# Salem v. City Of New York

> District Court, S.D. New York · September 5, 2019

URL: https://www.frixlaw.com/law-library/cases/10317799

## Case

- **Court:** District Court, S.D. New York
- **Decided:** September 5, 2019
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/10317799

## How later opinions describe it (automated extraction)

- explaining that for a Monell claim to survive there must be a causal connection between the policy and the deprivation of constitutional rights

## Opinion text

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

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10317799. Public record. Not legal advice.