United States District Court, S.D. New York
MEMORANDUM DECISION AND ORDER
B. DANIELS, United States District Judge:
se Plaintiff Edward Barnes brought this action under 42
U.S.C. § 1983 against the City of New York and Police
Officers Joseph Carolan and Joseph Fratto. (Second Am.
Compl., ECF No. 14.) Plaintiff alleged that he was falsely
detained, searched, and arrested by Carolan and Fratto while
walking near his home on or about April 19, 2015.
(Id. at 3.)
City of New York moved to dismiss the Second Amended
Complaint pursuant to Rule 12(b)(6) of the Federal Rules of
Civil Procedure. (Mot. to Dismiss, ECF No. 19.) Before this
Court is Magistrate Judge Henry B. Pitman's April 11,
2017 Report and Recommendation ("Report, " ECF No.
30), recommending that Defendant's motion to dismiss be
granted. This Court adopts that recommendation.
I. LEGAL STANDARD
Court "may accept, reject, or modify, in whole or in
part, the findings or recommendations" set forth within
a magistrate judge's report. 28 U.S.C. § 636(b)(1).
The Court must review de novo the portions of a
magistrate judge's report to which a party properly
objects. Id. Portions of a magistrate judge's
report to which no or merely perfunctory objections have been
made are reviewed for clear error. See Edwards v.
Fischer, 414 F.Supp.2d 342, 346-47 (S.D.N.Y. 2006).
Clear error is present only when "upon review of the
entire record, [the court is] left with the definite and firm
conviction that a mistake has been committed." Brown
v. Cunningham, No. 14-CV-3515, 2015 WL 3536615, at *4
(S.D.N.Y. June 4, 2015) (internal citations omitted).
Judge Pitman advised the parties that failure to file timely
objections to the Report would constitute a waiver of those
objections on appeal. (Report at 7-8.) Neither party objected
to the Report's recommendation to dismiss the action
against the City only. Having found no clear error, this
Court accepts that recommendation.
Rule 12(b)(6) motion challenges the legal sufficiency of the
claims asserted in a complaint." Trs. of Upstate
N.Y. Eng'rs Pension Fund v. Ivy Asset Mgmt., ~No. 13
Civ. 3180, 2015 WL 5472944, at *13 (S.D.N.Y. Sept. 16, 2015).
In deciding a Rule 12(b)(6) motion, a court "accept[s]
all factual allegations in the complaint as true, and draw[s]
all reasonable inferences in the plaintiffs favor."
Holmes v. Grubman, 568 F.3d 329, 335 (2d Cir. 2009)
(quoting Burch v. Pioneer Credit Recovery, Inc., 551
F.3d 122, 124 (2d Cir. 2008)). A court is "not, however,
'bound to accept conclusory allegations or legal
conclusions masquerading as factual conclusions.'"
Faber v. Metro. Life Ins. Co., 648 F.3d 98, 104 (2d
Cir. 2011) (quoting Rolon v. Henneman, 517 F.3d 140,
149 (2d Cir. 2008)). In order to survive such a motion, a
complaint must plead "enough facts to state a claim to
relief that is plausible on its face." Bell Atl.
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." Ashcroft v. Iqbal, 556 U.S. 662, 678
se complaints are held to less stringent standards than
those drafted by lawyers, even following Twombly and
Iqbal." Thomas v. Westchester Cty., No.
12-CV-6718, 2013 WL3357171, at *2 (S.D.N.Y. July 3, 2013);
see also Harris v. Mills, 572 F.3d 66, 72 (2d Cir.
2009). While courts read pro se complaints "to
raise the strongest arguments that they suggest, "
Pabon v. Wright, 459 F.3d 241, 248 (2d Cir. 2006)
(internal citation omitted), pro se plaintiffs
"cannot withstand a motion to dismiss unless their
pleadings contain factual allegations sufficient to raise a
'right to relief above the speculative level.'"
Jackson v. NYS Dep't of Labor, 709 F.Supp.2d
218, 224 (S.D.N.Y. 2010) (citing Twombly, 550 U.S.
at 555). Dismissal is justified where "the complaint
lacks an allegation regarding an element necessary to obtain
relief, " and the "duty to liberally construe a
plaintiffs complaint [is not] the equivalent of a duty to
re-write it." Geldzahler v. N.Y.Med. Coll., 663
F.Supp.2d 379, 387 (S.D.N.Y. 2009) (internal citations
omitted); see also Sharma v. D'Silva, 157
F.Supp.3d 293, 300 (S.D.N.Y. 2016).
II. PLAINTIFF HAS FAILED TO STATE A CLAIM AGAINST THE
City of New York moved to dismiss the Second Amended
Complaint on the ground that Barnes has not stated a claim
for municipal liability pursuant to Monell v. Dep 't
of Soc. Servs., 436 U.S. 658 (1978). Under
Monell, "Plaintiffs who seek to impose
liability on local governments under § 1983 must prove
that 'action pursuant to official municipal policy'
caused their injury." Connick v. Thompson, 563
U.S. 51, 60 (2011) (quoting Monell, 436 U.S. at
691). "Boilerplate" assertions of an
unconstitutional policy do not suffice. Usavage v. Port
Auth. of N.Y.& N.J., 932 F.Supp.2d 575, 601
Report properly determined that the Second Amended Complaint
omits any allegations of a custom or policy that could have
caused Barnes' purported injuries. (Report at 5.)
Instead, the Complaint describes Barnes's interaction
with Police Officers Carolan and Fratto without attributing
their conduct to any custom or policy of the City of New
York. (Id.) The Report notes that Plaintiff
responded to the City's motion by submitting a news
publication claiming that the New York City Police Department
was reviewing its policy of assigning rookie police officers
to high-crime areas. (Id.) However, Magistrate Judge
Pitman properly concluded that it was not appropriate to
consider that submission on a motion to dismiss, and that the
submission does not change the Monell analysis.
(Id. at 6.)
Barnes has not plausibly stated a Monell claim, the
City should be dismissed from this action. Individual
Defendants Carolan and Fratto have not moved against the
Second Amended Complaint, and Plaintiffs claims against them
are not affected by the City's motion.
Judge Pitman's Report and Recommendation is adopted. The
City Defendant's motion to dismiss the ...