Salem v. City Of New York

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF NEW YORK

────────────────────────────────────

AITABEDELLAH SALEM,

Plaintiff, 17-cv-4799 (JGK)

- against - MEMORANDUM OPINION

& ORDER

THE CITY OF NEW YORK, ET AL.,

Defendants.

────────────────────────────────────

JOHN G. KOELTL, District Judge:

The plaintiff, Aitabedellah Salem, was held in pretrial

detention by the New York City Department of Correction (the

“DOC”) at the Anna M. Kross Center (the “AMKC”) at Rikers Island

from November 22, 2014 until April 15, 2015. The plaintiff

brings this action pursuant to 42 U.S.C. § 1983 and Monell v.

Department of Social Services, 436 U.S. 658 (1978), challenging

the defendants’1 alleged practice of holding pretrial detainees

on $1.00 bail without informing detainees of their bail status.

By Memorandum Opinion and Order dated August 1, 2018, the

Court granted the defendants’ motion to dismiss the plaintiff’s

Amended Complaint. Salem v. City of New York, No. 17-cv-4799,

2018 WL 3650132 (S.D.N.Y. Aug. 1, 2018). The plaintiff filed a

Second Amended Complaint on September 6, 2018, raising claims

that are similar to those in his Amended Complaint. The

1 The defendants are the City of New York and Joseph Ponte, the DOC

Commissioner, and four John Doe defendants -- a Warden, Assistant Warden,

Tour Commander, and Captain -- who are sued in their individual and official

capacities.

defendants now move to dismiss the plaintiff’s Second Amended

Complaint pursuant to Federal Rule of Civil Procedure 12(b)(6)

for failure to state a claim upon which relief can be granted.

For the following reasons, the motion to dismiss is granted.

I.

In deciding a motion to dismiss pursuant to Rule 12(b)(6),

the allegations in the complaint are accepted as true, and all

reasonable inferences must be drawn in the plaintiff’s favor.

McCarthy v. Dun & Bradstreet Corp., 482 F.3d 184, 191 (2d Cir.

2007). The Court’s function on a motion to dismiss is “not to

weigh the evidence that might be presented at a trial but merely

to determine whether the complaint itself is legally

sufficient.” Goldman v. Belden, 754 F.2d 1059, 1067 (2d Cir.

1985). The Court should not dismiss the complaint if the

plaintiff has stated “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

(2009). While the Court should construe the factual allegations

in the light most favorable to the plaintiff, “the tenet that a

court must accept as true all of the allegations contained in

the complaint is inapplicable to legal conclusions.” Id.

A court may also consider documents incorporated by

reference in the complaint as well as documents the plaintiff

either had in the plaintiff’s possession or had knowledge of and

upon which the plaintiff relied in bringing suit. See Cortec

Indus., Inc. v. Sum Holding L.P., 949 F.2d 42, 48 (2d Cir.

1991). “A court may [also] take judicial notice of the records

of state administrative procedures, as these are public records,

without converting a motion to dismiss to one for summary

judgment.” Evans v. N.Y. Botanical Garden, No. 02-cv-3591, 2002

WL 31002814, at *4 (S.D.N.Y. Sept. 4, 2002).

II.

The following facts are taken from the plaintiff’s Second

Amended Complaint and court documents and are assumed to be true

for the purposes of this motion to dismiss.

On November 21, 2014, Salem was arrested for stealing a

coat from a clothing store. Second Am. Compl. (“SAC”) ¶ 70. The

following day, the plaintiff was arraigned in New York Criminal

Court and charged with Assault in the Second Degree and Petit

Larceny, under docket number 2014NY088542 (“the 8542 case”). Id.

¶ 71. Two additional cases were pending against the plaintiff at

that time under docket numbers 2014NY088543 (“the 8543 case”)

and 2014NY017648 (“the 7648 case”). Id. ¶ 75. The court set bail

at $25,000 each on the 8542 case and the 8543 case for a total

of $50,000. Id. The 8542 case and the 8543 case were adjourned

to November 26, 2014, and the court sentenced the plaintiff to

time served for the 7648 case. Id. ¶¶ 76-77. After his

arraignment, the plaintiff was remanded to the AMKC at Rikers

Island for pretrial detention. Id. ¶ 72.

On November 26, 2014, Judge Gilbert Hong reduced the

plaintiff’s bail in the 8542 case from $25,000 to $1.00 and

adjourned the case to February 11, 2015. Id. ¶ 79. The plaintiff

was not produced in court for the November 26, 2014 proceeding,

and neither his defense attorney nor DOC employees told him that

his bail had been reduced in the 8542 case. Id. ¶ 80.2 Judge Hong

continued the plaintiff’s bail at $25,000 in the 8543 case and

adjourned the 8543 case to November 28, 2014. Id. ¶ 79.

On November 28, 2014, Judge Melissa Crane presided over the

adjourned proceeding regarding the 8543 case. Id. ¶ 81. The

plaintiff was not produced in court and his appearance was

waived by his attorney. Id. At the proceeding, Judge Crane

ordered the plaintiff’s immediate release on his own

recognizance in the 8543 case because the district attorney’s

office failed to conduct a preliminary hearing or obtain a grand

jury indictment within 144 hours of the commencement of the

defendant’s custody as required by New York Criminal Procedure

2 The defendants point out that on each occasion the plaintiff was scheduled

for a court appearance DOC officers produced the plaintiff from Rikers Island

to the Criminal Court. SAC Ex. B.

Law § 180.80. Id. ¶¶ 82-84, 87-88. The 8543 case was adjourned

to February 11, 2015, the same date to which the 8542 case had

been adjourned. Id. ¶¶ 79, 85.

The DOC received notice of Judge Crane’s order to release

the plaintiff on his own recognizance in the 8543 case on

November 28, 2014. Id. ¶ 89. The DOC has enacted procedures that

its officers must follow to process court orders, as outlined in

its General Office Manual. Id. ¶¶ 137, 141. However, the

plaintiff remained in custody because his $1.00 bail in the 8542

case had not been paid. Id. ¶ 96.3

On January 15, 2015, Judge Felicia A. Menin ordered that

the plaintiff be produced in civilian clothes for a conference

in New York Criminal Court on the 8543 case on January 21, 2015,

so that bail could be set at $1.00 on that case. First Am.

Compl. Ex E.; SAC ¶ 99. Although the DOC received this order and

marked it “Satisfied,” the plaintiff was not produced in New

York Criminal Court on January 21, 2015. SAC ¶¶ 100-01, 104.

Judge Crane presided over the January 21, 2015, conference.

Id. ¶ 107. Although Judge Crane had previously ordered that the

plaintiff be released on his own recognizance in the 8543 case,

3 The plaintiff contends that the defendants knowingly and willfully ignored

Judge Crane’s order to release him on the 8543 charges. Id. ¶¶ 93-95, 97.

However, the plaintiff does not dispute that his $1.00 bail in the other

pending matter, the 8542 case, had not been paid. Id. ¶ 96. Therefore, the

plaintiff could not have been released at that time without paying the $1.00

bail on the 8542 case.

at the conference, Judge Crane set bail in the amount of $1.00

on the 8543 case at the request of the plaintiff’s attorney who

alleged that it was a mistake to have ordered the plaintiff

released on his own recognizance in that case because there was

an immigration hold. Id. ¶ 109; First Am. Compl. Ex. F, at 2.4

Nobody notified the plaintiff that he was being held on $1.00

bail in both cases. Id. ¶ 110. The plaintiff repeatedly asked

the defendants and other officers at the AMKC, “What’s happening

with my case, what’s happening with my case?” Id. ¶ 112.

However, the defendants allegedly ignored and refused to

acknowledge his concerns. Id. ¶ 113.

On February 11, 2015, Judge Lisa Sokoloff presided over a

hearing in the 8542 case. Id. ¶ 114. The plaintiff was not

produced in front of Judge Sokoloff. Id. ¶ 115. Rather, he was

left standing in the Court’s holding cell for the duration of

the proceeding. Id. ¶ 111. After the proceeding, the plaintiff

was returned to Rikers Island. Id. ¶ 117.

4 The plaintiff’s counsel in this case represented that there was in fact no

“immigration hold” and that the defense attorney in the state court was

mistaken. If there had been an immigration hold, and the plaintiff could not

be released, presumably the purpose of some bail in the 8543 case would have

been to assure that the plaintiff’s time in custody would be credited toward

the 8543 case.

On April 15, 2015, a person unknown to the plaintiff paid

his $1.00 bail. Id. ¶ 118. The plaintiff was released from

incarceration that day. Id.5

On August 9, 2016, the plaintiff was convicted of Assault

in the Second Degree and Petit Larceny in the 8542 case

following a trial. Gutmann Decl. Ex. 3. The plaintiff was

sentenced to a five-year term of imprisonment followed by a

period of five years’ post-release supervision on the charge of

assault in the second degree, and one year of imprisonment on

the petit larceny charge, both sentences to run concurrently.

Id. The plaintiff was credited with the time he spent in

pretrial detention from November 22, 2014, through April 15,

2015, when his $1.00 bail was paid. Id. Ex. 4. This credit

includes the time when the only bail that applied to the

plaintiff was the $1.00 bail set on the 8542 case. The plaintiff

has not challenged the validity of his convictions in the 8542

case.

The plaintiff contends that (1) by holding pretrial

detainees on $1.00 bail without informing the detainees that

their bail status has changed to $1.00, the defendants violate

substantive due process; (2) by failing to produce the plaintiff

5 The plaintiff alleges that a DOC employee, Captain La Fleur, told the

plaintiff that “if anybody asks you who paid your bail, tell them that Rev.

Cato paid it.” SAC ¶ 120.

in court for the January 21, 2015, hearing, and by failing to

release him from incarceration on that date, the defendants

violated his procedural due process right; and (3) by keeping

the plaintiff in detention on $1.00 bail, the defendants

violated the Fourth Amendment’s proscription against

unreasonable seizures. The plaintiff also asserts liability

against the City of New York on the basis that the City’s

alleged failure to train, monitor, and supervise its employees

caused the plaintiff’s injuries.

III.

The plaintiff’s substantive due process claims fail because

it is now well established that “[w]here another provision of

the Constitution provides an explicit textual source of

constitutional protection, a court must assess a plaintiff’s

claims under the explicit provision and not the more generalized

notion of substantive due process.” Hu v. City of New York, 927

F.3d 81, 104 (2d Cir. 2019) (internal citations omitted). In

this case, the plaintiff claims that his detention on $1.00 bail

violated his Fourth and Fourteenth Amendment right to be free

from unreasonable seizures. That explicit constitutional

protection forecloses the need to analyze the plaintiff’s

detention under the more general concept of substantive due

process. See id. (collecting cases). The plaintiff’s substantive

due process claim that he was unreasonably detained on $1.00

bail arises from the same facts that he alleges supports his

Fourth and Fourteenth Amendment claim for an unreasonable

seizure. The plaintiff rests his Fourth and Fourteenth Amendment

claim on the allegation that Judge Crane ordered that the

plaintiff be produced in court in civilian clothes, at which

point the plaintiff believes he was to be released on his own

recognizance. But while it is true that Judge Crane ordered the

plaintiff’s release on the 8543 case, Judge Crane did not order

the plaintiff’s release on both of the cases that were pending

against the plaintiff. The 8542 case provided an independent

justification for the plaintiff’s detention. Accordingly, the

plaintiff’s allegation that his detention was unreasonable or

not otherwise privileged is not supported by the facts alleged

and must be dismissed. Salem, 2018 WL 3650132, at *3-4.

Therefore, the plaintiff has not sufficiently alleged that he

was deprived of a constitutional right under the Fourth and

Fourteenth Amendments. His claim for a violation of the Fourth

and Fourteenth Amendments is therefore dismissed. That dismissal

also disposes of the plaintiff’s claim for an alleged violation

of substantive due process. In any event, even on the

plaintiff’s own terms, he has failed to allege a violation of

substantive due process.

A.

The plaintiff’s substantive due process claim rests on two

theories: (1) that it is unlawful for the defendants to hold

pretrial detainees in custody on $1.00 bail; and (2) that it was

unlawful for the defendants not to inform the plaintiff that his

bail status had changed. As explained below, neither theory is

well founded. In addition, because the plaintiff can point to no

authority from the Supreme Court or the Court of Appeals for the

Second Circuit that would support his substantive due process

claims, the individual defendants are entitled to qualified

immunity.

1.

The defendants cannot be held liable for holding pretrial

detainees on $1.00 bail because the defendants have no personal

involvement in that alleged due process violation. The City of

New York, Commissioner Ponte, and the John Doe defendants have

no personal involvement in setting a pretrial detainee’s bail.

See N.Y. Crim. P. Law §§ 510-30 (explaining the procedures for

setting bail under New York State law). Rather, the defendants

are charged with detaining individuals for whom bail has been

set by a New York State judge pursuant to New York State law

when the bail has not been paid.

The plaintiff claims that the defendants should be held

liable because the defendants did not release the plaintiff from

detention on November 28, 2014 -- the date that Judge Crane

ordered that the plaintiff be released on his own recognizance

on the 8543 charges. That argument, however, ignores that the

plaintiff remained in custody on the 8542 case. Without paying

bail on the 8542 case, the plaintiff was not entitled to be

released from jail -- even if his bail in that case was only

$1.00. Therefore, the defendants were justified in holding the

plaintiff until his bail was paid.6 See Salem, 2018 WL 3650132,

at *4.

2.

The plaintiff also contends that by failing to inform him

that his bail had been reduced to $1.00 on November 26, 2014 in

that 8542 case, the defendants deprived him of liberty in

violation of substantive due process.

The plaintiff analogizes the failure to advise him about

his bail to a prison conditions case. Even under that framework,

the plaintiff has no claim. “In evaluating the constitutionality

6 The plaintiff also brings a procedural due process claim, alleging that the

reason he was not released from detention on November 28, 2014 was because

the defendants failed to process Judge Crane’s order. But it is plain that

the reason that the plaintiff remained in custody was because he had not

posted bail in his other pending case, the 8542 case in which the plaintiff

was convicted eventually. To the extent the plaintiff bases his procedural

due process claim on the defendants’ alleged failure to process Judge Crane’s

order, that claim is dismissed.

of conditions or restrictions of pretrial detention that

implicate only the protection against deprivation of liberty

without due process of law, . . . the proper inquiry is whether

those conditions amount to punishment of the detainee.” Bell v.

Wolfish, 441 U.S. 520, 535 (1979). This is because a detainee

“may not be punished prior to an adjudication of guilt in

accordance with due process of law.” Id. To determine whether a

restraint is punitive, courts analyze “whether the disability is

imposed for the purpose of punishment or whether it is but an

incident of some other legitimate governmental purpose.” Id. at

538. Without a showing of the defendants’ intent to punish the

plaintiff, this inquiry turns on “whether an alternative purpose

to which the restriction may rationally be connected is

assignable for it, and whether it appears excessive in relation

to the alternative purpose assigned to it.” Id. (quotation marks

and alterations omitted).

The plaintiff argues that holding him on $1.00 bail was a

punitive measure because $1.00 bail is not related to any

legitimate goal. The plaintiff’s argument against the individual

corrections officials and the City of New York fails because

they were not responsible for setting the plaintiff’s bail.

Individual New York Criminal Court judges set the plaintiff’s

bail at a hearing in the presence of the plaintiff’s lawyer and

in accordance with New York State law. And in at least one

appearance, the plaintiff’s lawyer requested that bail be set in

the amount of $1.00 in the 8543 case. First Am. Compl. Ex. F, at

2.7 The plaintiff’s argument against the bail that was set is not

properly directed against the City and the corrections officials

who are charged with carrying out the court orders. Moreover,

there is no basis to conclude that the corrections officials

were attempting to punish the plaintiff by carrying out court

orders. The plaintiff’s arguments against the operation of the

bail system are more properly addressed to the Legislature,

which can evaluate the purpose, advantages, and disadvantages of

the bail system. There is no valid substantive due process claim

alleged against the defendants who implemented the bail orders

of New York Criminal Court judges.

Relying primarily on Gaylor v. Does, 105 F.3d 572 (10th

Cir. 1997), the plaintiff argues that pretrial detainees have a

fundamental right to be informed of their bail status by prison

officials, and that the defendants’ failure to inform the

plaintiff of the reduction in his bail was punitive. However,

Gaylor does not stand for that proposition. The plaintiff in

7 The defendants advise, on the basis of advice from the New York County

District Attorney’s Office, that $1.00 bail will typically be set in

instances where a defendant has multiple cases before the court. Reasonable

bail will be set on the charge carrying the highest penalty and $1.00 bail

will be set in a lesser case. That assures that the defendant will receive

credited jail time on the lesser case. If no bail were set on the lesser

case, the defendant would not receive jail credit on the lesser case. Defs.’

Opp. Mem. at 11 n.4. The same rationale would apply if the defendant were

required to be held for some other reason, such as an immigration detainer.

Gaylor alleged that jail officials deliberately lied to the

plaintiff and his friends about his bail status. 105 F.3d at

573-74. Although the jail officials knew that Gaylor’s bail had

been set, when asked, they told Gaylor and his roommates that

bail would not be set for Gaylor until Gaylor saw a magistrate

judge. Gaylor only found out about his bail status when he

appeared before a magistrate judge five days later. Because the

jail officials lied to Gaylor, Gaylor remained in jail for five

days without knowing that he could have posted bail. Id. at 574.

It was under these circumstances that Gaylor claimed that the

City and County and the jail officials violated his due process

rights by holding him incommunicado for five days. Id. at 574.

The facts of Gaylor are plainly distinguishable from this

case. In Gaylor, the defendants affirmatively lied about the

plaintiff’s bail status. Gaylor repeatedly asked to see a judge

for a bail hearing, but he was not taken to see a judge for five

days. Id. at 573-74. There is no indication in the Gaylor

opinion that Gaylor was represented by counsel who was

independently aware of his bail status. In this case, there is

no allegation that the defendants lied to the plaintiff about

his bail status or otherwise took actions to prevent him from

posting bail, and the plaintiff was represented by an attorney

who was aware of his bail status. Indeed, the plaintiff alleges

in this case that the correction officials refused to respond to

his inquiries. When a detainee is represented by a lawyer, it is

reasonable that the detainee should obtain information about the

detainee’s case from the detainee’s lawyer and not from

conversations with correction officials. Although the Court of

Appeals found that the conduct alleged in Gaylor could amount to

a violation of due process, id. at 577-78, the circumstances in

Gaylor are not present in this case.

3.

In any event, the plaintiff points to no authority in this

Circuit that would support his substantive due process claims.

Because of the lack of precedent on this issue, the individual

defendants are entitled to qualified immunity.

Qualified immunity generally protects government officials

when performing discretionary functions “from liability for

civil damages” if “their conduct does not violate clearly

established statutory or constitutional rights of which a

reasonable person would have known.” Harlow v. Fitzgerald, 457

U.S. 800, 818 (1982); see also Plumhoff v. Rickard, 572 U.S.

765, 778-79 (2014); Ashcroft v. Iqbal, 556 U.S. 662, 672 (2009);

Malley v. Briggs, 475 U.S. 335, 341 (1986) (“As the qualified

immunity defense has evolved, it provides ample protection to

all but the plainly incompetent or those who knowingly violate

the law.”); Heard v. City of N.Y., 319 F. Supp. 3d 687, 696

(S.D.N.Y. 2018).

A right is clearly established when “existing precedent

place[s] the conclusion that [the defendant] acted unreasonably

in the[] circumstances beyond debate.” Mullenix v. Luna, 136 S.

Ct. 305, 309 (2015) (per curiam) (internal quotation marks

omitted). “[T]he salient question . . . is whether the state of

the law” at the time of the defendants’ conduct “gave [the

defendants] fair warning that [their] alleged treatment of [the

plaintiff] was unconstitutional.” Hope v. Pelzer, 536 U.S. 730,

741 (2002). If the state of the law at the time of the

defendants’ conduct did not give fair warning that such conduct

was unlawful, then the defendant is entitled to qualified

immunity.

Out-of-circuit cases are not relevant to the qualified

immunity inquiry. Moore v. Vega, 371 F.3d 110, 114 (2d Cir.

2004) (“Only Supreme Court and Second Circuit precedent existing

at the time of the alleged violation is relevant in deciding

whether a right is clearly established.” (citation omitted));

see Disito v. Cook, 691 F.3d 226, 247 (2d Cir. 2012); Okin v.

Village of Cornwall-on-Hudson Police Dept., 577 F.3d 415, 433

(2d Cir. 2009). There are no cases from the Supreme Court or the

Second Circuit Court of Appeals that clearly establish that

pretrial detainees have a right to be informed by jail officials

of their bail status. Accordingly, the individual defendants are

entitled to qualified immunity because there was no clear

precedent that they were constitutionally required to inform the

plaintiff of his bail status.

In the absence of clearly established law, the defendants

lacked notice that their conduct could lead to civil liability.

Indeed, it would have been reasonable for the defendants to

assume that the plaintiff’s attorney would communicate with the

plaintiff about his bail status. It was the plaintiff’s attorney

who requested that the plaintiff’s bail be set in one of the

cases at $1.00, and it was the plaintiff’s attorney who waived

the plaintiff’s appearances in court. The plaintiff has provided

no explanation why the responsibility to inform him of his bail

status would lie with the defendants rather than with his

defense attorney, who was aware of the plaintiff’s bail status

and knew that the plaintiff had not been in court when the bail

amount was set.8

B.

The plaintiff also seeks to hold the City of New York

liable under Monell. The plaintiff alleges that the City

inadequately trained the individual defendants (1) to process

court orders and (2) to inform pretrial detainees of their bail

status.

8 The plaintiff’s counsel represented at the argument of the current motion

that the plaintiff has sued his criminal defense attorney and that lawsuit is

currently pending in state court.

To bring a claim against a municipality under § 1983, the

plaintiff must allege that the challenged conduct was “performed

pursuant to a municipal policy or custom.” Patterson v. Cty. of

Oneida, N.Y., 375 F.3d 206, 226 (2d Cir. 2004); Sorlucco v.

N.Y.C. Police Dep’t, 971 F.2d 864, 870 (2d Cir. 1992); see

generally Monell, 436 U.S. at 669. To identify a “policy or

custom,” the plaintiff must demonstrate that the municipality,

through its deliberate conduct, was the “moving force” behind

the injuries alleged. Bd. of Cty. Comm’rs v. Brown, 520 U.S.

397, 404 (1997). The alleged policy does not need to be

contained in an explicitly adopted rule so long as the unlawful

practices of city officials are so “persistent and widespread

. . . as to constitute a custom or usage with the force of

law.” Sorlucco, 971 F.2d at 870 (quotation marks omitted); see

Connick v. Thompson, 563 U.S. 51, 61 (2011) (stating that the

acts of city officials must be “so persistent and widespread as

to practically have the force of law”); see also Viruet v. City

of New York, No. 16cv8327, 2019 WL 1979325, at *8 (S.D.N.Y. May

3, 2019).

The plaintiff can satisfy the “policy or custom”

requirement by alleging

(1) a formal policy officially endorsed by the

municipality; (2) actions taken by government

officials responsible for establishing

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.

Tieman v. City of Newburgh, No. 13cv4178, 2015 WL 1379652, at

*13 (S.D.N.Y. Mar. 26, 2015) (quotation marks omitted).

1.

Initially, the plaintiff bases his Monell claim on the

City’s alleged failure to train its employees to process court

orders. The plaintiff claims that he was not released from

detention on November 28, 2014, when Judge Crane ordered that he

be released on his own recognizance on the 8543 case. However,

as explained above, the plaintiff remained detained on the 8542

case, not the 8543 case, and Judge Crane did not order the

plaintiff’s release on the 8542 case. Thus, the plaintiff was

not detained because of a failure to process Judge Crane’s

order. There was no failure to process court orders.

Accordingly, the plaintiff’s Monell claim based on the alleged

failure to train employees to process court orders is dismissed.

See Vippolis v. Village of Haverstraw, 768 F.2d 40, 44 (2d Cir.

1985) (explaining that for a Monell claim to survive there must

be a causal connection between the policy and the deprivation of

constitutional rights).

2.

The plaintiff also claims that the City failed to train its

employees to inform pretrial detainees about their bail status.9

“A failure to act, train, or supervise can constitute a

municipal custom ‘only where the need to act is so obvious, and

the inadequacy of current practices so likely to result in a

deprivation of federal rights, that the municipality or official

can be found deliberately indifferent to the need.’” Tieman,

2015 WL 1379652, at *18 (quoting Reynolds v. Giuliani, 506 F.3d

183, 192 (2d Cir. 2007)). To demonstrate deliberate indifference

for purposes of a failure to train claim, the plaintiff must

show a “pattern of similar constitutional violations by

untrained employees.” Connick, 563 U.S. at 62. “Without notice

that a course of training is deficient in a particular respect,

decisionmakers can hardly be said to have deliberately chosen a

training program that will cause violations of constitutional

rights.” Id.

9 The plaintiff supports this allegation with a report from a January 2015

investigation by the City of New York Department of Investigation

Commissioner Mark G. Peters, which found that the DOC’s hiring practices have

a number of deficiencies that result in the hiring of unqualified officers.

For example, the report found that a number of DOC officers had multiple

prior arrests. SAC ¶ 234. This report, however, has no relation to the

alleged policy that the DOC employees need not inform pretrial detainees of

their bail status.

The plaintiff’s allegations do not show that the City’s

alleged policy -- that its employees need not inform pretrial

detainees of their bail status -- was inadequate or likely to

result in a deprivation of federal rights. Because there was no

constitutional right to have corrections officials inform

pretrial detainees of their bail status, there can be no Monell

claim for a failure to train to implement such a practice.

Moreover, it would have been reasonable for the defendants to

expect that the plaintiff’s defense lawyer would communicate

with the plaintiff regarding his bail status. The fact that the

defendants did not also communicate with the plaintiff regarding

his bail status does not plausibly support the conclusion that

the defendants were deliberately indifferent to the plaintiff’s

constitutional rights. Indeed, the plaintiff has not alleged any

other instances where a detainee was held without knowledge that

the detainee’s bail was set to $1.00, nor are there any other

cases in this Circuit raising such allegations. Therefore, the

plaintiff’s Monell claim is dismissed.

C.

The plaintiff also argues that the defendants’ failure to

inform him of the reduction in his bail violated his procedural

due process rights. The plaintiff alleges that the defendants

“intentionally prevented [him] from being released from custody

for five months.” SAC ¶ 257.

The defendants argue that the challenged conduct was

“random and unauthorized” because courts routinely hold that a

correctional official’s conduct of holding a detainee beyond his

legally mandated release date is random and unauthorized for

purposes of procedural due process. However, the issue is not

whether the defendants held the plaintiff beyond a legally

mandated release date. They did not. The allegations in the SAC

demonstrate that the plaintiff was detained because he had not

posted the bail that was required by court orders. The issue is

whether the defendants’ failure to inform the plaintiff of his

bail status violated due process. The plaintiff argues that this

failure was not “random and unauthorized” but rather was based

on a failure to train, and accordingly could have been

anticipated and prevented.

While the plaintiff’s arguments are not wholly clear, to

the extent he argues that he was denied procedural due process

because he was held in violation of court orders to release him,

and this violated DOC procedures enacted to assure compliance

with court orders, this argument fails because DOC officials did

not fail to comply with any court orders to release the

plaintiff. At all times he was subject to a court order

requiring him to post bail which he failed to do until the day

the bail was paid and he was released. Moreover, the officials’

alleged conduct, by the plaintiff’s own allegations, would be

contrary to DOC policies, and therefore unauthorized and random

acts which do not constitute a violation of due process.

To the extent that the plaintiff is arguing that there is a

procedural due process requirement to have DOC officials inform

him of his bail status, the plaintiff points to no basis for

creating such a right. The adequacy of procedures to afford due

process are generally analyzed under the three-part framework

set forth in Mathews v. Eldrige, 424 U.S. 319 (1976). Under

Mathews v. Eldrige, courts consider

First, the private interest that will be

affected by the official action; second, the

risk of an erroneous deprivation of such

interest through the procedures used, and the

probable value, if any, of additional or

substitute procedural safeguards; and

finally, the Government’s interest, including

the function involved and the fiscal and

administrative burdens that the additional or

substitute procedural requirement would

entail.

Id. at 335.

In this case, the plaintiff was afforded adequate due

process. He was given a hearing before a judge where his bail

was set and where he was represented by counsel as required by

New York Criminal Procedure Law §§ 510-30. His bail was set in

two separate cases and modified over time. At each proceeding he

was represented by counsel. It was his defense attorney who

waived the plaintiff’s presence at various hearings. On one

occasion, the plaintiff’s defense counsel affirmatively asked

that bail of $1.00 be set on the 8543 case. There is no showing

that the procedures provided for in the criminal court process

are insufficient to set reasonable bail amounts. While the

plaintiff has a liberty interest, and an interest in accurate

information about his bail conditions, the plaintiff has failed

to allege plausibly that these interests should be protected by

placing the burden on DOC officers in addition to his own

lawyer. Detainees have a right to expect DOC official to carry

out court orders. The DOC officials did so in this case. But

detainees should rely for advice about their legal status on

their lawyers rather than DOC officials.

Moreover, for the same reasons that the defendants are

entitled to qualified immunity on the plaintiff’s substantive

due process claim, they are entitled to qualified immunity on

the plaintiff’s procedural due process claim. The plaintiff can

point to no law clearly establishing a right of a pretrial

detainee to be informed by correction officials of the

detainee’s bail status.

CONCLUSION

The Court has considered all of the arguments raised by the

parties. To the extent not specifically addressed, the arguments

are either moot or without merit. The defendants’ motion to

dismiss is granted. The Clerk is directed to enter judgment

dismissing this case with prejudice. The Clerk is also directed

to close this case and to close all pending motions.

SO ORDERED.

Dated: New York, New York

September 5, 2019 __________/s/_________________

John G. Koeltl

United States District Judge