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Nesbitt v. County of Nassau


December 6, 2006


The opinion of the court was delivered by: John Gleeson, United States District Judge


Dewayne Nesbitt brought this action pursuant to 42 U.S.C. § 1983 ("section 1983") against, among others, the County of Nassau, "Police Officer Bastone," and various unnamed police officers. Nesbitt alleged violations of numerous provisions of the United States Constitution.*fn1 Nesbitt stipulated to the discontinuance of some of those claims.*fn2 He also stipulated to the removal of several defendants.*fn3 The remaining named defendants now move pursuant to Fed. R. Civ. P. 12(b)(6) to dismiss Nesbitt's allegations of Sixth Amendment violations and allegations of municipal liability against the County of Nassau for failure to state a claim upon which relief can be granted. For the reasons stated below, the motion is granted in part and denied in part.


Nesbitt alleges that at 4:45 p.m. on August 24, 2004, he was listening to his car radio in a Circuit City parking lot when Police Officer Bastone arrested, handcuffed, and interrogated him in the presence of several other Nassau County police officers. Bastone and another officer also searched Nesbitt's car twice over his objection. Nesbitt asked Bastone "whether his actions were legal," to which Bastone replied that Nesbitt "'could sue' but his 'lawsuit would be thrown out.'" Compl. ¶ 16. Bastone and at least one other officer twice brought Nesbitt, still handcuffed, to the window of the Circuit City "for identification." Id. ¶ 17. Nesbitt was released at about 6:15 p.m.

Nesbitt claims that "[f]or many years, and continuing to date, the County of Nassau has maintained an official policy of negligent supervision and training of law enforcement officials which rises to the level of deliberate indifference to the constitutional rights of those within its domain." Id. ¶ 21. He alleges the "active inattention or knowing acquiescence" in this "policy" by "[h]igh level county officials." Id. He alleges that the actions of Bastone and the other officers were taken pursuant to this policy, with "actual malice and with the actual intent to inflict serious injury upon the plaintiff." Id. ¶ 22. As a result, Nesbitt claims, he suffered severe injuries.


A motion to dismiss tests the legal, not the factual, sufficiency of the complaint. Scheuer v. Rhodes, 416 U.S. 232, 236 (1974) ("When a federal court reviews the sufficiency of a complaint, before the reception of any evidence either by affidavit or admissions, its task is necessarily a limited one. The issue is not whether a plaintiff will ultimately prevail but whether the claimant is entitled to offer evidence to support the claims."); Sims v. Artuz, 230 F.3d 14, 20 (2d Cir. 2000) ("At the Rule 12(b)(6) stage, '[t]he issue is not whether a plaintiff is likely to prevail ultimately, but whether the claimant is entitled to offer evidence to support the claims.'" (quoting Chance v. Armstrong, 143 F.3d 698, 701 (2d Cir. 1998)) (prior citations omitted)). Accordingly, I accept the factual allegations in Nesbitt's complaint as true, and draw all inferences in his favor. See Twombly v. Bell Atl. Corp., 425 F.3d 99, 106 (2d Cir. 2005), cert. granted, 126 S.Ct. 2965 (2006). Moreover, I may not grant the defendants' Rule 12(b)(6) motion unless it appears beyond doubt that the plaintiff can prove no set of factsthat entitle him to relief. See Conley v. Gibson, 355 U.S. 41, 45-46 (1957); Gregory v. Daly, 243 F.3d 687, 691 (2d Cir. 2001). On the other hand, a legally sufficient complaint must allege at least one set of facts that "confer[s] a judicially cognizable right of action." York v. Ass'n of the Bar of New York, 286 F.3d 122, 125 (2d Cir. 2002), cert. denied, 537 U.S. 1089 (2002).


Section 1983 provides a private cause of action for "the deprivation of any rights, privileges, or immunities secured by the Constitution and laws" of the United States by persons acting "under color" of law.*fn4 To properly plead a claim under the statute, a "plaintiff must allege that some person has deprived him of a federal right" and "that the person who has deprived him of that right acted under color of state or territorial law." Gomez v. Toledo, 446 U.S. 635, 640 (1980). The defendants challenge, first, that Nesbitt fails to allege a deprivation of rights secured by the Sixth Amendment to the United States Constitution and, second, that the County of Nassau cannot be held liable for the individual officers' alleged deprivation of Nesbitt's rights.

A. Legal Sufficiency of the Sixth Amendment Claim Defendants argue that the facts as alleged fail to support a deprivation of Nesbitt's

Sixth Amendment rights.*fn5 I agree. There being no trial at issue here, I infer that the particular Sixth Amendment right Nesbitt asserts is his right "to have the Assistance of Counsel for his defence."*fn6 The Sixth Amendment right to assistance of counsel is triggered when adversary judicial proceedings have commenced, "'whether by way of formal charge, preliminary hearing, indictment, information, or arraignment.'" United States v. Gouveia, 467 U.S. 180, 187-88 (1984) (quoting Kirby v. Illinois, 406 U.S. 682, 688-89 (1972) (plurality)). I look to New York law to determine whether such proceedings had commenced against Nesbitt at or prior to the time of the offending conduct. See Moore v. Illinois, 434 U.S. 220, 228 (1977); Meadows v. Kuhlmann, 812 F.2d 72, 76-77 (2d Cir. 1987), cert. denied, 482 U.S. 915 (1987). In New York, "a criminal proceeding, and with it the right to counsel, is initiated by the filing of an accusatory instrument." Deshawn E. by Charlotte E. v. Safir, 156 F.3d 340, 349 (2d Cir. 1998) (citing People v. Blake, 35 N.Y.2d 331, 339 (1974)); see N.Y. Crim. Proc. Law § 100.05 (McKinney 2005) ("A criminal action is commenced by the filing of an accusatory instrument with a criminal court . . . ."). Nesbitt fails to allege that any such instrument had been filed before the incidents alleged. From the complaint it merely appears that Nesbitt was arrested briefly and then let go. While Nesbitt does allege two "showups" at the Circuit City window, the right to counsel does not attach during investigatory showup procedures before the advent of formal charges. See Kirby, 406 U.S. at 690-91 (holding that post-arrest, pre-charge showup was not a "criminal prosecution" and thus no Sixth Amendment right to counsel attached); accord United States v. Davis, 399 F.2d 948, 952 (2d Cir. 1968), cert. denied, 393 U.S. 987 (1968).*fn7

B. Legal Sufficiency of the Claim Against the County of Nassau

In Monell v. Department of Social Services, 436 U.S. 658, 663 (1978), the Supreme Court overruled its prior holding in Monroe v. Pape, 365 U.S. 167 (1961), that local governments are immune to suit under section 1983. While vicarious liability still provides no basis for municipal liability after Monell, see 436 U.S. at 691, municipalities, being "persons" for section 1983 purposes, are liable for unconstitutional actions implementing or executing that municipality's "policy or custom." Id. at 694. "[T]o hold a [municipality] liable under § 1983 for the unconstitutional actions of its employees, a plaintiff is required to plead and prove three elements: (1) an official policy or custom that (2) causes the plaintiff to be subjected to (3) a denial of a constitutional right." Batista v. Rodriguez, 702 F.2d 393, 397 (2d Cir. 1983). The defendants contend that Nesbitt's complaint fails to properly allege the existence of an official policy or custom.

In their initial moving papers, the defendants cobbled together stray phrases from cases in this circuit in an attempt to frame the question presented as whether Nesbitt's allegation of the existence of a county policy is "impermissibly conclusory" and lacking in "specific factual allegations." Memorandum of Law in Support of the County Defendants' Partial Motion to Dismiss Pursuant to Federal Rule 12(b)(6) at 9. However, since the Supreme Court's opinion in Leatherman v. Tarrant County Narcotics Intelligence and Coordination Unit, 507 U.S. 163 (1993), the question has been framed differently. Leatherman struck down the "heightened pleading standard" adopted by many courts of appeal, which required factual detail and particularity for allegations of municipal liability under section 1983. 507 U.S. at 164. The Court held that allegations of Monell liability need only meet the notice pleading requirements of Fed. R. Civ. P. 8. Id. at 168.*fn8

Defendants' initial moving papers relied upon Dwares v. City of New York, 985 F.2d 94 (2d Cir. 1993), for two propositions. First, "[a] single incident alleged in a complaint, especially if it involved only actors below the policymaking level, generally will not suffice to raise an inference of the existence of a custom or policy." 985 F.2d at 100. Second, "[t]he mere assertion . . . that a municipality has . . . a custom or policy is insufficient in the absence of allegations of fact tending to support, at least circumstantially, such an inference." Id. These propositions do not frame the question of the sufficiency of the complaint as one of notice pleading. They require, irrespective of the notice given to the answering party, specific factual allegations beyond a single incident supporting the alleged existence of a custom or practice. Leatherman explicitly rejected just such a heightened pleading standard; I conclude that Dwares (decided a month earlier) was abrogated by that decision. Other courts have reached a similar conclusion. See, e.g., Simpkins v. Bellevue Hosp., 832 F. Supp. 69, 74 n.3 (S.D.N.Y. 1993) ("[T]he Leatherman opinion . . . appears to change the law in the Second Circuit which theretofore required dismissal of a complaint which merely asserted conclusorily the existence of a policy without allegations of fact beyond the single incident alleged in the complaint.").*fn9

Defendants also rely upon Zahra v. Town of Southold, 48 F.3d 674, 685 (2d Cir. 1995), decided post-Leatherman, which cited Dwares for the "mere assertion" proposition recited above. But Zahra, an appeal from a jury verdict, involved a question of factual, not legal, sufficiency. The quoted language from Dwares was taken only to emphasize that a mere assertion of a custom or policy is not sufficient to persuade a reasonable jury of the existence of a municipal policy. See id. at 685 ("We find the record devoid of any evidence from which a reasonable juror could have inferred the existence of a municipal policy."). Neighbour v. Covert, 68 F.3d 1508, 1512 (2d Cir. 1995), (per curiam), cert. denied, 516 U.S. 1174 (1996), an appeal from a judgment entered after a bench trial, is distinguishable on the same grounds. See id. ("In this case, there was nothing in the record beyond the allegation that the Cooperstown Police Department failed to train its employees properly.") (emphasis added).

In their reply papers, defendants acknowledge that only notice pleading is required, but insist that the allegations in the complaint fail to provide it. I disagree.

The complaint alleges the existence of "an official policy of negligent supervision and training of law enforcement officials which rises to the level of deliberate indifference to the constitutional rights of those within its domain." Compl. ¶ 21. It further alleges that "[h]igh level county officials have personally participated in the maintenance of this policy by their active inattention to or knowing acquiescence in misconduct by law enforcement personnel." Id.

The particular example cited is an arrest, assault, and search that Nesbitt allegedly endured, along with Officer Bastone's admonition -- when asked if the arrest was legal -- that Nesbitt "could sue" but any lawsuit Nesbitt filed "would be thrown out." Id. ¶ 16.

Such allegations constitute a short and plain statement that, if true and given certain reasonable inferences drawn from the allegations, would entitle Nesbitt to relief from the municipality. I infer from Bastone's statement (as I must) that he arrested Nesbitt without probable cause in the parking lot and wrongfully searched the car over Nesbitt's objection. I also infer (as I must) from Nesbitt's allegation of "active inattention to or knowing acquiescence in misconduct by law enforcement personnel" that County officers have executed similar wrongful arrests and searches in the past. The existence of a pattern of wrongful arrests and searches, if proved, could conceivably support a Monell claim on a theory of failure to train or supervise. See City of Canton v. Harris,489 U.S. 378, 389 (1989) (deliberately indifferent failure of a municipality to train or supervise its employees yields enterprise liability for the foreseeable constitutional violations of the employees); Batista, 702 F.2d at 397 (persistent failure to discipline subordinates who violate civil rights can lead to the inference of unlawful municipal policy).

Granted, the allegations of the existence of an official policy are not buttressed, in the complaint, by supporting facts. For example, the complaint cites no instances of misconduct beyond the actions involving Nesbitt. But "[t]he complaint . . . need not 'set out in detail the facts upon which' the claim is based." Twombly, 425 F.3d at 107 (quoting Conley, 355 U.S. at 47). It is up to the "liberal discovery rules and summary judgment motions to define disputed facts and issues and to dispose of unmeritorious claims." Swierkiewicz v. Sorema N.A. 534 U.S. 506, 512 (2002); see also Leatherman, 507 U.S. at 168-69.

Moreover, that an allegation is partly conclusory does not warrant dismissal when the County has "fair notice of what the plaintiff's claim is and the grounds upon which it rests." Conley, 355 U.S. at 474. The Second Circuit has defined "fair notice" as "that which will enable the adverse party to answer and prepare for trial, allow the application of res judicata, and identify the nature of the case so that it may be assigned the proper form of trial." Simmons v. Abruzzo, 49 F.3d 83, 86 (2d Cir. 1995) (internal quotation marks omitted). From the allegations stated, the County can affirm or deny the allegation of "active inattention or knowing acquiescence" in misconduct of the kind Nesbitt alleges occurred by, for example, assessing whether other such examples have occurred with any degree of frequency. It can identify whether Nesbitt has alleged similar misconduct in other cases, in order to apply the defense of res judicata. It can prepare for trial on the failure to train and negligent supervision claims. Nesbitt's complaint is therefore legally sufficient under Rule 8.


For the foregoing reasons, I grant the defendants' motion to dismiss Nesbitt's Sixth Amendment claim and deny the motion to dismiss Nesbitt's claims for municipal liability against the County of Nassau.

So ordered.

John Gleeson, U.S.D.J.

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