Opinion
21 Civ. 3087 (PGG) (GWG)
09-29-2022
MANDELA BROCK, Plaintiff, v. CITY OF NEW YORK et al., Defendants.
REPORT & RECOMMENDATION
GABRIEL W. GORENSTEIN, UNITED STATES MAGISTRATE JUDGE
Plaintiff pro se Mandela Brock brings this action under 42 U.S.C. § 1983 and the First, Fourth, Fifth, Sixth, Seventh, Thirteenth, and Fourteenth Amendments to the United States Constitution against defendants City of New York (“City”), ACACIA Network (“ACACIA”), Services for the Underserved (“SUS”), and a number of individual defendants. Brock alleges that the defendants violated his civil rights in relation to his access to temporary housing. See First Amended Complaint, filed May 18, 2021 (Docket # 10) (“FAC”). The City has filed a motion to dismiss all claims.For the reasons that follow, the City's motion to dismiss should be granted.
Notice of Motion, filed Mar. 7, 2022 (Docket # 44) (“Mot.”); Memorandum of Law in Support of Motion to Dismiss, filed Mar. 7, 2022 (Docket # 45) (“City Mem.”); Response to Defendant's Motion to Dismiss, filed Mar. 20, 2022 (Docket # 47) (“Brock Opp. Mem.”).
I. BACKGROUND
A. Allegations in the Complaint
Brock began using the shelter system administered by the New York City Department of Homeless Services (“DHS”) in February 2020. First Amended Complaint, filed May 18, 2021 (Docket # 10) (“FAC”) ¶ 22. In November 2022, Brock transferred with his minor child to a family shelter in the same system. Id. Following the transfer, Brock was found ineligible for services five times, but was able to obtain a temporary restraining order from the Supreme Court of New York enjoining the City from evicting him. Id. ¶ 23; see Temporary Restraining Order, filed December 17, 2020 (attached to FAC, Docket # 10 at 27). Brock alleges that during the time he was deemed “ineligible” by DHS, he was “maliciously intimidated, subjected to cruel and unusual treatment, unconstitutionally deprived of his Liberty, threatened, harassed, penalized, [and] discriminated against” by two ACACIA employees. See FAC ¶ 24. He alleges that, when he complained, the employees told him that he should “get his own house” if “he wanted to exercise his rights.” Id.
Neither Brock's initial complaint nor his amended complaint specifies the nature of this conduct.
Brock alleges that after the temporary restraining order was lifted, one of the ACACIA employees “falsely claimed that [Brock] was being moved to a ‘Tier 2' facility . . . in order to obtain [Brock's signature] for a voluntary transfer,” but that he was instead moved to another hotel facility. Id. ¶ 28. Brock states that he was administratively transferred to an SUS facility two days later, which he describes as a penalty for his attempts to defend his rights. See id. ¶¶ 29-30.
Brock alleges that, upon his arrival at the SUS facility, an SUS employee “seized and confiscated” Brock's clothing. Id. ¶ 32. Brock alleges that the SUS facility imposed unreasonable restrictions on his liberty by preventing him from leaving his minor child alone for short periods. See id. ¶¶ 33-35. He states that a second SUS employee filed a “malicious and fraudulent” child neglect complaint with the Administration for Children's Services (“ACS”), which was “renounced mere weeks later” when ACS informed Brock that he “was doing nothing wrong.” Id. ¶¶ 34-35.
Brock alleges that he was repeatedly locked out of the SUS facility during periods when his child was visiting the child's mother, and was denied visitation passes for his son when he attempted to obtain them. Id. ¶¶ 38-40, 50-51. Brock attempted to file a police report following one such lockout, but alleges that the responding officers told him that SUS rules “take precedence over the law.” Id. ¶¶ 42-49. Brock states that he alone among SUS residents is not permitted to have a key to his unit because SUS employees believe that “he won't follow the program rules.” Id. ¶ 51.
Brock notes that he is once again being administratively transferred within the family shelter system. Id. ¶ 58. Brock states that the transfer “appears to be in retaliation for the filing of this suit.” Id.
B. Procedural History
Brock filed his initial complaint in this matter on April 9, 2021. Complaint, filed Apr. 9, 2021 (Docket # 2). On April 19, 2021, the court pointed to defects in the complaint-including with respect to the claim against the City-and gave Brock leave to file an amended complaint. Order to Amend, filed Apr. 19, 2021 (Docket # 7) (“Order to Amend”), at 5. Brock filed his amended complaint on May 18, 2021. FAC. The non-City defendants filed answers to the complaint. ACACIA Network Answer, filed Oct. 4, 2021 (Docket # 16); Services for the Underserved Answer, filed Nov. 11, 2021 (Docket # 24).
On March 7, 2022, the City filed the instant motion to dismiss Brock's amended complaint for failure to state a claim. See Mot. The City argues that Brock has not shown the violation of any constitutional right and has failed to allege municipal liability. See City Mem. at 4-5.
II. LEGAL STANDARD
A party may move to dismiss a complaint pursuant to Federal Rule of Civil Procedure 12(b)(6) where the opposing party's pleading “fail[s] to state a claim upon which relief can be granted.” Fed.R.Civ.P. 12(b)(6). While a court must accept as true all of the allegations contained in a complaint, that principle does not apply to legal conclusions. See Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009); Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007) (“[A] plaintiff's obligation to provide the grounds of his entitlement to relief requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do.”) (citation, internal quotation marks, and brackets omitted). In other words, “[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice,” Iqbal, 556 U.S. at 678, and thus a court's first task is to disregard any conclusory statements in a complaint, id. at 679.
Next, a court must determine if a complaint contains “sufficient factual matter” which, if accepted as true, states a claim that is “plausible on its face.” Id. at 678 (citation and internal quotation marks omitted); accord Port Dock & Stone Corp. v. Oldcastle Ne., Inc., 507 F.3d 117, 121 (2d Cir. 2007) (“[A] complaint must allege facts that are not merely consistent with the conclusion that the defendant violated the law, but which actively and plausibly suggest that conclusion.”). “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. The 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, 556 U.S. at 678 (citations and internal quotation marks omitted). “[W]here the well-pleaded facts do not permit the court to infer more than the mere possibility of misconduct,” a complaint is insufficient under Fed.R.Civ.P. 8(a) because it has merely “alleged” but not “‘show[n]' - ‘that the pleader is entitled to relief.'” Id. at 679 (quoting Fed.R.Civ.P. 8(a)(2)).
In the case of pro se plaintiffs, “[a] document filed pro se is to be liberally construed, and a pro se complaint, however inartfully pleaded, must be held to less stringent standards than formal pleadings drafted by lawyers.” Erickson v. Pardus, 551 U.S. 89, 94 (2007) (citations and internal quotation marks omitted); accord McPherson v. Coombe, 174 F.3d 276, 280 (2d Cir. 1999) (a pro se party's pleadings should be construed liberally and interpreted “‘to raise the strongest arguments that they suggest'”) (quoting Burgos v. Hopkins, 14 F.3d 787, 790 (2d Cir. 1994)). However, even pro se pleadings must contain factual allegations that “raise a right to relief above the speculative level.” Dawkins v. Gonyea, 646 F.Supp.2d 594, 603 (S.D.N.Y. 2009) (quoting Twombly, 550 U.S. at 555).
III. DISCUSSION
Brock alleges that the City maintains a “policy, custom[,] and practice” under which it “rent[s] hotel rooms, apartment buildings, and apartments in buildings for homeless individuals to temporarily reside in[,]” then deliberately “turn[s] the operation of [these units] over to third party contractors without any meaningful oversight.” See FAC ¶ 6. We read this claim as one for municipal liability pursuant to Monell v. Dep't Soc. Servs. of the City of New York. 436 U.S. 658 (1978).
Under Monell, “a municipality cannot be held liable solely because it employs a tortfeasor-or, in other words, a municipality cannot be held liable under [42 U.S.C.] § 1983 on a respondeat superior theory.” Id. at 691. A municipality may be held liable, however, where the municipality itself has violated the plaintiff's constitutional rights. See Connick v. Thompson, 563 U.S. 51, 60 (2011) (“A municipality or other local government may be liable under this section if the governmental body itself ‘subjects' a person to a deprivation of rights or ‘causes' a person ‘to be subjected' to such deprivation.”) (citing Monell, 436 U.S. at 692). To hold a municipality liable, a plaintiff must demonstrate that “action pursuant to official municipal policy” deprived them of their constitutional rights. Monell, 436 U.S. at 691. To sufficiently plead the existence of such a policy, a plaintiff must allege the existence of one of the following:
(1) a formal policy officially endorsed by the municipality; (2) actions taken by government officials responsible for establishing the municipal policies that caused the particular deprivation in question; (3) a practice so consistent and widespread that, although not expressly authorized, constitutes a custom or usage of which a supervising policy-maker must have been aware; or (4) a failure by policymakers to provide adequate training or supervision to subordinates to such an extent that it amounts to deliberate indifference to the rights of those who come into contact with the municipal employees.Atadzhanov v. City of New York, 2022 WL 4331304, at *11 (S.D.N.Y. Sept. 19, 2022) (citations omitted); accord Rivera v. Westchester Cnty., 488 F.Supp.3d 70, 76-77 (S.D.N.Y. 2020); Brandon v. City of New York, 705 F.Supp.2d 261, 276-77 (S.D.N.Y. 2010) (citing Monell, 436 U.S. at 690-91). Construing Brock's complaint liberally, it appears that the complaint seeks to hold the City liable under either the third or fourth method of proving Monell liability.
As to the third method, Brock alleges that the problem he has experienced is “widespread” and alleges that he “can and will produce at least twenty other individuals who are having the same issues.” FAC ¶ 8. Brock does not identify these individuals in his complaint and does not recount their specific experiences. Additionally, in the absence of such allegations, he has not shown that a supervising policymaker must have been aware of them. Without specific allegations regarding the systemic nature of a challenged practice, a Monell claim on a theory of “widespread practice” must fail. See Smith v. Westchester Cnty., 2019 WL 5816120, at *5 (S.D.N.Y. Nov. 7, 2019) (allegations were insufficient to state a Monell claim for consistent and widespread practice where plaintiff “describe[d] only his own experiences” and “fail[ed] to provide any factual details regarding [an alleged pattern of] other lawsuits and grievances”); accord Schnauder v. Gibens, 679 Fed.Appx. 8, 10 (2d Cir. 2017) (absent more, a “detailed recounting of [plaintiff's] own experiences” is insufficient to plead a Monell claim); Dipinto v. Westchester Cnty., 2020 WL 6135902, at *10 (S.D.N.Y. Oct. 19, 2020) (allegations that plaintiff and “at least two others” had been harmed were insufficient to establish municipal liability, because “simply naming three people [who have suffered similar circumstances] does not-without more-constitute a widespread policy”).
Brock's allegation that the City does not adequately oversee its contractors may be liberally construed as aligning with the fourth method of proving Monell liability: that is, failure to supervise. See FAC ¶ 6 (“[The City] turn[s] the operation of . . . hotel rooms, apartment buildings, and apartments in buildings over to third[-]party contractors without any meaningful oversight to ensure that said contractors do not violate the rights of the individuals residing in the [locations].”). Brock alleges that the City has a policy of “turning a blind eye” to its contractors' actions, and that the City maintains “purposeful indifference to the unlawful treatment of the individuals housed [at its contractors' shelters].” Id. ¶ 7. These allegations, however, are conclusory. That is, Brock does not plead any facts that actually show that the City is failing to investigate any unconstitutional actions or otherwise provide adequate training or supervision.
In pleading that a municipal policy exists, “[t]he mere assertion . . . that a municipality has such a custom or policy is insufficient in the absence of allegations of fact tending to support, at least circumstantially, such an inference.” Montero v. City of Yonkers, 890 F.3d 386, 403-04 (2d Cir. 2018) (alteration in original) (citing Dwares v. City of New York, 985 F.2d 94, 100 (2d Cir. 1993)); accord Lurch v. City of New York, 2021 WL 1226927, at *6 (S.D.N.Y. Mar. 31, 2021) (finding that “entirely conclusory” allegations regarding a policy that was “not otherwise pled or alleged” were insufficient under Monell). Rather, to establish Monell liability premised on a failure to supervise, a plaintiff must allege factual material showing “(1) there was a pattern of allegations of or complaints about, or a pattern of actual, similar unconstitutional activity, and (2) the municipality consistently failed to investigate those allegations.” Treadwell v. Cnty. of Putnam, 2016 WL 1268279, at *4 (S.D.N.Y. Mar. 30, 2016) (citing Tieman v. City of Newburgh, 2015 WL 1379652, at *21-22 (S.D.N.Y. Mar. 26, 2015)). Here, there are no factual allegations in the complaint that show a failure to investigate. The allegations regarding the City's conduct are conclusory as to what specific policy is at issue that should have been the subject of supervision and what the City's actions were with respect to their efforts to investigate any alleged unconstitutional actions.
As a result, the complaint fails to state a claim under Monell.
Because Brock has failed to adequately allege the existence of a municipal policy, we do not address whether he has pled a constitutional violation.
IV. CONCLUSION
For the reasons set forth above, the City's motion to dismiss (Docket # 44) should be granted.
Inasmuch as plaintiff was previously granted leave to amend his Monell claim, see Order to Amend at 5, leave to amend should not again be granted. See generally Roache v. Fischer, 2019 WL 6827296, at *5 n. 12 (N.D.N.Y. Dec. 13, 2019) (“an opportunity to amend is not required where the plaintiff has already been afforded the opportunity to amend”). Additionally, in his response to the City in its memorandum of law, which pointed out the defects in the Monell claim, plaintiff gives no indication that he has any additional facts to offer to cure the defects in the complaint. See generally Gallop v. Cheney, 642 F.3d 364, 369 (2d Cir. 2011) (proper to dismiss claim with prejudice “in the absence of any indication that [plaintiff] could-or would-provide additional allegations that might lead to a different result”).
PROCEDURE FOR FILING OBJECTIONS TO THIS REPORT AND RECOMMENDATION
Pursuant to 28 U.S.C. § 636(b)(1) and Rule 72(b) of the Federal Rules of Civil Procedure, the parties have fourteen (14) days (including weekends and holidays) from service of this Report and Recommendation to file any objections. See also Fed.R.Civ.P. 6(a), 6(b), 6(d). A party may respond to any objections within 14 days after being served. Any objections and responses shall be filed with the Clerk of the Court. Any request for an extension of time to file objections or responses must be directed to Judge Gardephe. If a party fails to file timely objections, that party will not be permitted to raise any objections to this Report and Recommendation on appeal. See 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 72; Fed.R.Civ.P. 6(a), 6(b), 6(d); Thomas v. Arn, 474 U.S. 140 (1985); Wagner & Wagner, LLP v. Atkinson, Haskins, Nellis, Brittingham, Gladd & Carwile, P.C., 596 F.3d 84, 92 (2d Cir. 2010).