Murphy v. City of Elmira

UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF NEW YORK

CHRISTOPHER M. MURPHY,

Plaintiff, No. 6:18-cv-06572(MAT)

DECISION AND ORDER

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CITY OF ELMIRA, OTTAVIO CAMPANELLA,

MATTHEW BUZZETTI, TIMOTHY OVERLY,

and JOSEPH MARTINO,

Defendants.

I. Introduction

Proceeding pro se, Christopher M. Murphy (“ Murphy” or

“Plaintiff”) instituted this action on August 10, 2018, against

defendants the City of Elmira (“the City”), Elmira Assistant City

Attorney Ottavio Campanella (“ACA Campanella”), Elmira Assistant

City Attorney Matthew Buzzetti (“ACA Buzzetti”), Elmira Fire

Department Captain Timothy Overly (“Captain Overly”), and Elmira

Assistant Fire Marshal and Code Inspector Joseph Martino

(“Inspector Martino”).1 Plaintiff alleges violations of his Fourth

Amendment right to be free from unlawful searches and seizures and

his Fourteenth Amendment rights to due process and equal protection

of the laws. The Court granted Plaintiff’s motion to proceed in

forma pauperis (“IFP”) under 28 U.S.C. § 1915(a) and reviewed the

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ACA Campanella, ACA Buzzetti, Captain Overly, and Inspector Martino are

hereinafter referred to collectively as the “Individual Defendants.”

complaint as required by 28 U.S.C. § 1915(e)(2) (“Section

1915(e)(2)”).

In a Decision and Order dated August 21, 2018, the Court

allowed the following claims to proceed: the Fourth Amendment claim

for malicious prosecution and the Fourteenth Amendment equal

protection claim. The Court found that the claims against ACA

Buzzetti failed to adequately allege this defendant’s personal

involvement in any constitutional violations, and that the claims

against the City failed to allege an official municipal policy or

custom. The Court dismissed those claims without prejudice with

leave to replead. Finally, the Court dismissed the following claims

with prejudice: the official capacity claims against the individual

defendants; the Fourth Amendment claims for unlawful search,

excessive use of force, and false arrest; and the substantive due

process claim. Plaintiff was given until September 21, 2018, to

file an amended complaint curing the pleading deficiencies

identified in the claims dismissed without prejudice.

Plaintiff timely filed a proposed amended complaint, and the

Court screened it as required. In a Decision and Order dated June

19, 2019, the Court noted that while the proposed amended complaint

included an additional twenty-nine pages, it nevertheless failed to

plainly set out allegations in a manner that cured the deficiencies

previously identified. Finding that it did not comply with Federal

Rule of Civil Procedure 8 (“Rule 8”), the Court declined to file

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it. However, the Court granted Plaintiff one final opportunity to

file an amended complaint.

Plaintiff timely filed a second proposed amended complaint,

and the Court has screened it in accordance with Section

1915(e)(2). For the reasons discussed below, the Court dismisses

the municipal liability claim against the City with prejudice but

will allow ACA Buzzetti to remain as a defendant.

II. Standard Under Section 1915(e)(2)

Under Section 1915(e)(2), the Court must conduct an initial

screening of a pro se litigant’s complaint and must dismiss if it

is “frivolous or malicious”; “fails to state a claim upon which

relief may be granted”; or “seeks monetary relief from a defendant

who is immune from such relief.” 28 U.S.C. § 1915(e)(2)(B)(i)-

(iii). “An action is ‘frivolous’ for § 1915(e) purposes if it has

no arguable basis in law or fact, as is the case if it is based on

an ‘indisputably meritless legal theory.’” Montero v. Travis, 171

F.3d 757, 759 (2d Cir. 1999) (quoting Neitzke v. Williams, 490 U.S.

319, 325 (1989)). In order to state a claim upon which relief may

be granted, a complaint “must contain sufficient factual matter,

accepted as true, to ‘state a claim to relief that is plausible on

its face.’” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (“Iqbal”)

(quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)

(“Twombly”)). “The plausibility standard . . . asks for more than

a sheer possibility that a defendant has acted unlawfully.” Id.

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(citing Twombly, 550 U.S. at 557). “Where a complaint pleads facts

that are merely consistent with a defendant’s liability, it stops

short of the line between possibility and plausibility of

entitlement to relief.” (quoting Twombly, 550 U.S. at 557 (brackets

omitted in original; quotation marks omitted).

III. Screening of the Second Proposed Amended Complaint

A. The Municipal Liability Claim

1. Applicable Legal Principles

Murphy brings all of his claims pursuant to 42 U.S.C. § 1983

(“Section 1983”), which establishes “a species of tort liability in

favor of persons who are deprived of rights, privileges, or

immunities secured to them by the Constitution.” Carey v. Piphus,

435 U.S. 247, 253 (1978) (internal quotation omitted).

In Monell v. Dep’t of Social Servs., 436 U.S. 658, 691 (1978),

the Supreme Court held that municipalities and other bodies of

local government are “persons” within the meaning of § 1983 and, as

such, they may be sued directly if they are alleged to have caused

a constitutional tort through “a policy statement, ordinance,

regulation, or decision officially adopted and promulgated by that

body’s officers.” 436 U.S. at 690. In order to prevail on a Section

1983 claim against a municipality based on the allegedly

unconstitutional acts of a public official, a plaintiff is required

to prove the following: “(1) actions taken under color of law; (2)

deprivation of a constitutional or statutory right; (3) causation;

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(4) damages; and (5) that an official policy of the municipality

caused the constitutional injury.” Roe v. City of Waterbury, 542

F.3d 31, 36 (2d Cir. 2008) (citation omitted). The “official

policy” element “can only be satisfied where a plaintiff proves

that a ‘municipal policy of some nature caused a constitutional

tort.’” Id. (quotation omitted and emphasis added); see also Segal

v. City of N.Y., 459 F.3d 207, 219 (2d Cir. 2006).

“The Supreme Court has identified at least two situations that

constitute a municipal policy: (1) where there is an officially

promulgated policy as that term is generally understood (i.e., a

formal act by the municipality’s governing body), and (2) where a

single act is taken by a municipal employee who, as a matter of

State law, has final policymaking authority in the area in which

the action was taken.” Newton v. City of N.Y., 566 F. Supp.2d 256,

271, nn. 93 & 94 (S.D.N.Y. 2008) (citing Monell, 436 U.S. at 690;

Pembaur, 475 U.S. at 480-81; other citations omitted). In addition,

“an act performed pursuant to a ‘custom’ that has not been formally

approved by an appropriate decisionmaker may fairly subject a

municipality to liability on the theory that the relevant practice

is so widespread as to have the force of law.” Bd. of Cty. Comm’rs

of Bryan Cty., Okl. v. Brown, 520 U.S. 397, 404 (1997) (citations

omitted).

“To allege the existence of an affirmative municipal policy,

a plaintiff must make factual allegations that support a plausible

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inference that the constitutional violation took place pursuant

either to a formal course of action officially promulgated by the

municipality’s governing authority or the act of a person with

policymaking authority for the municipality.” Missel v. Cty. of

Monroe, 351 F. App’x 543, 545 (2d Cir. 2009) (summary order)

(citing Vives v. City of N.Y., 524 F.3d 346, 350 (2d Cir. 2008)

(citing Pembaur v. City of Cincinnati, 475 U.S. 469, 481 (1986)).

Nonetheless, it is well settled that “a custom or policy cannot be

shown by pointing to a single instance of unconstitutional conduct

by a mere employee of the [municipality].” Newton, 566 F. Supp.2d

at 271 & n.92 (citing Tuttle, 471 U.S. at 831 (Brennan, J.,

concurring in part and concurring in the judgment) (“To infer the

existence of a city policy from the isolated misconduct of a

single, low-level officer, and then to hold the city liable on the

basis of that policy, would amount to permitting precisely the

theory of strict respondeat superior liability rejected in

Monell.”) (footnote omitted)).

2. Analysis

Plaintiff alleges that “[t]he City of Elmira had and has a

long-standing, persistent, affirmative policy, custom, usage and

practice (‘the City’s custom’) with respect to residential code

violations, calling for, endorsing, condoning, approving and,

indeed, encouraging heavyhanded, harsh, punitive, intrusive and

oppressive residential code enforcement policies, practices and

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tactics by its Code Enforcement officers, police and fire

department personnel, supervisors and other subordinate officials

and officers.” Second Proposed Amended Complaint (“2nd PAC”) (ECF

#9), ¶ 74; see also id. ¶¶ 75, 78, 84, 86, 102 (making essentially

the same allegations). Plaintiff asserts that the City’s mayor was

the “final policymaker” with regard to housing code enforcement and

suggests that her public statements establish the existence of a

municipal policy or custom. See 2nd PAC (ECF #9), ¶ 86 (noting that

in an interview, Mayor Skidmore said that “code enforcement is

[her] ticket’ – the unmistakable implication being that she stood

for vigorous, aggressive and stringent enforcement of the laws and

ordinances relating to code enforcement. . . .”).

A complaint fails to state a claim when it offers “labels and

conclusions” or “a formulaic recitation of the elements of a cause

of action[.]” Twombly, 550 U.S. at 555. Plaintiff’s amended

complaint consists of nothing more than the repeated recitation of

the words “custom” and “policy,” along with various synonyms for

them, which are then described with a barrage of adjectives.

“Threadbare recitals of the elements of a cause of action,

supported by mere conclusory statements, do not suffice.” Iqbal,

556 U.S. at 678 (citing Twombly, 550 U.S. at 555).

However, even assuming that Plaintiff plausibly identified a

municipal policy by asserting that the Mayor “stood for vigorous,

aggressive and stringent enforcement of the laws and ordinances

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relating to code enforcement” id., this does not warrant, much less

compel, an inference that the manner in which the City enforces its

housing code deprived Plaintiff or anyone else of a constitutional

right. It is true that “municipal liability does not lie only where

the official policy or ordinance is itself unconstitutional.”

Amnesty Am. v. Town of W. Hartford, 361 F.3d 113, 125 (2d Cir.

2004) (citations omitted). Nevertheless, “where the policy relied

upon is not itself unconstitutional, considerably more proof than

the single incident will be necessary in every case to establish

both the requisite fault on the part of the municipality, and the

causal connection between the ‘policy’ and the constitutional

deprivation.” Tuttle, 471 U.S. at 823–24. The Court is cognizant

that at the pleading stage, Plaintiff need not come forward with

proof; however, the fact remains that Plaintiff’s allegations focus

solely on his own experiences with City code enforcement and his

personal disagreements with ACA Campanella. This is plainly

insufficient under Monell. See Berry v. Vill. of Millbrook, 815 F.

Supp.2d 711, 720 (S.D.N.Y. 2011) (finding that the plaintiff had

not stated a Monell claim where he had “not suggested that any

municipal policymaker or municipal policy or custom was responsible

for violations of any litigants’ rights apart from [his] own

alleged experience, and ‘[p]roof of a single incident of

unconstitutional activity is not sufficient to impose liability

under Monell, unless proof of the incident includes proof it was

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caused by an existing, unconstitutional municipal policy, which

policy can be attributed to a municipal policymaker’”) (quoting

Tuttle, 471 U.S. at 823-24; citing Connick v. Thompson, 131 S. Ct.

1350, 1356 (2011) (noting that a municipal office may not be held

liable under § 1983 for failure to train based on a single

constitutional violation)); see also Dellutri v. Vill. of Elmsford,

895 F. Supp.2d 555, 566 (S.D.N.Y. 2012) (dismissing Monell claim

where the plaintiff’s “request for relief arises solely from the

allegation that certain municipal employees—the Building

Inspectors, Village Attorney, and Judge Leone-violated [the

plaintiff]’s rights”) (citing Brown, 520 U.S. at 403; other

Citations omitted); McLaurin v. New Rochelle Police Officers, 373

F. Supp.2d 385, 401 (S.D.N.Y. 2005), (“Viewing the allegations of

the complaint most favorably to the plaintiff, it appears that he

is trying to plead the existence of a widespread practice of

abusing men of color who date white women. However, he does so only

in conclusory fashion, without any supporting factual allegations

except those relating to his own situation. If indeed this is the

sort of ‘policy’ on which plaintiff relies, his complaint cannot

survive . . . because one man’s experience does not make a

policy.”), aff'd in part, vacated in part on other grounds,

remanded sub nom., McLaurin v. Falcone, No. 05-4849-CV, 2007 WL

247728 (2d Cir. Jan. 25, 2007); Birmingham v. Ogden, 70 F. Supp.2d

353, 373 (S.D.N.Y. 1999) (“[T]he only fair inference is that what

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happened to plaintiff (assuming things occurred as he claims) was

unique to him—a deeply personal vendetta carried out by persons who

were out to get him. That is not municipal action taken pursuant to

policy or practice—unless plaintiff were to present this court with

evidence that Chief Ogden and Mayor DeStefano and their cronies

make it a practice to cook up disciplinary charges against

outspoken police officers in order to procure their dismissal.”).

B. Personal Involvement by ACA Buzzetti

To maintain a civil rights action against an individual

defendant under Section 1983, “a plaintiff must establish a given

defendant’s personal involvement in the claimed violation.”

Patterson v. Cty. of Oneida, N.Y., 375 F.3d 206, 229 (2d Cir.

2004). A defendant may not be held liable merely because he or she

held a high position of authority. Black v. Coughlin, 76 F.3d 72,

74 (2d Cir. 1996).

Plaintiff has alleged that on June 24, 2015, he and his

girlfriend were arrested and charged with trespass pursuant to New

York Penal Law § 140.05, “at the personal and deliberate direction

of Insp. Martino, acting in collaboration and concert with ACA

Buzzetti[.]” 2nd PAC, ¶ 44. These charges eventually were dismissed

sometime after August 12, 2015. Id., ¶ 49. He also alleges that on

September 2, 2015, he and his girlfriend were arrested on

misdemeanor complaints “personally prepared and drafted by ACA

Buzzetti, acting jointly in concert with Insp. Martino, both of

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whom were personally aware . . . that the City Attorney’s Office

lacked the lawful authority to file or prosecute any criminal

charges under this state statute.” Id. 97 51; see also id. WII 50,

52-62. These charges were unconditionally dismissed sometime after

September 9, 2015. Id. 7 63. On November 3, 2015, Plaintiff and his

girlfriend were arrested and charged with trespass pursuant to New

York Penal Law § 140.05, “at the direct, personal and deliberate

direction of ACA Buzzetti and Insp. Martino, acting jointly and in

concert. . . .” Id. 7 64; see also id. FI 65-68, 70. These charges

were dismissed unconditionally. Id. 7 69.

The Court finds that Plaintiff has sufficiently set forth

specific allegations as to how ACA Buzzetti was involved in

initiating various criminal prosecutions against Plaintiff and his

girlfriend. Accordingly, the Court will allow the malicious

prosecution claim against ACA Buzzetti to proceed to service.

Cc. Summary

The Court finds that Plaintiff has failed to state a plausible

Monell claim against the City. Therefore, that claim is dismissed

with prejudice.

The Court also determines that Plaintiff has plausibly alleged

ACA Buzzetti’s personal involvement in the claim for malicious

prosecution. Therefore, the Court will allow the malicious

prosecution claim to proceed against all of the Individual

Defendants.

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As stated in its previous screening order, the Court has

allowed the equal protection claim to proceed to service.

III. Conclusion

For the foregoing reasons, it is hereby

ORDERED that the Monell claim is dismissed with prejudice

without leave to plead. It is further

ORDERED that the malicious prosecution claim and equal

protection claims may proceed to service. In so ordering, the Court

expresses no opinion as to whether these claims can withstand a

properly filed dispositive motion. It is further

ORDERED that the Clerk of Court is directed to issue Summonses

to the individuals and entities named in the caption. It is further

ORDERED that the United States Marshals Service shall serve

copies of the Summonses; copies of the Second Proposed Amended

Complaint; and copies of this Decision and Order upon the named

defendants without Plaintiff’s payment therefor, any unpaid fees to

be recoverable if this action terminates by monetary award in

Plaintiff’s favor.

ALL OF THE ABOVE IS SO ORDERED.

s/ Michael A. Telesca

HON. MICHAEL A. TELESCA

United States District Judge

Dated: February 12, 2020

Rochester, New York.

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