United States District Court, N.D. New York
ERIC J. JACKSON, Plaintiff,
MARK WILLIAMS, et al., Defendants.
DECISION AND ORDER
LAWRENCE E. KAHN JUDGE
matter comes before the Court following an Order and
Report-Recommendation filed on November 16, 2016, by the
Honorable Christian F. Hummel, U.S. Magistrate Judge,
pursuant to 28 U.S.C. § 636(b) and Local Rule 72.3. Dkt.
No. 8 (“Report-Recommendation”).
fourteen days after a party has been served with a copy of a
magistrate judge's report-recommendation, the party
“may serve and file specific, written objections to the
proposed findings and recommendations.” Fed.R.Civ.P.
72(b); L.R. 72.1(c). If no objections are made, or if an
objection is general, conclusory, perfunctory, or a mere
reiteration of an argument made to the magistrate judge, a
district court need review that aspect of a
report-recommendation only for clear error. Barnes v.
Prack, No. 11-CV-857, 2013 WL 1121353, at *1 (N.D.N.Y.
Mar. 18, 2013); Farid v. Bouey, 554 F.Supp.2d 301,
306-07, 306 n.2 (N.D.N.Y. 2008); see also Machicote v.
Ercole, No. 06-CV-13320, 2011 WL 3809920, at *2
(S.D.N.Y. Aug. 25, 2011) (“[E]ven a pro se party's
objections to a Report and Recommendation must be specific
and clearly aimed at particular findings in the
magistrate's proposal, such that no party be allowed a
second bite at the apple by simply relitigating a prior
argument.”). “A [district] judge . . . may
accept, reject, or modify, in whole or in part, the findings
or recommendations made by the magistrate judge.” 28
U.S.C. § 636(b).
objections were filed in the allotted time period. Docket.
Accordingly, the Court has reviewed the Report-Recommendation
for clear error. The Report-Recommendation misstates several
aspects of municipal-liability doctrine, and it recommends
that the Court let in three claims that must be dismissed,
albeit with leave to amend.
the Report-Recommendation suggests that “for purposes
of Monell claims, a police chief is considered to
hold a position of final policymaking authority.”
Rep.-Rec. at 9. That is not quite right. The case the
Report-Recommendation cites for this proposition illustrates
the confusion underlying it. In Birmingham v. Ogden,
70 F.Supp.2d 353, 373 (S.D.N.Y. 1999), the court said it was
“indisputable” that the police chief in that case
qualified as a policymaker. But the court clarified that the
mere “fact that a particular official-even a
policymaking official-has discretion in the exercise of
particular functions does not, without more, give rise to
municipal liability based on an exercise of that
discretion.” Id. at 374 (quoting Pembaur
v. City of Cincinnati, 475 U.S. 469, 481 (1986)).
“[T]he decisionmaker must [also] be responsible for
establishing final government policy respecting the
particular activity before the municipality can be
liable.” Id. Moreover, “the critical
inquiry is not whether an official generally has final
policymaking authority; rather, the court must specifically
determine whether the government official is a final
policymaker with respect to the particular conduct challenged
in the lawsuit.” Roe v. City of Waterbury, 542
F.3d 31, 37 (2d Cir. 2008). And “[w]hether . . . a
single individual possesses final policymaking authority is
an issue of state law.” Baity v. Kralik, 51
F.Supp.3d 414, 436-37 (S.D.N.Y. 2014) (quoting Chin v.
N.Y.C. Hous. Auth., 575 F.Supp.2d 554, 562 (S.D.N.Y.
these principles, it is not surprising that some courts have
found that certain police chiefs were not final policymakers
with respect to particular issues. See, e.g.,
Rissetto v. County of Clinton, No. 15-CV-720, 2016
WL 4530473, at *27 (N.D.N.Y. Aug. 29, 2016) (dismissing a
claim against the town sheriff because the complaint failed
to allege facts suggesting that he “acted as a
policymaker for the [relevant] purposes”); Hardy v.
Town of Greenwich, No. 06-CV-833, 2009 WL 2176117, at *4
(D. Conn. July 22, 2009) (“[W]hile [the Police Chief] .
. . had broad discretion over appointment of particular
officers to specialized units, he did not exercise final
policymaking authority in this area [because] local law
clearly establishes the First Selectman, who is also the lone
Police Commissioner, as the final policymaker for the Town of
Greenwich with regard to employment policy within the Police
Department.”); Russo v. City of Hartford, 341
F.Supp.2d 85, 108 (D. Conn. 2004) (holding that while the
police chief did “exercise discretionary
authority” in several respects, his “exercise of
this discretion [did] not necessarily compel the conclusion
that [he] was a policymaker the purpose of establishing
municipal liability” because it was
“uncontroverted that the City Charter vest[ed]
policymaking authority in the City Council and the City
Manager”); Birmingham, 70 F.Supp.2d at 374
(dismissing Monell claim because, while it was clear
that the police chief and mayor were policymakers,
“neither party . . . ha[d] . . . presented the court
with law or evidence regarding the policymaking authority . .
. of the Board of Police Commissioners with respect to final
personnel actions”). It is therefore incorrect to say
that police chiefs necessarily are final policymakers.
the Report-Recommendation provides a misleading description
of the pleading standard for Monell claims. The
Report-Recommendation states that a Monell claim
should not be dismissed so long as the defendant has
“fair notice of what the plaintiff's claim is and
the grounds upon which it rests.” Rep.-Rec. at 9
(quoting Hines v. City of Albany, 542 F.Supp.2d 218,
230 (N.D.N.Y. 2008)). The Report-Recommendation goes on to
discuss the implications of this standard in a way that
suggests a “reli[ance] on the more lenient notice
pleading standard first articulated in Conley v.
Gibson, 355 U.S. 41 (1957).” Mohawk v. William
Floyd Sch. Dist., No. 13-CV-2518, 2014 WL 7185946, at *2
(E.D.N.Y. Dec. 15, 2014). The problem is that
“Conley no longer states the applicable law:
The modern ‘plausibility' standard has governed
motions to dismiss pleadings in federal court since
2007.” Citizens United v. Schneiderman, No.
14-CV-3703, 2016 WL 4521627, at *2 (S.D.N.Y. Aug. 29, 2016)
(citing Ashcroft v. Iqbal, 556 U.S. 662, 670 (2009);
Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570
(2007); EEOC v. Port Auth. of N.Y. & N.J., 768 F.3d
247, 253 (2d Cir. 2014))). Thus, it is no longer true that
boilerplate allegations about, say, a municipality's
policy of failing to adequately supervise its employees are
enough to state a claim for relief. See, e.g.,
Harris v. Nassau County, No. 13-CV-4728, 2016 WL
3023265, at *11 (E.D.N.Y. May 24, 2016)
(“Plaintiff's Monell pleadings are
insufficient to survive a motion to dismiss. Indeed,
Plaintiff's claims are supported by nothing more than
conclusory, boilerplate statements. Plaintiff has not
specifically identified an official policy or explained how
that policy caused him to suffer the denial of a
constitutional right.”); Kucharczyk v. Westchester
County, 95 F.Supp.3d 529, 540 (S.D.N.Y. 2015)
(“[T]o survive a motion to dismiss, Plaintiffs cannot
merely allege the existence of a municipal policy or custom,
but ‘must allege facts tending to support, at least
circumstantially, an inference that such a municipal policy
or custom exists.'” (quoting Santos v. New York
City, 847 F.Supp.2d 573, 576 (S.D.N.Y. 2012)));
Betts v. Shearman, No. 12-CV-3195, 2013 WL 311124,
at *15 (S.D.N.Y. Jan. 24, 2013)
(“‘[B]oilerplate' conclusions as to municipal
liability will not suffice, even at this early stage of the
litigation.”), aff'd, 751 F.3d 78 (2d Cir.
2014); Plair v. City of New York, 789 F.Supp.2d 459,
468-69 (S.D.N.Y. 2011) (holding that, in light of
Twombly and Iqbal, “boilerplate
Monell claims do not rise to the level of
plausibility” sufficient to survive a motion to
the Report-Recommendation incorrectly suggests that the Court
could allow Monell claims to proceed against
defendant Chief Mark Williams in his individual capacity.
Rep.-Rec. at 10-12. The problem is that
“Monell does not apply to state officials or
to individuals who are sued in their individual
capacity.” Amory v. Katz, No. 15-CV-1535, 2016
WL 7377091, at *5 (D. Conn. Dec. 19, 2016). That is because
“[a] victory in a personal-capacity action is a victory
against the individual defendant, rather than against the
entity that employs him.” Kentucky v. Graham,
473 U.S. 159, 167-68 (1985).
the Court cannot accept Judge Hummel's recommendation
that it let in plaintiff Eric J. Jackson's claim against
Williams to the extent that he alleges Williams
“exercis[ed] a discriminatory practice or policy of
targeting minority homes . . . for drug raids.” Dkt.
No. 1 (“Complaint”) at 9; Rep.-Rec. at 10. Nor
can it accept Judge Hummel's recommendation that it let
in Jackson's claims against Williams for “failing
to have a policy or practice . . . that allows for the
ethical treatment of animals” during raids, Compl. at
9; Rep.-Rec. at 11, and for failing to implement a policy of
training officers in how to exercise proper care in dealing
with animals during raids, Compl. at 10; Rep.-Rec. at 11.
Judge Hummel appears to have based these conclusions on his
erroneous understanding of the pleading standard for
Monell claims, which in any case is inapplicable to
claims against Williams in his individual capacity. These
claims are more properly understood as asserting supervisory
liability against Williams.
is well settled in this Circuit that personal involvement of
defendants in alleged constitutional deprivations is a
prerequisite to an award of damages under § 1983.”
Farrell v. Burke, 449 F.3d 470, 484 (2d Cir. 2006)
(quoting Wright v. Smith, 21 F.3d 496, 501 (2d Cir.
1994)). Personal involvement can be shown by alleging
(1) that the defendant actually and directly participated in
the alleged unconstitutional acts; (2) that the defendant
failed to remedy a wrong after being informed of the wrong
through a report or appeal; (3) that the defendant created or
approved a policy or custom that sanctioned objectionable
conduct which rose to the level of a constitutional violation
or allowed such a policy or custom to continue; (4) that the
defendant was grossly negligent in supervising the
correctional officers who committed the constitutional
violation; or (5) that the defendant failed to take action in
response to information regarding the occurrence of
Garcia v. Univ. of Conn. Health Care Ctr., No.
16-CV-852, 2016 WL 5844463, at *3 (D. Conn. Sept. 29, 2016)
(citing Colon v. Coughlin, 58 F.3d 865, 873 (2d Cir.
1995)). Further, a plaintiff must “demonstrate a causal
link between the actions of the supervisory official and his
injuries.” Conley v. Rivera, No. 16-CV-2083,
2017 WL 277912, at *3 (D. Conn. Jan. 20, 2017) (citing
Poe v. Leonard, 282 F.3d 123, 140 (2d Cir.
alleges merely that Williams created a policy of
disproportionately targeting minority-owned homes in drug
raids. Compl. at 9. But “conclusory allegations that a
defendant was involved in the creation and enforcement of
unconstitutional policies cannot sustain a claim of personal
involvement.” Koehl v. Bernstein, No.
10-CV-3808, 2011 WL 2436817, at *19 (S.D.N.Y. June 17, 2011),
adopted by, 2011 WL 4390007 (S.D.N.Y. Sept. 21,
2011). For example, in Guzman v. City of New York,
No. 10-CV-1048, 2011 WL 2652572, at *4 (S.D.N.Y. July 7,
2011), the court held that the plaintiff's complaint
failed to state a claim because it “allege[d merely]
that [the New York City Police Commissioner] promoted police
officers' infringement of the constitutional rights of
racial minorities and the poor by refusing to pursue
investigations or sanction subordinates.” Similarly, in
Nielsen v. City of Rochester, 58 F.Supp.3d 268, 275
(W.D.N.Y. 2014), the court noted that the plaintiff's
complaint alleged that the police chief had enacted a policy
of, among other things, “expos[ing] subjects of arrest
to excessive force.” The court held that this
allegation failed to state a claim for relief, because it was
“conclusory, and [the complaint] merely recited the
legal standard required for imposing supervisory liability,
without providing any supporting factual allegations.”
Id. Other courts have reached the same conclusion on
similar fact patterns. See, e.g., Morgan v.
Ward, No. 14-CV-7921, 2016 WL 427913, at *7 (S.D.N.Y.
Feb. 2, 2016) (“The plaintiff's allegations against
[the individual defendant] are nothing more than bare
assertions, conclusions and formulaic recitations of the
elements of supervisory liability, and are devoid of
non-conclusory factual allegations describing how [the
defendant] was involved in the alleged constitutional
violations.”); Jones v. Roosevelt Island Operating
Corp., No. 13-CV-2226, 2013 WL 6504428, at *4 (S.D.N.Y.
Dec. 11, 2013) (“[W]hile there are general allegations
of a policy or custom in which unconstitutional practices
occurred, plaintiff offers no concrete evidence or even a
suggestion of such evidence in the Complaint. Merely stating
legal conclusions is insufficient to state a cognizable claim
for relief.”). Thus, Jackson's allegation about
this policy does not state a plausible claim for relief.
allegation about Williams's failure to train officers in
the ethical treatment of animals is equally deficient. As in
the context of supervisory liability based on the enactment
of a policy or custom, supervisory liability premised on
grossly negligent supervision cannot rest on mere boilerplate
allegations. See, e.g., Hill v.
Chapdelaine, No. 16-CV-1656, 2017 WL 62511, at *4 (D.
Conn. Jan. 5, 2017) (“The plaintiff's conclusory
allegation that [the] Warden . . . failed to properly train
correctional staff . . . does not state a plausible claim for
supervisory liability.”); Wright v. Orleans
County, No. 14-CV-622, 2015 WL 5316410, at *15 (W.D.N.Y.
Sept. 10, 2015) (holding that it was insufficient for
purposes of supervisory liability to allege that the sheriff,
among others, was grossly negligent in training officers in
relevant Fourth and Fourteenth Amendment principles);
Landron v. City of New York, No. 14-CV-1046, 2014 WL
6433313, at *5 (S.D.N.Y. Nov. 7, 2014) (holding that
supervisory liability would not lie where the plaintiff
alleged merely that the warden “grossly failed to train
and properly supervise his corrections officers”);
Houston v. Nassau County, No. 08-CV-882, 2012 WL
729352, at *5 (E.D.N.Y. Mar. 7, 2012) (holding that the
plaintiff did not state a claim for supervisory ...