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Victor Perez v. New York City Department of

August 27, 2012


The opinion of the court was delivered by: Roslynn R. Mauskopf, United States District Judge.


Plaintiff pro se, presently an inmate at the Auburn Correctional Facility, commenced this action on June 9, 2010, for civil rights violations stemming from injuries he sustained when another inmate allegedly assaulted him at Rikers Island. (Doc. No. 1.) On June 25, 2010, the case was referred to the Honorable Magistrate Judge Robert M. Levy for pretrial supervision. (Doc. No. 4.)*fn1 By motion filed January 25, 2012, plaintiff sought leave to file an amended complaint adding numerous defendants, including the City of New York and sixteen employees of the City of New York Department of Correction ("DOC"). (Doc. No. 29.) Judge Levy granted plaintiff's motion as to Correction Officer Thomas Howell, but reserved decision as to all remaining additional defendants. (Text Order, dated Feb. 7, 2012.) On March 29, 2012, Judge Levy issued a Report and Recommendation (the "R&R") recommending that the remainder of the motion be denied. (Doc. No. 34.) Presently before the Court is plaintiff's objection to the R&R (Doc. Nos. 37, 39) ("Pl. Opp.") and defendants' response thereto (Doc. No. 38). For the reasons that follow, the Court adopts Judge Levy's R&R in its entirety. However, the Court also grants plaintiff leave to amend his complaint, based on plaintiff's latest submissions, against the City of New York.


Rule 72 of the Federal Rules of Civil Procedure permits magistrate judges to conduct proceedings on dispositive pretrial matters without the consent of the parties. Fed. R. Civ. P. 72(b). Any portion of a report and recommendation on dispositive matters, to which a timely, specific objection has been made, is reviewed de novo. Id.; see also Thomas v. Arn, 474 U.S. 140, 149 (1985); DiPilato v. 7-Eleven, Inc., 662 F. Supp. 2d 333, 340 (S.D.N.Y. 2009). The district court is not required to review de novo, and may instead review for clear error, those portions of a report and recommendation to which no specific objections are addressed. See DiPilato, 662 F. Supp. 2d at 339. Where an objection consists of "conclusory or general arguments," or is merely an "attempt to engage the district court in rehashing of the same arguments set forth in the original petition" clear error review is appropriate. Id. Even considering the lenient standard normally afforded to the objections of a pro se party, such as plaintiff in this case, objections must still be "specific and clearly aimed at particular findings" so as to prevent "relitigating a prior argument." Id. at 340. After review, the district judge may accept, reject, or modify any of the magistrate judge's findings or recommendations. Fed. R. Civ. P. 72(b)(3).

Plaintiff's objections to the R&R consist primarily of new factual allegations or more detailed explanations for the conclusory factual allegations he presented to Judge Levy in the proposed amended complaint. As far as a challenge to Judge Levy's R&R, plaintiff's submission is unacceptable. See Rivera v. Federlin, No. 08 Civ. 7293(PAC), 2011 WL 6014012, at *3 (S.D.N.Y. Dec. 2, 2011) (finding that "new factual allegation[s]" raised for the first time in an objection are not valid "objection[s]" and "will not be considered by the Court"); Forman v. Artuz, 211 F. Supp. 2d 415, 418-19 n.8 (S.D.N.Y. 2000) (stating that "factual assertions" may not be "properly raised" for the first time in an objection). Because plaintiff has wholly failed to make objections based on the proposed amended complaint at issue, the Court has reviewed Judge Levy's well-reasoned R&R for clear error and, finding none, adopts the R&R in its entirety. Thus, Plaintiff's motion to amend (Doc. No. 29) is DENIED, except as to Officer Howell.

Ordinarily, that would end the issue. However, the Court is ever mindful of its obligation to read pro se pleadings liberally and grant leave to amend "when a liberal reading of the complaint gives any indication that a valid claim might be stated." Shomo v. City of N.Y., 579 F.3d 176, 183 (2d Cir. 2009) (quotation marks omitted). Plaintiff makes new allegations in his opposition to the R&R which, out of an abundance of caution and in the interest of efficiency, the Court will review in the first instance as yet another motion to amend.

I.Renewed Motion to Amend

Federal Rule of Civil Procedure 15(a) instructs the courts to freely grant leave to amend "when justice so requires." Fed. R. Civ. P. 15(a)(2). However, the Court may still deny leave to amend "in instances of futility." Burch v. Pioneer Credit Recovery, Inc., 551 F.3d 122, 126 (2d Cir. 2008) (citing Foman v. Davis, 371 U.S. 178, 182 (1962)). A proposed amendment is futile if "the proposed claim could not withstand a Fed. R. Civ. P. 12(b)(6) motion to dismiss." Cummings-Fowler v. Suffolk Cnty. Comty. Coll., - - - F. Supp. 2d - - - -, No. 09 Civ. 3593(ADS), 2012 WL 1341489, at *5 (E.D.N.Y. Apr. 18, 2012) (citing Lucente v. IBM Corp., 310 F.3d 243, 258 (2d Cir. 2002)).*fn2 To withstand a motion to dismiss, "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, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). In making such an assessment, federal courts are also "obligated to construe a pro se complaint liberally." Harris v. Mills, 572 F.3d 66, 71-72 (2d Cir. 2009).

a.Proposed Monell Claim Against the City of New York

To establish a municipal liability claim under § 1983, the plaintiff must show that his constitutional rights were violated as the result of a policy, custom or practice of the municipality. Monell v. Dep't of Soc. Servs., 436 U.S. 658, 694 (1978). If, as alleged here, the unlawful practice resulted from the actions of subordinate employees, the practice must be "so manifest as to imply the constructive acquiescence of senior policy-making officials." Sorlucco v. N.Y.C. Police Dep't, 971 F.2d 864, 870-71 (2d Cir. 1992); see also Amnesty Am. v. Town of West Hartford, 361 F.3d 113, 126-27 (2d Cir. 2004) (finding that practice must be so prevalent as to demonstrate the municipality's "deliberate indifference to constitutional deprivations"); Abreu v. City of N.Y., 657 F. Supp. 2d 357, 360-61 (E.D.N.Y. 2009) ("It is well established that a plaintiff may establish [the] required causal link by showing that a defendant was deliberately indifferent to the training, supervision, or discipline of its employees.").

Plaintiff alleges that he was attacked at Rikers Island by a gang member, who was directed to do so by DOC officers, and that DOC has a custom or policy of using gang members as "enforcers throughout various facilities on Rikers Island." (Doc. No. 29-1 at 6; Doc. No. 37 at 3.) In support, Plaintiff now points to a settlement in a lawsuit by another prison inmate, as well as articles from the Village Voice, Newsday, the Wall Street Journal and the "Wiki Commons Blog" discussing alleged assaults on inmates by DOCS officers, including some in which the officers used inmates as "enforcers." (Pl. Opp., Doc. 37 at 3-4.) Plaintiff asserts that these sources are sufficient to raise a plausible claim that what happened to plaintiff was the result of deliberate indifference to a custom, policy and practice giving rise to Monell liability on the part of the City of New York. Plaintiff's claim must be rejected.

First, plaintiff's attempt to rely on the settlement in Ingles v. Toro, 438 F. Supp. 2d 203 (S.D.N.Y. 2006) is inapposite. Ingles was a class action certified in 2003 alleging that DOC employees, themselves, used excessive force when punishing inmates for minor misconduct, and as such, is wholly unrelated to the pattern and practice that plaintiff attempts to rely on here, that is, that officers used inmates to carry out on their behalf retaliatory assaults on other inmates. See id. at 207.

Moreover, plaintiff relies on unsubstantiated and general allegations in newspaper articles and a blog post in an effort to suggest that the conduct described therein did, in fact, occur, and in the manner recounted. But even assuming these incidents occurred, plaintiff does not allege who, if anyone, at DOCS and/or the City knew about the alleged incidents, or how and through whom these entities may have responded to the alleged incidents. While a court may consider complaints made against a municipality and its response to them to determine whether the municipality acted with deliberate indifference, see Fiacco v. City of Rensselaer, 783 F.2d 319, 327-28 (2d Cir. 1986), the sources on which plaintiff attempts to rely do not support an inference of deliberate indifference against DOCS and/or the City sufficient to give rise to a Monell claim. See Delrosario v. City of New York, No. 07-Civ-2207(RJS), 2010 U.S. Dist. LEXIS 20923 at *18-19(S.D.N.Y. Mar. 4, 2010); see also McAllister v. New York City Police Dep't, 49 F. Supp. 2d 688, 706 n.12 (S.D.N.Y. 1999) (collecting cases). Nor does plaintiff allege anything other than his own conclusory statements to suggest that there is any causal connection between the alleged incidents and the alleged deprivation of plaintiff's constitutional rights. 707, n.13; see also Plair v. City of New York, 789 F. Supp. 2d 459 (S.D.N.Y. 2011) (allegations of prior violence in New York City correctional facilities with no temporal or other connection to claim at bar held insufficient to raise policy or custom at the DOC); cf. Bektic-Marrero v. Goldberg, - -- F. Supp. 2d - - - -, No. 11 Civ. 1781(CM), 2012 WL 733875, at *11-12 (S.D.N.Y. Mar. 7, 2012) (denying motion to dismiss Monell claim where plaintiff's allegations were "distressingly reminiscent" of widespread problems identified in a government report).

Finally, a plaintiff asserting a Monell claim may plead repeated constitutional violations which are sufficiently pervasive as to suggest acquiescence on the part of the City's policymakers. City of St. Louis v. Praprotnik, 485 U.S. 112, 127 S. Ct. 915, 99 L. Ed. 2d 107 (1988); see also Sorlucco v. New York City Police Deparment, 971 F.2d 864, 870 (2d. Cir. 1992) (municipality may not be held liable under Section 1983 for isolated unconstitutional acts of its employees). The articles cited by plaintiff, if true, at best cite a handful of instances the specifics of which are not clear. Reading his allegations as strongly as possible in his favor in this regard, plaintiff has not pled sufficient facts ...

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