X

Thank you for sharing!

Your article was successfully shared with the contacts you provided.

OPINION AND ORDER Plaintiff Kimberly Smith brings this Section 1983 action against defendants Parole Officer Michael P. Kenny (“Officer Kenny”), Parole Officer Robert B. Rosenberger (“Officer Rosenberger”), Frank Gemmati, Doris Cuevas, and Jill Lenard-Horne.1 Plaintiff alleges Officers Kenny and Rosenberger fired discharged their handguns in the hallway of her apartment building and inadvertently fired into plaintiff’s apartment. Now pending is defendants’ motion to dismiss the second amended complaint. (Doc. #133). For the reasons set forth below, the motion is GRANTED. The Court has subject matter jurisdiction under 28 U.S.C. §1331. BACKGROUND For the purpose of ruling on the motion to dismiss, the Court accepts as true all well-pleaded factual allegations in the second amended complaint and draws all reasonable inferences in plaintiff’s favor, as summarized below. Plaintiff resides in an apartment building in Newburgh, New York, downstairs from a person on parole. She alleges that on March 3, 2017, Officers Kenny and Rosenberger entered her building and fired their weapons in the hallway when plaintiff was in her apartment. According to plaintiff, “bullets flew past her and lodged in the wall inches from her head,” which “caused her extreme emotional distress and psychological and physical trauma.” (Doc. #109 (“SAC”) 8). Plaintiff alleges Officers Kenny and Rosenberger also killed the parolee’s dog. Plaintiff further alleges the other defendants — Gemmati, Lenard-Horne, and Cuevas (the “Supervisory Defendants”) — are “[s]upervisory and administrative personnel” who “fail[ed] to adequately train, supervise, screen and discipline” Officers Kenny and Rosenberger. (SAC 11). Moreover, plaintiff contends these defendants failed to promulgate appropriate disciplinary procedures for parole officers who recklessly discharge their weapons “in areas where they could endanger bystanders,” and thus “ratif[ied]” Officers Kenny and Rosenberger’s actions. (Id. 13). Plaintiff commenced this action on February 13, 2020. (Doc. #1). In her second amended complaint, she alleges Fourth and Fourteenth Amendment claims against defendants.2 DISCUSSION I. Standard of Review In deciding a Rule 12(b)(6) motion, the Court evaluates the sufficiency of the operative complaint under “the two-pronged approach” articulated by the Supreme Court in Ashcroft v. Iqbal, 556 U.S. 662, 679 (2009).3 First, a plaintiff’s legal conclusions and “[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory statements,” are not entitled to the assumption of truth and are thus not sufficient to withstand a motion to dismiss. Id. at 678; Hayden v. Paterson, 594 F.3d 150, 161 (2d Cir. 2010). Second, “[w]hen there are well-pleaded factual allegations, a court should assume their veracity and then determine whether they plausibly give rise to an entitlement to relief.” Ashcroft v. Iqbal, 556 U.S. at 679. To survive a Rule 12(b)(6) motion, the allegations in the complaint must meet a standard of “plausibility.” Ashcroft v. Iqbal, 556 U.S. at 678; Bell Atl. Corp. v. Twombly, 550 U.S. 544, 557 (2007). A claim is facially plausible “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. at 678. “The plausibility standard is not akin to a ‘probability requirement,’ but it asks for more than a sheer possibility that a defendant has acted unlawfully.” Id. (quoting Bell Atl. Corp. v. Twombly, 550 U.S. at 556). II. Lack of Personal Involvement The Supervisory Defendants contend plaintiff has not alleged facts sufficient to show they were personally involved in the alleged constitutional violations. The Court agrees. To state a claim under Section 1983, a plaintiff must allege facts showing defendants’ direct and personal involvement in the alleged constitutional deprivation. See Spavone v. N.Y.S. Dep’t of Corr. Servs., 719 F.3d 127, 135 (2d Cir. 2013) (“It is well settled in this Circuit that personal involvement of defendants in alleged constitutional deprivations is a prerequisite to an award of damages under §1983.”). A defendant may not be held liable under Section 1983 solely because that defendant employs or supervises a person who violated the plaintiff’s rights. See Tangreti v. Bachmann, 983 F.3d 609, 619-20 (2d Cir. 2020). Here, plaintiff does not allege the Supervisory Defendants were personally involved in the purported violation of her constitutional rights. Instead, plaintiff contends these defendants are responsible for the conduct of Officers Kenny and Rosenberger because they inadequately supervised them. This is insufficient to establish personal involvement. See Tangreti v. Bachmann, 983 F.3d at 619. Moreover, to the extent plaintiff contends the Supervisory Defendants instituted an official policy or custom pursuant to which her constitutional rights were violated — that is, a so-called Monell claim — such claim must also be dismissed. See Monell v. Dep’t of Soc. Servs., 436 U.S. 658 (1978). To plausibly allege an official policy or custom, a plaintiff must allege “an express rule or regulation,” or that a “challenged practice was so persistent or widespread as to constitute a custom or usage with the force of law,” or facts sufficient to “imply the constructive acquiescence of senior policy-making officials.” Green v. Dep’t of Educ., 16 F.4th 1070, 1077 (2d Cir. 2021). “[A] general and conclusory allegation of a municipal policy or custom fails to state a plausible claim.” Id. Here, plaintiff alleges a single incident of violence and generally alleges the Supervisory Defendants did not institute proper investigatory or disciplinary procedures to address such incidents. Thus, to the extent plaintiff is alleging a Monell claim against the Supervisory Defendants, it must also be dismissed. Accordingly, plaintiff’s claims against the Supervisory Defendants must be dismissed. III. Fourth Amendment Officers Kenny and Rosenberger argue plaintiff’s Fourth Amendment claim must be dismissed because she does not plausibly allege a constitutionally cognizable seizure. The Court agrees. A. Legal Standard The Fourth Amendment, which applies to the states through the Fourteenth Amendment, protects “[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures.” U.S. Const. amend. IV. “[T]he first step in any Fourth Amendment claim (or, as in this case, any section 1983 claim predicated on the Fourth Amendment) is to determine whether there has been a constitutionally cognizable seizure.” Medeiros v. O’Connell, 150 F.3d 164, 167 (2d Cir. 1998). A Fourth Amendment “seizure” occurs when police detain an individual under circumstances in which a reasonable person would believe he or she is not at liberty to leave. United States v. Mendenhall, 446 U.S. 544, 554 (1980). Moreover, for a plaintiff to allege a cognizable seizure, the plaintiff must allege the officer must have intended to restrain that individual. Medeiros v. O’Connell, 150 F.3d at 168. For example, a bystander who was accidentally shot by a police officer when the officer was struggling with a suspect was not “seized” within the meaning of the Fourth Amendment. See, e.g., Pickering v. Mercado, 2006 WL 1026677, at *5-7 (E.D.N.Y. Apr. 17, 2006). B. Application Here, plaintiff has not alleged a constitutionally cognizable seizure. Plaintiff contends a seizure occurred because she was “restrained…by gunfire which fired into her apartment, nearly striking her.” (Pl. Opp. at 6). But even drawing all inferences in her favor, plaintiff does not allege the gunfire was aimed at her. Instead, plaintiff alleges she was a “bystander” and that the officers were acting “reckless[ly]” when firing in the hallway. (See SAC

 
Reprints & Licensing
Mentioned in a Law.com story?

License our industry-leading legal content to extend your thought leadership and build your brand.

More From ALM

With this subscription you will receive unlimited access to high quality, online, on-demand premium content from well-respected faculty in the legal industry. This is perfect for attorneys licensed in multiple jurisdictions or for attorneys that have fulfilled their CLE requirement but need to access resourceful information for their practice areas.
View Now
Our Team Account subscription service is for legal teams of four or more attorneys. Each attorney is granted unlimited access to high quality, on-demand premium content from well-respected faculty in the legal industry along with administrative access to easily manage CLE for the entire team.
View Now
Gain access to some of the most knowledgeable and experienced attorneys with our 2 bundle options! Our Compliance bundles are curated by CLE Counselors and include current legal topics and challenges within the industry. Our second option allows you to build your bundle and strategically select the content that pertains to your needs. Both options are priced the same.
View Now
November 27, 2024
London

Celebrating achievement, excellence, and innovation in the legal profession in the UK.


Learn More
December 02, 2024 - December 03, 2024
Scottsdale, AZ

Join the industry's top owners, investors, developers, brokers and financiers for the real estate healthcare event of the year!


Learn More
December 11, 2024
Las Vegas, NV

This event shines a spotlight on how individuals and firms are changing the investment advisory industry where it matters most.


Learn More

Downtown property and casualty defense law firm seeks litigation associate with 2+ years' experience in insurance defense litigation. The fi...


Apply Now ›

Description: Fox Rothschild has an opening in the New York office for a Counsel in our renowned Labor & Employment Department, working w...


Apply Now ›

Our client, a large, privately-owned healthcare company, has engaged us to find an Assistant General Counsel for their headquarters located ...


Apply Now ›