The opinion of the court was delivered by: Glasser, United States Senior District Judge
On December 18, 2008, plaintiff Kathleen Maier filed a complaint (the "Complaint") against the New York City Police Department ("NYPD"), a Detective Vizcarrondo, NYPD officers identified as John Does 1-10, the New York City Department of Correction ("DOC"), the Warden of Rikers Island Prison (the "Warden") and DOC officers identified as John and Jane Does 11-20. The Complaint alleged causes of action under 42 U.S.C. § 1983 and New York state law.
On June 26, 2009, defendant NYPD by its attorney, the Corporation Counsel of the City of New York, submitted a motion to the Court pursuant to Fed. R. Civ. P. 12(b) to dismiss the plaintiff's claims.*fn1 On July 13, 2009, the Court granted the NYPD's motion and dismissed the Complaint as to all defendants (the "July 13 Order"). In this Amended Order, which replaces the July 13 Order in its entirety, the Court dismisses the state law claims against all defendants and the federal law claims against all defendants except for Det. Vizcarrondo.
The following facts are taken from the allegations contained in the Complaint which, for the limited purposes of this motion, are considered to be true. On December 6, 2007, the plaintiff witnessed misconduct by NYPD officers in the course of a drug arrest and voiced her disapproval to the police involved. (Compl. ¶¶ 1-3.) Those officers reacted to the plaintiff by grabbing her, searching her person, calling her derogatory names and treating her roughly. (Compl. ¶¶ 4-5.) A container of prescription medication was found in the plaintiff's bag and she was arrested for drug possession. (Compl. ¶¶ 5-6.) Following her arrest, the plaintiff was held at Rikers Island prison. (Compl. ¶ 62.) She was released after four days when her criminal prosecution was terminated by the Queens County District Attorney's office. (Compl. ¶¶ 51, 62-64.) During her incarceration, the plaintiff suffered from severe stomach pain, but was denied her prescription medication and other medical care. (Compl. ¶ 63.) She later learned that she was exposed to Hepatitis A while in custody. (Compl. ¶ 64.) The plaintiff was incapacitated by illness for several months following her incarceration. (Plaintiff's Affirmation in Opposition to Motion to Dismiss dated July 13, 2009 ("Pl. Mem."), 2.)
The Complaint alleges that that the defendants violated the plaintiff's First, Fourth and Fourteenth Amendment rights, and further alleges state law causes of action for defamation, intentional infliction of emotional distress, assault, battery, false arrest, false imprisonment, malicious prosecution, conversion, negligent supervision and negligence.
For several months after the Complaint was filed on December 18, 2008, the parties made no additional filings with the Court. On April 21, 2009, Magistrate Judge James Orenstein ordered the following:
No later than May 21, 2009, one of the following events must occur: (a) each defendant must file an answer, (b) the parties must file a stipulation extending the defendants' time to answer, or (c) the plaintiff must file a motion for the entry of a notation of default. If none of the preceding events occurs by the deadline set forth above, I will deem the plaintiff to have abandoned the case and will promptly file a Report and Recommendation urging the assigned District Judge to dismiss the case for failure to prosecute. (Docket No. 2).
On May 21, 2009, Judge Dora Irizarry approved a briefing schedule for the NYPD's proposed motion to dismiss the Complaint that called for the motion to be fully briefed by June 26, 2009.*fn2 On that date, the NYPD submitted its unopposed motion to dismiss pursuant to Fed. R. Civ. P. 12(b). In its motion, the NYPD indicated that it had been served with the summons and Complaint on or about April 16, 2009. (Memorandum of Law in Support of Motion to Dismiss dated June 26, 2009 ("NYPD Mem."), 1.)
This Court then issued the July 13 Order dismissing all of the plaintiff's claims. Claims against the NYPD were dismissed because the NYPD is not a suable entity. Claims against the remaining defendants were dismissed in accordance with Fed. R. Civ. P. 4(m) for the plaintiff's failure to effect service.
Unbeknownst to the Court, minutes before the July 13 Order was docketed, the plaintiff filed her "Affirmation in Opposition" which included a document entitled "Notice of Kathleen Maier's Intention to File a Claim," notarized and signed by the plaintiff on August 27, 2008, and an "Affidavit of Service" dated April 16 or April 17, 2009, for each of defendants NYPD, DOC, Det. Vizcarrondo and the Warden. The Court stayed the July 13 Order and the NYPD filed a reply on July 29, 2009.
1. The NYPD and the DOC are not Suable Entities
Section 396 of the New York City Charter states: "All 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." Courts have uniformly understood this provision to mean that "[t]he New York City Police Department is an organizational subdivision of the City of New York, lacking independent legal existence and as such is not a suable entity." Rossi v. New York City Police Dep't, No. 94 Civ. 5113 (JFK), 1998 WL 65999, at * 5 (S.D.N.Y. Feb. 17, 1998). See Jenkins v. City of New York, 478 F.3d 76, 93 n. 19 (2d Cir. 2007) (New York City Police Department is not a suable entity); Goode v. Winkler, No. 97 Civ. 8999 (SAS), 1999 WL 1067959, at *3 (S.D.N.Y. Nov. 23, 1999) (collecting cases). Similarly, the DOC is not a suable entity. Adams v. Galletta, 966 F. Supp. 210, 212 (E.D.N.Y. 1996) ("where a plaintiff has named the Department of Corrections as a defendant he has sued a non-suable entity"). Accordingly, all claims are dismissed against the NYPD and the DOC.
At times, courts have construed claims against city agencies as claims against the City of New York. Cameron v. Coach Apparel Store, No. 07 Civ. 3991 (BSJ), 2009 WL 536068, *2 (S.D.N.Y. Mar. 3, 2009) ("Keeping in mind that Plaintiff appears pro se, the Court will construe his claims against the New York Police Department... which is not a suable entity, as being claims against the City of New York). See Morales v. New York City Police Dept., No. 97 Civ. 7151(MGC), 1999 WL 169533, *1 (S.D.N.Y. Mar. 25, 1999) ("a case against the Police Department or any other non-suable agency of the City is really a suit against the City itself, which is a suable entity.... [t]herefore, contrary to the Police Department's arguments, this suit should not be dismissed for failure to sue a suable entity") (complaint dismissed on other grounds). However, even if the claims against the NYPD and the DOC could be converted by this Court into claims against the City of New York, the Complaint fails to state a claim of municipal liability under § 1983. "In order to establish the liability of a municipality in an action under § 1983 for unconstitutional acts by a municipal employee below the policymaking level, a plaintiff must establish that the violation of his constitutional rights resulted from a municipal custom or policy." Vann v. City of New York, 72 F.3d 1040, 1049 (2d Cir. 1995) (collecting cases). A municipality cannot be made liable under § 1983 for acts of its employees by application of the doctrine of ...