but, rather, will determine "whether
the evidence presents a sufficient disagreement to require
submission to a jury or whether it is so one-sided that one party
must prevail as a matter of law." Anderson v. Liberty Lobby,
Inc., 477 U.S. 242, 251-52 (1986).
Summary judgment is appropriate where the moving party has
shown that "little or no evidence may be found in support of the
nonmoving party's case. When no rational jury could find in favor
of the nonmoving party because the evidence to support its case
is so slight, there is no genuine issue of material fact and a
grant of summary judgment is proper." Gallo v. Prudential
Residential Servs., Ltd. P'ship, 22 F.3d 1219, 1223-24 (2d Cir.
1994) (internal citations omitted). If, however, "`as to the
issue on which summary judgment is sought, there is any evidence
in the record from which a reasonable inference could be drawn in favor
of the opposing party, summary judgment is improper.'" Sec. Ins.
Co. of Hartford v. Old Dominion Freight Line Inc., 391 F.3d 77,
83 (2d Cir. 2004) (quoting Gummo v. Village of Depew,
75 F.3d 98, 107 (2d Cir. 1996)).
The Complaint Against The NYPD Is Dismissed
Allan has conceded that the NYPD is not a suable entity.
The Complaint Against The City Is Dismissed
At the outset, the City has noted that Allan never alleged
municipal liability*fn3 either (1) in her complaint or (2)
in her claims listed in the parties' joint pretrial order, and,
thus, municipal liability should not attach to the City on this
However, Allan has argued in her opposition to the City's
motion that municipal liability exists based on the order of
Captain Martinez for police officers to "make five arrests" and
since all of these arrests were made without probable cause, then
such "policy" is unconstitutional. To support her premise that
each arrest was made without probable cause, Allan relies on
Nieves' deposition testimony in which he testified that he could
not recall what Allan was doing at the time of her arrest.
However, Allan has failed to establish that any orders given by
Captain Martinez constitute the policy of the City because
Captain Martinez is not a "policymaker" for purposes of municipal
liability. See Anthony v. City of New York, 339 F.3d 129, 134
(2d Cir. 2003) (holding that a police sergeant is not a final
decision maker when exercising discretion in a particular
situation). Here, Captain Martinez, a ranked position police
officer, made the probable cause determination to arrest and that probable cause
determination is discretionary. More important, even assuming,
arguendo, that Captain Martinez's order constituted policy,
Allan has not proffered evidence that the other arrests at the
protest were made without probable cause.
Moreover, according to the deposition testimony of Nieves (as
characterized by the City), there was probable cause, Allan being
among the group of people who refused to disperse after orders to
do so were given by the police. However, the City's motion for
summary judgment does not raise the issue of whether or not
probable cause existed for Allan's arrest and prosecution
because, even assuming there was no probable cause for the arrest
of Allan, there is no evidence that a policy of the City was the
motivating factor in the illegal arrest. Standing alone, the
deposition of Nieves does not establish Monell liability
because a single event does not rise to a policy or practice
necessary for purposes of municipal liability. See Sorlucco v.
New York City Police Dept., 971 F.2d 864, 870 (2d Cir. 1992)
(stating that "[a] municipal agency may not be held liable under
§ 1983 simply for the isolated unconstitutional acts of its
In order for municipal liability to attach on a training and
supervision theory of liability, Allan must prove deliberate
indifference on the part of the municipality. See Board of
County Comm'rs v. Brown, 520 U.S. 397, 410 (1997) (stating that
"a plaintiff seeking to establish municipal liability on the theory
that a facially lawful municipal action . . . has led an employee
to violate a plaintiff's rights must demonstrate that the
municipal action was not simply negligent, but was taken with
`deliberate indifference' as to its known or obvious
consequences") (quoting City of Canton, 489 U.S. at 388).
Allan has also contended that the City was deliberately
indifferent by denying her medical treatment. However, in her
deposition she stated that she, in fact, received medical
treatment and this claim is not set forth in the parties' joint
For these reasons, Allan has failed to state or establish a
claim for municipal liability against the City.
The Complaint Against Nieves Is Dismissed
Service of process upon individuals in federal actions is
governed by Rule 4(e) of the Federal Rules of Civil Procedure.
Rule 4(e)(1) provides that an individual may be served pursuant
to the law of the forum state. In New York, service of process
upon a natural person is governed by Section 308 of the New York
Civil Practice Law and Rules (hereinafter "CPLR"), which provides
in pertinent part: Personal service upon a natural person shall be made
. . . by delivering the summons within the state to a
person of suitable age and discretion at the actual
place of business . . . of the person to be served
and by . . . mailing the summons by first class mail
to the person to be served at his or her actual place
of business . . . such delivery and mailing to be
effected within twenty days of each other . . .
N.Y.C.P.L.R. § 308(2).
As previously stated by this Court, see Bennerson v. City of
New York, No. 03 Civ. 10182 (RWS), 2004 WL 902166, *5 (S.D.N.Y.
Apr. 28, 2004), pursuant to Rule 4(m),*fn4 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. 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). Here the docket sheet contains no proof that any individual
defendant was served. At the deposition of Nieves on June 15,
2004, defense counsel reminded Allan that Nieves had not been
served with process and that Nieves' attendance at his deposition
was neither an appearance nor a waiver of any of his rights
regarding service. To date, Nieves has not been served in
accordance with the requirements of Section 308.
Based on the arguments raised by the City, Allan had notice
that dismissal of the action as to Nieves was contemplated.
Indeed, the issue of whether service of Nieves was adequate was
fully briefed. For this reason, the complaint is dismissed
without prejudice as to Nieves.
It should be noted that pursuant to 42 U.S.C. § 1988, the
statute of limitations for civil rights actions commenced in New
York under Section 1983 is the residual personal injury statute
of N.Y.C.P.L.R. § 214(5), which provides that actions must be
commenced within three years. Ormiston v. Nelson, 117 F.3d 69,
71 (2d Cir. 1997). The statute of limitations accrues "when the
plaintiff knows or has reason to know of the injury which is the
basis of his action." Id. (quoting Singleton v. City of New
York, 632 F.2d 185, 191 (2d Cir. 1980). The City's Motion To Dismiss The State Law Claims Is Denied
The City has argued that Allan failed to follow the
above-described conditions precedent to suit under the New York
General Municipal Law. The City argues that dismissal of her
claims is therefore warranted pursuant to Section 50-h(5), which
provides in pertinent part as follows:
Where a demand for examination has been served as
provided in subdivision two of this section no action
shall be commenced against the city, county, town,
village, fire district or school district against
which the claim is made unless the claimant has duly
complied with such demand for examination, which
compliance shall be in addition to the requirements
of section fifty-e of this chapter. If such
examination is not conducted within ninety days of
service of the demand, the claimant may commence the
action. The action, however, may not be commenced
until compliance with the demand for examination if
the claimant fails to appear at the hearing or
requests an adjournment or postponement beyond the
ninety day period. If the claimant requests an
adjournment or postponement beyond the ninety day
period, the city, county, town, village, fire
district or school district shall reschedule the
hearing for the earliest possible date available.
N.Y. General Municipal Law § 50-h(5).
Allan's actions violate the requisite statutory conditions and,
thus, her state claims are subject to dismissal.
Allan has argued that the scheduling of the § 50-h hearing was
the City's prerogative and thus she should not be penalized for
her request to adjourn the conference since her examination took place on the day following the filing of the
action. However, GML § 50-h(5) forbids a plaintiff from filing an
action prior to being examined in a § 50-h hearing, if the
plaintiff adjourns the scheduled § 50-h hearing date. While the
City schedules hearing dates, it was Allan's obligation to wait
until the hearing was held before filing her lawsuit.
However, there is authority to support the proposition that an
action should not be dismissed on the ground that it was
commenced after a demand for examination was made and prior to
the actual examination, "if the plaintiff had not sought to gain
a tactical advantage by commencing the action prior to being
examined, the defendant was not prejudiced, was notified of the
claim, and had ample time to investigate it, and the dismissal of
the complaint would result in the action being time barred." 62A
William H. Danne, Jr. & Charles J. Nagy, Jr., NY Jur. 2d,
Government Tort Liability § 459 (2005) (citing Wallace v. City
of New York, 126 Misc. 2d 56, 480 N.Y.S.2d 989 (N.Y. Sup. Ct.
Section 50-i of the General Municipal Law provides that tort
claims against a municipal corporation must be commenced no later
than a year and 90 days after the event on which the claim is
based. Since more than two years have past since the event on
which Allan's claim is based, dismissal of the complaint will
result in the action against the City being time barred. Since
the City has failed to demonstrate that the other factors
identified by the Wallace court warrant dismissal of Allan's state law
claims, the City's motion to dismiss the State law claims is
The motion of the City for summary judgment is granted in part.
Furthermore, upon the Court's initiative, the complaint is
dismissed as to Nieves for failure of service. Leave is granted
to Allan to effect service on Nieves within thirty (30) days of
entry of this opinion.
It is so ordered.
© 1992-2005 VersusLaw Inc.