UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF NEW YORK
August 19, 2009
SHIRLEY MORTON, PLAINTIFF,
THE CITY OF ALBANY, KEVIN MCKENNA, INDIVIDUALLY AND IN HIS CAPACITY AS A POLICE OFFICER, PETER NOONAN, INDIVIDUALLY AND IN HIS CAPACITY AS A POLICE OFFICER, LEONARD CROUCH, INDIVIDUALLY AND IN HIS CAPACITY AS A POLICE OFFICER, AND JAMES TUFFEY, INDIVIDUALLY AND IN HIS CAPACITY AS CHIEF OF THE ALBANY POLICE DEPARTMENT, DEFENDANTS.
The opinion of the court was delivered by: Thomas J. McAVOY, Senior United States District Judge
DECISION & ORDER
Plaintiff commenced this action asserting claims pursuant to 42 U.S.C. § 1983 and state law. See Compl., dkt. # 1. Defendants move to dismiss portions of the complaint pursuant to Fed. R. Civ. P. 12(b)(6). Def. Motion, dkt. # 4. Plaintiff opposes the motion and cross-moves for leave to file an amended complaint. Pl. Op. & Cross-Motion, dkt. # 20. Defendants oppose the cross-motion on the ground that the proposed amendments would not cure the asserted defects in the original pleading and, thus, amendment would be futile. Def. Opp., dkt. # 23.
II. STANDARD OF REVIEW
Because the proposed amendment is intended to cure the asserted factual defects in the Complaint, see Greenberg Aff. ¶ 7,*fn1 and because "[t]he court should freely give leave [to amend]" except when, inter alia, amendment would be futile, Fed. R. Civ. P. 15(a)(2); Cuoco v. Moritsugu, 222 F.3d 99, 112 (2d Cir. 2000), the Court will review the claims in the proposed Amended Complaint pursuant to Rule 12(b)(6).
To withstand a Rule 12(b)(6) motion, a "complaint must contain sufficient factual matter, accepted as true, to 'state a claim to relief that is plausible on its face.'" Ashcroft v. Iqbal, 129 S.Ct. 1937, 1949-50 (2009)(quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007)). "A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Id. (citing Twombly, 550 U.S. at 557). Plausibility means "more than a sheer possibility that a defendant has acted unlawfully," and a complaint that pleads facts "that are 'merely consistent with' a defendant's liability  'stops short of the line between possibility and plausibility of 'entitlement to relief."" Id. (quoting Twombly, 550 U.S. at 557).
While the Rule 12(b)(6) standard has long required that a court accept as true the allegations contained in a complaint, this rule does not apply to legal conclusions or to "[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory statements." Id. (citing Twombly, 550 U.S. at 555). The liberality accorded pleadings under Rule 8 "does not unlock the doors of discovery for a plaintiff armed with nothing more than conclusions. [O]nly a complaint that states a plausible claim for relief survives a motion to dismiss." Id., at 1950 (citing Twombly, 550 U.S. at 556).
Plaintiff was a civilian employee of the Albany Police Department serving as a clerk- typist in the Traffic Safety Division. Plaintiff's supervisor was Defendant Kevin McKenna. "While under the supervision of Kevin McKenna, Plaintiff was subjected to inappropriate behavior by Kevin McKenna." Proposed Amend. Compl. ("Am. Compl.") ¶ 19. Plaintiff reported the "inappropriate behavior" to Defendant Leonard Crouch, McKenna's supervisor, and to other supervisors within the Albany Police Department, but no action was taken to "deal with Plaintiff's complaints." Id. ¶¶ 24-27.
On January 2, 2008, while at work, Defendant Peter Noonan provided a handgun to McKenna and told McKenna that the handgun was loaded. McKenna "took the handgun and pointed it at the Plaintiff from approximately six feet away." Id. ¶ 32. Noonan pushed McKenna's hand down, but McKenna again pointed the gun at Plaintiff. Noonan then walked away.
Plaintiff asserts that McKenna "had previously engaged in improper and inappropriate use of firearms, and defendant, the City of Albany, knew, or should have known of Kevin McKenna's propensity to misuse firearms." Id. ¶ 36. She contends that the Albany Police Department had been "lax in its oversight of firearms and their use by police officers," and that, "[u]pon information and belief, prior to January 2, 2008, officers of the Albany Police Department engaged in 'horseplay' with firearms while on duty, including aiming firearms at each other." Id. ¶¶ 37-38. Based on the content of a July 2, 2008 newspaper article, Plaintiff asserts that Chief Tuffey was aware that officers of the Albany Police Department had been involved in the illegal purchase of firearms yet the City of Albany "failed to institute policies or procedures in order to discourage the unauthorized and improper purchase and use of firearms." Id. ¶ 39. She further asserts that, "[u]pon information and belief, civilian employees of the Albany Police Department have been subjected to a pattern of harassment by the police officers of the Albany Police Department." Id. ¶ 40.
Based upon these allegations, Plaintiff pleads that James Tuffey, as Chief of Police for the Albany Police Department, has created policies and customs under which unconstitutional practices have occurred, including but not limited to, the harassment of Plaintiff, the use of excessive force against Plaintiff, the illegal seizure of Plaintiff, and the deprivation of Plaintiff's right to equal protection under law.
Id. ¶ 41. She further pleads that "James Tuffey was grossly negligent in supervising subordinates, including but not limited to, Kevin McKenna and Peter Noonan, and as a result of his grossly negligent supervision, Plaintiff's constitutional rights were violated." Id. ¶ 43.
Plaintiff contends that McKenna's conduct amounted to common law assault, id. ¶¶ 44-49 ("Count I"), wrongful imprisonment, id. ¶¶ 50-56 ("Count II"), intentional infliction of emotional distress, id. ¶¶ 57-63 ("Count III"), and a violation of her constitutional rights "to be free from improper seizure, to be free from unreasonable force, and to enjoy the equal protection of law." Id. ¶ 75, see id. ¶¶ 74-77 ("Count VI"). Plaintiff also sues Peter Noonan, Leonard Crouch, and James Tuffey in Count VI, although she does not allege any further facts elucidating their individual involvement in the asserted constitutional violations. Plaintiff further contends that Noonan is liable for the asserted constitutional violations perpetrated by McKenna because Noonan failed to intervene to prevent McKenna's conduct. Id. ¶¶ 78-82 ("Count VII").
Plaintiff also sues the City of Albany under a common law theory of negligent hiring, retention, and/or supervision, id. ¶¶ 64-70 ("Count IV"), and a Monell*fn3 theory of failure to train or supervise. Id. ¶¶ 83-91. She sues all defendants under a common law theory of negligence asserting that "the defendants, their agents, servants and/or employees were negligent, reckless and careless in the ownership, operation, maintenance, control, possession of the aforesaid handgun." Id. ¶ 71, see id. ¶¶ 71-73 ("Count V"). Additionally, Plaintiff sues all defendants asserting that their conduct deprived her of "the rights, privileges and immunities secured by the Constitution of the State of New York, including, but not limited to Plaintiff's right to be free from improper seizure, to be free from unreasonable force, and to enjoy the equal protection of law." Id. ¶ 92, see id. ¶¶ 92-95 ("Count IX").
a. Section 1983 Liability
"Section 1983 itself creates no substantive rights; it provides only a procedure for redress for the deprivation of rights established elsewhere." Deniran v. Mattingly, 2009 WL 857621, at *5 (S.D.N.Y. Mar. 31, 2009). In order to allege a viable Section 1983 claim, Plaintiff must allege facts demonstrating that: (1) she suffered "the violation of a right secured by the Constitution and laws of the United States" and (2) "the alleged deprivation was committed by a person acting under the color of state law." West v. Atkins, 487 U.S. 42, 48, 108 S.Ct. 2250, 101 L.Ed.2d 40 (1988).
1. Fourth Amendment Unlawful Seizure
Plaintiff asserts that she was unlawfully seized by Officer McKenna in violation of her rights secured by the Fourth Amendment. Such claims are colloquially referred to as false arrest or false imprisonment claims and are substantially the same as claims for false arrest under New York law. Guadagni v. N.Y.C. Trans. Auth., 2009 WL 1910953, at * 4 (E.D.N.Y. June 30, 2009);*fn4 see also Ostroski v. Town of Southold, 443 F. Supp.2d 325, 334 (E.D.N.Y. 2006).*fn5 "To state a claim for false arrest or false imprisonment under New York law, a plaintiff must show that: (1) the defendant intentionally confined the plaintiff; (2) the plaintiff was conscious of the confinement; (3) the plaintiff did not consent to the confinement; and (4) the confinement was not otherwise justified." Guadagni, 2009 WL 1910953, at * 4 (citing Savino v. City of N.Y., 331 F.3d 63, 75 (2d Cir. 2003)).
While a § 1983 false arrest claim against a police officer must be based upon an unjustified seizure of the plaintiff by the officer, "[n]ot every encounter between a police officer and an individual is a seizure implicating the fourth amendment's protections." United States v. Lee, 916 F.2d 814, 819 (2d Cir. 1990)(citations omitted). "Rather, an individual can be said to have been seized by the police only if, in view of all of the circumstances surrounding the incident, a reasonable person would have believed that he was not free to leave." Id. (citations and interior quotation marks omitted); see Brown v. Sweeney, 526 F. Supp.2d 126, 132 (D. Mass. 2007).*fn6
Essentially, this inquiry is an objective assessment of the overall coercive effect of the police conduct. Factors which might suggest a seizure therefore include: the threatening presence of several officers; the display of a weapon; physical touching of the person by the officer; language or tone indicating that compliance with the officer was compulsory; prolonged retention of a person's personal effects, such as airplane tickets or identification; and a request by the officer to accompany him to the police station or a police room.
Lee, 916 F.2d at 819 (citing, inter alia, Michigan v. Chesternut, 486 U.S. 567, 573 108 S.Ct. 1975, 100 L.Ed.2d 565 (1988)). The test is imprecise "[b]ecause it is designed to assess the coercive effect of police conduct, taken as a whole, rather than to focus on particular details of that conduct in isolation." Chesternut, .486 U.S. at 573, 108 S.Ct. at 1979, 100 L.Ed.2d at 571.
In support of the motion to dismiss the Complaint, Defendants argued that Plaintiff failed to plead a cognizable Fourth Amendment seizure claim because:
[n]owhere in the Complaint is it alleged that there was a significant interpretation of Ms. Morton's liberty of movement or that it was a significant limitation on her freedom, nor is it alleged that she believed that there was a limitation of her movement or that she was prevented from moving. It is merely alleged that McKenna pointed a gun in her direction twice for several seconds.
Def. Mem. L. p. 17.*fn7
Defendants are correct that the Complaint contains no direct allegation that Plaintiff's liberty of movement was curtailed, and the proposed Amended Complaint provides no additional factual allegations to cure this asserted-defect. See e.g. Greenberg Aff. Ex. 2.*fn8 However, both the Complaint and the proposed Amended Complaint contain the following allegations in Count II ("Wrongful Imprisonment as to Defendant Kevin McKenna") of each pleading:
41/51.*fn9 On January 2, 2008, defendant Kevin McKenna intended to confine the Plaintiff.
42/52. Plaintiff was conscious of the confinement. 43/53. The confinement was not privileged.
Count VI in both the Complaint and proposed Amended Complaint (the count asserting Plaintiff's Section 1983 claims) incorporates by reference all of the preceding allegations. Thus, the question is whether the allegations are sufficient to present a plausible Fourth Amendment false arrest claim, or whether the allegations amount to a common law tort claim that, while wrongful, does not constitute a violation of the Fourth Amendment. The Court finds that it is the latter.
When a police officer points a handgun at a private citizen, images are invoked of the classic show of police force used to curtail a criminal suspect's freedom. However, on January 2, 2008, McKenna pointed the handgun at Plaintiff while the two were working together in the police station. McKenna was not instituting a police arrest and there are no allegations of the classic hallmarks that accompany a formal arrest.*fn10 More importantly, there is no allegation that McKenna said anything that would lead an objectively reasonable person to conclude that McKenna raised the weapon intending it to be a show of force to restrain Plaintiff's freedom of movement.*fn11
Even though Plaintiff was placed in a threatening position by McKenna's actions, the threat was to bodily injury, not to being arrested or confined. The allegations, taken as whole, tend to indicate that McKenna's action on January 2, 2008 was a form of the reckless "horseplay with firearms while on duty" that officers within the Albany Police Department had previously engaged in, or, if intentionally directed at Plaintiff, was a continuation of the harassment that McKenna had perpetrated upon Plaintiff. See Prop. Am. Compl. ¶¶ 27-28;*fn12 ¶ 38;*fn13 ¶ 40.*fn14 While the Court certainly does not condone McKenna's behavior or wish to diminish the seriousness of his actions,*fn15 Plaintiff has asserted, at most, the threadbare recitals of the elements of a unlawful seizure claim. The allegations merely raise the possibility of a viable false arrest claim. However, as the Supreme Court has stated, "[t]he plausibility standard is not akin to a 'probability requirement,' but it asks for more than a sheer possibility that a defendant has acted unlawfully." Iqbal, 129 S.Ct. at 1949. "Where a complaint pleads facts that are merely consistent with a defendant's liability, it stops short of the line between possibility and plausibility of entitlement to relief." Id. at 1949-50 (internal quotations and citation omitted). "[W]here the well-pleaded facts do not permit the court to infer more than the mere possibility of misconduct, the complaint has alleged - but it has not shown - that the pleader is entitled to relief." Id. at 1950 (internal citations and quotation omitted).
Without factual allegations supporting the inference that McKenna's conduct on January 2, 2008 was undertaken to confine Plaintiff as opposed to scare or menace her, Plaintiff has not asserted a plausible unlawful Fourth Amendment seizure claim. See Fuller v. Vines, 36 F.3d 65, 68 (9 th Cir. 1994),*fn16 overruled on other grounds by Robinson v. Solano County, 278 F.3d 1007 (9th Cir. 2002); Brown, 526 F. Supp.2d at 133;*fn17 see also Palmieri v. Town of Babylon, 2008 WL 3155153, at * 13 (E.D.N.Y. 2008).*fn18 The Complaint and the proposed Amended Complaint are legally insufficient in this regard.
Further, and although not raised by Defendants, the allegations in the Complaint and in the proposed Amended Complaint do not support the proposition that McKenna's action on January 2, 2008 was taken under color of state law. "The traditional definition of acting under color of state law requires that the defendant in a § 1983 action have exercised power possessed by virtue of state law and made possible only because the wrongdoer is clothed with the authority of state law." Carlos v. Santos, 123 F.3d 61, 65 (2d Cir.1997)(quotation marks and citations omitted). "Courts have had frequent occasion to interpret the term 'color of law' for the purposes of section 1983 actions, and it is by now axiomatic that 'under 'color' of law means under 'pretense' of law' and that 'acts of officers in the ambit of their personal pursuits are plainly excluded.'" Pitchell v. Callan, 13 F.3d 545, 547-548 (2d Cir. 1995) (quoting Screws v. United States, 325 U.S. 91, 111, 65 S.Ct. 1031, 1040, 89 L.Ed. 1495 (1945)). "In assessing whether a police officer acted under color of law, the court looks beyond whether the officer was on or off duty." Perez v. City of New York, 1999 WL 1495444, at * 2 (E.D.N.Y. Nov. 19, 1999)(citing Pitchell, 13 F.3d at 548). Liability against a police officer under Section 1983 may be found where a police officer, whether on or off duty, "invokes the real or apparent power of the police department" or performs "duties prescribed generally for police officers." Pitchell, 13 F.3d at 548 (citations omitted). "In short, courts look to the nature of the officer's act, not simply his duty status." Id.
As indicated, there is no allegation that McKenna was performing his official or customary police function or duties when he pointed the gun at Plaintiff. See West v. Atkins, 487 U.S. 42, 50, 108 S.Ct. 2250, 2256 (1988).*fn19 Instead, the allegations indicate that the conduct was in pursuit of a private dispute between Plaintiff and McKenna, and there is no allegation that McKenna invoked the real or apparent power of the police department in the course of his conduct. McKenna was clearly acting outside the scope of the authority afforded to him by virtue of his employment, and he did not use the cloak of his authority under state law to perpetrate his conduct toward Plaintiff. Therefore, even assuming that Plaintiff has asserted a plausible false arrest claim, she has failed to assert facts that would establishing that the conduct was taken under color of state law. See Bonsignore v. City of New York, 683 F.2d 635, 638-39 (2d Cir. 1982);*fn20 McNamara v. City of New York, 2009 WL 735135, at * 3 (S.D.N.Y. March 20, 2009);*fn21 Grigorov v. Cerasani, 1991 WL 28195, at * 3 (E.D.N.Y. Feb. 15, 1991).*fn22
Accordingly, Plaintiff's Fourth Amendment illegal seizure claim in the Complaint is dismissed. Because the proposed amendment to the Complaint would not cure the defects in this claim, the motion for leave to amend this claim is denied as futile.
2. Fourth Amendment Excessive Force
The Fourth Amendment also protects individuals from the use of excessive force in the course of an arrest by a police officer. See Graham v. Connor, 490 U.S. 386, 395, 109 S.Ct. 1865, 1971, 104 L.Ed.2d 443 (1989).*fn23 However, because Plaintiff has not asserted sufficient facts in either the Complaint or the proposed Amended Complaint demonstrating that she was arrested, the protections of the Fourth Amendment relative to arrests are not implicated. Further, as indicated above, Plaintiff has not asserted facts that would establish that McKenna's action, even if taken in the course of a de facto arrest, was taken under color of state law. Accordingly, Plaintiff's Fourth Amendment excessive force claim is dismissed, and leave to file the proposed amendment is denied as futile.
3. Fourteenth Amendment Equal Protection
The Fourteenth Amendment's Equal Protection Clause "is basically a direction that all persons similarly situated should be treated alike." City of Cleburne v. Cleburne Living Center, 473 U.S. 432, 439 (1985). In order to prevail on an equal protection claim, Plaintiff must establish that (1) she was treated differently than others similarly situated, and (2) this differential treatment was motivated by an intent to discriminate on the basis of race, to punish or inhibit the exercise of constitutional rights, or by a malicious or bad faith intent to injure the person. Diesel v. Town of Lewisboro, 232 F.3d 92, 103 (2d Cir. 2000); Lovell v. Comsewogue Sch. Dist., 214 F. Supp.2d 319, 321-22 (E.D.N.Y. 2003).
Plaintiff has not alleged that she was treated differently than others similarly situated within the Albany Police Department, and, instead, the allegations in the proposed Amended Complaint tend to indicate that her treatment by Defendant McKenna was in keeping with a practice within the Department which condoned harassment of civilian employees by uniformed police officers. See Am. Compl. ¶ 40. She has not asserted that any similarly situated employee was treated differently than she or that she was harassed with an intent to discriminate on the basis of race, to punish or inhibit her exercise of constitutional rights, or by a malicious or bad faith intent to injure her. She asserts, at most, a "class of one" theory of equal protection*fn24 that the Supreme Court has rejected in the public employment context. Engquist v. Oregon Department of Agriculture, --- U.S. ----, 128 S.Ct. 2146, 2151, 170 L.Ed.2d 975 (2008).*fn25 Therefore, any equal protection claim asserted in the Complaint or proposed Amended Complaint must be dismissed. See Conyers v. Rossides, 558 F.3d 137, 152 (2d Cir. 2009).*fn26
4. Failure to Intervene, Monell, and Supervisory Liability
Because Plaintiff has not asserted an actionable violation of her federal constitutional rights, her Section 1983 claims premised upon the theories of the failure to intervene, see O'Neill v. Krzeminski, 839 F.2d 9, 11 (2d Cir. 1988);*fn27 Monell liability, see Roe v. City of Waterbury, 542 F.3d 31, 36 (2d Cir. 2008);*fn28 and supervisory liability, see Colon v. Coughlin, 58 F.3d 865, 873 (2d Cir. 1995),*fn29 must also be dismissed.
b. State Law Claims
Having dismissed all federal causes of action, the Court finds that concerns for judicial economy, convenience, fairness, and comity weigh against retaining supplemental jurisdiction over the remaining state law claims. Therefore, the Court declines to exercise supplemental jurisdiction over the remaining state law causes of action and those claims are dismissed without prejudice to refiling in state court. See 28 U.S.C. § 1367(c)(3);*fn30
Carnegie-Mellon Univ. v. Cohill, 484 U.S. 343, 350 n. 7 (1988);*fn31 Straker v. N.Y.C. Trans. Auth., 2009 WL 1796542, at * 1 (2d Cir. June 25, 2009)(summary order);*fn32 N.Y. Mercantile Exch., Inc. v. Intercontinental Exch., Inc., 497 F.3d 109, 119 (2d Cir. 2007).*fn33
For the reasons discussed above, Defendants' motion [dkt. # 4] is GRANTED and Plaintiff's claims pursuant to 42 U.S.C. § 1983 are DISMISSED .
Plaintiff's cross-motion for leave to file an Amended Complaint [dkt. # 20] is DENIED as futile.
The Court declines to exercise supplemental jurisdiction over Plaintiff's state law claims, and all such claims are DISMISSED WITHOUT PREJUDICE to refiling in state court.
IT IS SO ORDERED.