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holding service of two police officers insufficient when the service was made on the city's office of Corporation Counsel
Summary of this case from Klein v. BeltempoOpinion
07 Civ. 1395 (RPP).
June 19, 2008
Attorney for Plaintiff, Mark Lubelsky Associates, New York, NY.
Attorney for Defendants, Office of the Corporation Counsel, New York City Law Dep't, New York, NY.
OPINION AND ORDER
Plaintiff Gregory Davis filed a complaint against Defendants City of New York, New York City Police Department ("NYPD"), Police Officer George Lopez and Police Officer "John Doe" alleging a cause of action under 42 U.S.C. § 1983. Defendants City of New York and NYPD move to dismiss the complaint in its entirety pursuant to Rule 56(c) of the Federal Rules of Civil Procedure. For the following reasons, Defendants' motion for summary judgment (Doc. No. 12) is granted.
BACKGROUND
On February 26, 2007, Plaintiff initiated this action by filing the complaint with the Court. (Defs.' Rule 56.1 Stmt. ¶ 4; Pl.'s Rule 56.1 Stmt. ¶ 4.) The complaint alleges that on or about March 16, 2004, Police Officers George Lopez and "John Doe" used excessive force while arresting Plaintiff near the intersection of Broadway and 136th Street for minor drug possession, caused him physical injury, and subsequently denied him medical treatment in violation of Plaintiff's constitutional rights. (Compl. ¶¶ 15-34; Defs.' Rule 56.1 Stmt. ¶ 2; Pl.'s Rule 56.1 Stmt. ¶ 2.) The complaint also alleges that the City of New York failed to properly train and supervise its officers, resulting in the deprivation of Plaintiff's constitutional rights. (Compl. ¶¶ 65-66; Defs.' Rule 56.1 Stmt. ¶ 3; Pl.'s Rule 56.1 Stmt. ¶ 3.
By letter dated April 25, 2007 and copied to Plaintiff's counsel, Sabrina Tann, Esq., counsel for Defendant City of New York, requested an adjournment of the initial pretrial conference scheduled for the following day on the grounds that "none of the named defendants in this action have been served with a copy of the summons and complaint." (Tann Decl., Ex. C; Defs.' Rule 56.1 Stmt. ¶ 6.) On May 10, 2007, Plaintiff served Corporation Counsel of the City of New York, located at 100 Church Street, New York, New York 10007, with two copies of the summons and complaint. (Tann Decl. ¶ 7; Defs.' Rule 56.1 Stmt. ¶ 7; Pl's Rule 56.1 Stmt. ¶ 7.) Each of the two summons, dated February 26, 2007, were addressed to "Police Officer George Lopez," "Police Officer John Doe," "City of New York," and "The New York City Police Department" at "100 Church Street, Fourth Floor, New York, New York 10026." (Tann Decl., Ex. D; id ¶ 8; Defs.' Rule 56.1 Stmt. ¶ 8; Pl's Rule 56.1 Stmt. ¶ 8.) Plaintiff never filed any affidavits of service of the summons and complaint with the Court. (Tann Decl. ¶ 11; Defs.' Rule 56.1 Stmt. ¶ 10; Pl.'s Rule 56.1 Stmt. ¶ 10.)
Plaintiff acknowledges that the zip code was written as "10026" in error and that the correct zip code is 10007. (Tann Decl. at 2 n. 1.)
On June 12, 2007, Defendants City of New York and NYPD filed their answer to the complaint. (Tann Decl. ¶ 12; Defs.' Rule 56.1 Stmt. ¶ 11; Pl's Rule 56.1 Stmt. ¶ 11.) In their answer, Defendants City of New York and NYPD stated "[u]pon information and belief, the individual identified in the caption of the complaint as George Lopez, has not been served with a copy of the Summons and Complaint or requested representation from the office of Corporation Counsel." (Tann Decl., Ex. E; Defs.' Rule 56.1 Stmt. ¶ 12; Pl.'s Rule 56.1 Stmt. ¶ 12.)
On September 11, 2007, at an initial conference with both counsel present before the Court, Defendants' counsel stated that service of process had not been effected on the named defendant George Lopez. (Tann Decl. ¶ 13; Defs.' Rule 56.1 Stmt. ¶ 13.) At that conference, the Court set a briefing schedule for Defendants' proposed motion to dismiss the complaint pursuant to Federal Rule of Civil Procedure 12(c). (Tann Decl. ¶ 15; Defs.' Rule 56.1 Stmt. ¶ 15; Pl.s' Rule 56.1 Stmt. ¶ 15.) By letter dated September 26, 2007, Defendants withdrew their request to submit the motion to dismiss, and by order dated September 26, 2007, the Court directed the parties to complete discovery by January 1, 2008 and submit a proposed Pre-Trial order by January 18, 2008. (Tann Decl., Ex. F; Defs.' Rule 56.1 Stmt. ¶¶ 16-17; Pl's Rule 56.1 Stmt. ¶¶ 16-17.)
Following the Court's September 27, 2007 Order, Plaintiff failed to seek leave from the Court for a further period in which to serve Defendant George Lopez with process. (Tann Decl. ¶ 18; Defs.' Rule 56.1 Stmt. ¶ 18.) Ms. Tann, counsel for Defendants City of New York and NYPD, has not contacted Mr. Lopez with respect to the claims asserted against him in the complaint, nor has Mr. Lopez contacted the office of Corporation Counsel to request legal representation in this matter. (Tann Decl. ¶ 19; Defs.' Rule 56.1 Stmt. ¶ 19.) Upon information and belief of Defendants, to date, George Lopez has had no notice of this action. (Tann Decl. ¶ 20; Defs.' Rule 56.1 Stmt. ¶ 20.)
On November 19, 2007, Plaintiff served the City of New York with a first demand for production of documents and first set of interrogatories. (Pl.s' Affirmation, Ex. C.) On December 12, 2007, Plaintiff's counsel sought a two-month stay of discovery on the grounds that counsel, despite ardent efforts, was unable to contact Plaintiff to assist him with the prosecution of this matter. (Tann Decl., Ex. G; Defs.' Rule 56.1 Stmt. ¶ 23; Pl's Rule 56.1 Stmt. ¶ 23.) By letter dated December 18, 2007, Defendants opposed Plaintiff's application for a stay and sought leave to file a motion pursuant to Federal Rule of Civil Procedure 56. (Tann Decl., Ex. H; Defs.' Rule 56.1 Stmt. ¶ 24; Pl.'s Rule 56.1 Stmt. ¶ 24.) By order dated December 20, 2007, the Court granted Plaintiff's application in part and stayed discovery until February 12, 2008. (Pl.s' Affirmation, Ex. B; Pl.s' Rule 56.1 Stmt. ¶ 25.)
Defendants City of New York and NYPD filed the instant motion for summary judgment on January 18, 2008. At the time the motion was filed, Plaintiff had not sought to depose any witnesses in this matter or identified "Police Officer John Doe." (Tann Decl. ¶¶ 21, 22; Defs.' Rule 56.1 Stmt. ¶ 21, 22; Pl.s' Rule 56.1 Stmt. ¶ 21, 22.) Nor had Defendants responded to Plaintiffs' document demands and interrogatories. (Pl.s' Rule 56.1 Stmt. ¶ 21.)
Defendants City of New York and NYPD move for summary judgment on the grounds that the NYPD is not a suable entity and that the complaint fails to state a claim against the City of New York for failure to properly train and supervise the defendant officers. Defendants also argue that the claims against Officers Lopez and "John Doe" should be dismissed pursuant to Federal Rule of Civil Procedure 4(m) because Plaintiff failed properly to serve Officer Lopez within 120 days of filing this action despite having notice that his service was defective and also failed to apply for an order extending the 120-day period.
DISCUSSION
I. Summary Judgment Standard
A court may grant summary judgment only where the "pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show there is no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(c). When considering a motion for summary judgment, the court must view the facts in the light most favorable to the nonmoving party and draw all reasonable inferences in its favor. Anderson v. Liberty Lobby, 477 U.S. 242 (1986); Braham v. Clancy, 425 F.3d 177, 181 (2d Cir. 2005). Summary judgment is inappropriate if, after resolving all ambiguities and drawing all inferences against the moving party, there remains a dispute about a material fact "such that a reasonable jury could return a verdict for the nonmoving party." Anderson, 477 U.S. at 248.
II. Plaintiff's Claim against Police Officers George Lopez and "John Doe"
Defendants move for summary judgment in favor of the individual police officers against whom Plaintiff alleges § 1983 violations on the grounds that they were never served with the summons and complaint. Defendants argue that the claim against the defendant officers should be dismissed with prejudice because Plaintiff cannot show good cause for his failure to timely serve, the statute of limitations ran on Plaintiff's claim on March 16, 2007, and Officer Lopez would be prejudiced by an extension for service at this time.
A. Whether service was effected on the defendant officers
Federal Rule of Civil Procedure 4(e)(1) provides that service of process is effected on an individual in one of three ways: (1) pursuant to the law of the state in which the district court is located, or in which the service is effected; (2) by delivering a copy of the summons and complaint to the individual personally, or by leaving copies at the individual's "dwelling house or usual place of abode with some person of suitable age and discretion then residing therein"; or (3) by delivering a copy of the summons and complaint to an agent authorized by law to receive service of process. Under New York law, service can be made by delivering the summons "to a person of suitable age and discretion at the actual place of business . . . and by either mailing the summons to the person to be served at his or her last known residence or by mailing the summons by first class mail to the person to be served at his or her actual place of business." N.Y. C.P.L.R. 308 (McKinney 2007). Under this section, "'actual place of business' shall include any location that the defendant, through regular solicitation or advertisement, has held out as its place of business." Id.
Plaintiff argues that he complied with New York law by serving Police Officers George Lopez and "John Doe" at the office of Corporation Counsel. Under C.P.L.R. § 311, Corporation Counsel is an authorized agent permitted to accept service on behalf of the City of New York. N.Y. C.P.L.R. § 311. Plaintiff contends because the police officers are employees of the City of New York, service on the City is proper. Section 311 of the C.P.L.R., however, pertains to "personal service upon a corporation or governmental subdivision" and does not authorize the City of New York to accept service on behalf of individuals. See id. Nor is the office of Corporation Counsel the "actual place of business" for Officer Lopez or the unnamed officer "John Doe," under C.P.L.R. § 308. The police precinct to which they report and where they conduct their business is their actual place of business. Moreover, Plaintiff made no effort to serve the officers personally or at their actual residences. Under these circumstances, service on the City of New York constitutes improper service on the defendant police officers. See Moultry v. City of Poughkeepsie, 154 F. Supp. 2d 809, 811 (S.D.N.Y. 2001) (holding that service on the police officers who allegedly violated plaintiff's civil rights was not proper where the summons and complaint were served on an official in a city office never frequented by the officers, and no effort was made to serve them personally or leave papers at their residences).
B. Whether an extension for service should be granted
Under Rule 4(m) of the Federal Rules of Civil Procedure, a plaintiff must properly serve the defendants within 120 days of filing of the complaint. Fed.R.Civ.P. 4(m). If a plaintiff fails to timely serve, the district court must either "dismiss the action without prejudice as to that defendant or direct that service is effected within a specified time." Id. The district court is required to grant an appropriate extension of time to effect service if the plaintiff shows good cause for failure to serve and has discretion to grant such an extension even in the absence of good cause. Id.; Zapata v. City of New York, 502 F.3d 192, 197 (2d Cir. 2007) (holding that under Rule 4(m) "district courts have discretion to grant extensions even in the absence of good cause" but are not required to do so). The policy behind Rule 4(m) and the statute of limitations is to promote the "diligent prosecution of civil cases." Nat'l Union Fire Ins. Co. v. Sun, No. 93 Civ. 7170, 1994 U.S. Dist. LEXIS 11934, at *7 (S.D.N.Y. Aug. 18, 1994); accord Gordon v. Hunt, 116 F.R.D. 313, 320 (S.D.N.Y. 1987) (noting that the policy behind Rule 4(m) and the statute of limitations is "to encourage prompt movement of civil actions in the federal courts").
In this case, Plaintiff cannot show good cause for failure to serve the defendant police officers within the 120-day period. Plaintiff and Plaintiff's counsel were put on notice on June 8, 2007, when Defendants filed their answer, and again on September 11, 2007, at the initial pretrial conference before the Court, that the defendant police officers had not been served. (Tann Decl. ¶¶ 12, 13.) Despite this notice, Plaintiff took no steps to serve Officer Lopez, request an extension of the 120-day period (Tann Decl. ¶ 18), or request assistance in locating the officers. An attorney's inadvertence, neglect, or ignorance of the rules does not constitute good cause for untimely service.McKibben v. Credit Lyonnais, No. 98 Civ. 3358, 1999 U.S. Dist. 12310, at *9 (S.D.N.Y. Aug. 9, 1999) (citing Klein v. Williams, 144 F.R.D. 16, 19-20 (E.D.N.Y. 1992)). Under the circumstances in this case, Plaintiff fails to establish good cause for untimely service. See Bogle-Assegai v. Connecticut, 470 F.3d 498, 508 (2d Cir. 2006) (holding that the plaintiff failed to establish good cause where she knew that defendants thought service was improper and made no effort to remedy this defect or ask the court to extend her time to effect service).
Nor is this a case where an extension should be granted in the Court's discretion despite the absence of good cause. In considering whether or not to grant an extension absent a showing of good cause, the Court must weigh the impact a dismissal or extension would have on the parties. Zapata, 502 F.3d at 197. Dismissing the complaint without prejudice in this case would have serious consequences for Plaintiff because the statute of limitations would bar him from re-filing. On the other hand, these consequences are attributable in large part to Plaintiff and his counsel's neglect and failure to prosecute. Plaintiff's counsel filed the complaint on February 16, 2007, only three weeks shy of the expiration of the three-year statute of limitations on his § 1983 claims. Even after being notified that the defendant officers had not been served, Plaintiff's counsel failed to make any further attempts to effect service or seek an extension of the 120-day period. Importantly, Plaintiff's counsel did not inform the Court that he had lost contact with Plaintiff until his December 12, 2007 letter requesting a stay of discovery, which the Court had ordered completed by January 1, 2008. In his letter, Plaintiff's counsel stated that he had "recently attempted to contact Mr. Davis on numerous occasions in order to respond to defendant's [discovery] demands" but had been unable to reach him by either phone or mail. (Pl.'s Affirmation, Ex. B.) Although the Court granted counsel's request for a 60-day stay of discovery to "provide plaintiff the needed time to effectuate contact" (id.), counsel has not informed the Court that any contact has been restored. Furthermore, more than four years have passed since the alleged incident took place. Officer Lopez never received notice of this litigation, as he was never served and no depositions were ever taken to make him aware of the case against him. Were Plaintiff granted leave to effect service at this point, Officer Lopez would suffer considerable prejudice in defending against the case, as the facts would have certainly faded from memory. Under these circumstances, the Court declines to exercise its discretion to grant an extension for service under Zapata.
III. Plaintiff's Claim against the City of New York
Plaintiff alleges that the City of New York failed to properly train and supervise the police officers who deprived Plaintiff of his constitutional rights. (Compl. ¶¶ 65-66.) Defendants seek to dismiss Plaintiff's claim against the City of New York on the grounds that the complaint fails adequately to state a claim for municipal liability and that, even if the claim is adequately plead, Plaintiff fails to proffer any evidentiary support for the claim.
A municipality may not be held liable under 42 U.S.C. § 1983 for the conduct of its employees based on a theory of respondeat superior. Monell v. Dep't of Social Servs., 436 U.S. 658, 694 (1978). Municipal liability attaches only if the plaintiff can show that a municipal policy or custom caused the deprivation of his constitutional rights. Id. at 690-91. Where a plaintiff alleges municipal liability based on a failure to train and supervise, "the inadequacy of police training may serve as the basis for § 1983 liability only where the failure to train amounts to deliberate indifference to the rights of persons with whom the police come into contact," and therefore amounts to an actionable city "policy or custom." City of Canton v. Harris, 489 U.S. 378, 388 (1989).
In Leatherman v. Tarrant County Narcotics Intelligence Coordination Unit, 507 U.S. 163 (1993), the Supreme Court held that district courts may not apply a "heightened pleading standard" beyond what is generally required by Federal Rule of Civil Procedure 8(a) to Section 1983 complaints alleging municipal liability. Id. at 164. Leatherman appears to reject the pleading standard applied by the Second Circuit in Dwares v. City of New York, 985 F.2d 94, 100 (2d Cir. 1993), which held that the allegation of a single incident involving only actors below the policymaking level does not suffice to state a claim of municipal liability under Section 1983. See Simpkins v. Bellevue Hosp., 832 F. Supp. 69, 73 n. 3 (S.D.N.Y. 1993); see also Cooper v. Metro. Transp. Auth., 2006 U.S. Dist. LEXIS 47970, at *9-10 (S.D.N.Y. July 13, 2006). Since Leatherman, courts in this district have denied motions to dismiss complaints alleging that an individual officer's conduct conformed to official policy or custom or that an individual officer was empowered to make policy decisions on behalf of the municipality. See, e.g.,Cooper, 2006 U.S. Dist. LEXIS 47970, at *9-10 (holding that "[u]nder the Leatherman rule . . . Plaintiff's bare allegations that Harrington was a "policy maker" and that both Harrington and Paul were empowered to make policy decisions on behalf of Metro-North/MTA are sufficient" to withstand a motion to dismiss); Lucas v. New York City, 1995 U.S. Dist. LEXIS 17017, at *7 (S.D.N.Y. Nov. 14, 1995) (denying the motion to dismiss plaintiff's § 1983 claim under Leatherman to the extent plaintiff alleges he was arrested pursuant to the long established policy of racially selective law enforcement attributable to the City).
Plaintiff, represented by counsel in this case, fails adequately to plead a claim of municipal liability against the City of New York. Even the usual pleading standard of Rule 8(a) still requires more than conclusory allegations. Bell Atlantic v. Twombly, 127 S. Ct. 1955, 1964 (2007) (stating that Rule 8(a) "requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do");see also Papasan v. Allain, 478 U.S. 265, 286 (1986) (stating that on a motion to dismiss, a district court is "not bound to accept as true a legal conclusion couched as a factual allegation"). Plaintiff makes only the conclusory allegation that the City of New York "failed to properly train the person(s) who deprived [Plaintiff] of his civil rights" and "failed to properly supervise the person(s) who deprived [Plaintiff] of his civil rights." Such conclusory allegations that a municipality failed to train and supervise its employees is insufficient to state a Monell claim. See McAllister v. New York City Police Dep't, 49 F. Supp. 2d 688, 705 (S.D.N.Y. 1999) ("Conclusory allegations of a municipality's pattern or policy of unconstitutional behavior are insufficient to establish a Monell claim, absent evidence to support such an allegation."); Oparaji v. City of New York, 1997 U.S. Dist. LEXIS 23686, *10 (E.D.N.Y. Mar. 21, 1997) (dismissing a Monell claim for failure to state a claim where plaintiff alleged only that the City had a policy, practice or custom of failing to adequately screen, hire and train police officers which resulted in the violation of his constitutional rights).
Plaintiff argues that summary judgment is inappropriate at this stage because no discovery has taken place. The Court granted Plaintiff's request for a stay of discovery from December 20, 2007 to February 12, 2008, and prior to the stay, Defendants had not responded to Plaintiff's document demands and interrogatories served on November 19, 2007.
Generally, before summary judgment may be granted, the nonmoving party "must have had the opportunity to discover information that is essential to his opposition to the motion . . . [and] only in the rarest of cases may summary judgment be granted against a plaintiff who has not been afforded the opportunity to conduct discovery." Hellstrom v. U.S. Dep't of Veteran Affairs, 201 F.3d 94, 97 (2d Cir. 2000) (internal quotations omitted). If, however, the allegations of a plaintiff's Section 1983 claim are insufficient as a matter of law or could not be aided by discovery, a district court may grant summary judgment even without discovery. M.B. v. Reish, 119 F.3d 230, 232 (2d Cir. 1997) (concluding that the district court's denial of discovery was within its discretion because plaintiff's claims were insufficient as a matter of law and plaintiff failed to present a credible basis to suggest discovery would produce favorable evidence). In rejecting the heightened pleading standard for Section 1983 claims in Leatherman, the Supreme Court noted that "federal courts and litigants must rely on summary judgment and control of discovery to weed out unmeritorious claims sooner rather than later." Leatherman, 507 U.S. at 168-169.
In this case, Plaintiff has not made any showing that further discovery is likely to lead to evidence supporting Plaintiff's claim against the City of New York. Moreover, because Plaintiff's complaint fails to state a claim of municipal liability upon which relief may be granted, Plaintiff's claim against the City of New York is insufficient as matter of law. On these grounds, Defendant City of New York's motion for summary judgment is granted.
IV. Plaintiff's Claim against NYPD
It is well settled that NYPD, as an agency of the City of New York, lacks independent legal existence and is therefore not a suable entity. Jenkins v. City of New York, 478 F.3d 76, 93 n. 19 (2d Cir 2007); see also N.Y.C. Charter § 396 ("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."). In his memorandum of law in opposition to Defendants' motion for summary judgment, Plaintiff concedes that NYPD is a non-suable entity and discontinues his claim against NYPD. Accordingly, the claim against NYPD is dismissed.
CONCLUSION
For the foregoing reasons, Defendants' motion for summary judgment (Doc. No. 12) is granted. The claims against Defendant Police Officers George Lopez and "John Doe" are dismissed for non-service, the claims against Defendant City of New York for failure to state a claim and insufficiency as a matter of law, and the claims against NYPD because it is not a suable entity.
IT IS SO ORDERED.