18‐1765‐cv Cipolloni v. City of New York

UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT

SUMMARY ORDER

RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURTʹS LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (WITH THE NOTATION ʺSUMMARY ORDERʺ). A PARTY CITING A SUMMARY ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.

At a stated term of the United States Court of Appeals for the Second Circuit, held at the Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New York, on the 14th day of December, two thousand eighteen.

PRESENT: ROBERT D. SACK, BARRINGTON D. PARKER, DENNY CHIN, Circuit Judges. ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐x

CARMEN CIPOLLONI, Plaintiff‐Appellant,

v. 18‐1765‐cv

CITY OF NEW YORK, Defendant‐Appellee.

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FOR PLAINTIFF‐APPELLANT: STEVEN M. WARSHAWSKY, The Warshawsky Law Firm, New York, New York; Tomaz J. Piotrowski, T.J. Piotrowski Law Firm, Brooklyn, New York.

FOR DEFENDANT‐APPELLEE: KATHY C. PARK (Devin Slack, Deborah A. Brenner, on the brief), for

Zachary W. Carter, Corporation Counsel of the City of New York, New York, New York.

Appeal from the United States District Court for the Eastern District of

New York (Donnelly, J.).

UPON DUE CONSIDERATION, IT IS HEREBY ORDERED,

ADJUDGED, AND DECREED that the judgment of the district court is AFFIRMED.

Plaintiff‐appellant Carmen Cipolloni was arrested on March 17, 2016 after

the New York Police Department (ʺNYPDʺ) database showed that he had an active

order of protection against him. Cipolloni was released after prosecutors discovered

that the order of protection had been dismissed. Cipolloni brought a

action against defendant‐appellee City of New York (the ʺCityʺ). On May 21, 2018, the

district court granted the Cityʹs motion to dismiss pursuant to Federal Rule of Civil

Procedure 12(b)(6). Cipolloni filed a timely notice of appeal on June 12, 2018. We

assume the partiesʹ familiarity with the underlying facts, procedural history, and issues

on appeal.

The following facts are drawn from the complaint and presumed to be

true. On March 17, 2016, around 2:00 a.m., Cipolloni went to his girlfriendʹs apartment

in Queens, New York. Cipolloni was standing in a public entryway of the apartment

building and talking to his girlfriend on the phone when police arrived. Cipolloni was

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detained and police ran a background check in the NYPD database. The NYPD

database showed an active order of protection against him.

The order of protection, however, had been dismissed on January 28, 2016,

but the dismissal was not reported in the NYPD database. Both Cipolloni and his

girlfriend, who sought the prior order of protection, informed police that it had been

dismissed. Nevertheless, police arrested Cipolloni and charged him with criminal

contempt. Several hours after he was detained, prosecutors discovered the database

error and the charges against Cipolloni were dropped.

Cipolloni sued the City, asserting a claim under § 1983 because ʺthe City

knows that the design and operation of the NYPD database, which contains erroneous

and out‐of‐date information, results in innocent persons being falsely arrested for

violating expired orders of protectionʺ and the City has failed to prevent these

constitutional violations. App. at 27. In a memorandum decision and order entered

May 21, 2018, the district court dismissed Cipolloniʹs § 1983 claim for failure to state a

claim and declined to exercise pendent jurisdiction over his state law claims. This

appeal followed.

ʺWe review de novo the grant of a Rule 12(b)(6) motion to dismiss for

failure to state a claim, accepting all factual allegations as true and drawing all

reasonable inferences in favor of the plaintiff.ʺ Montero v. City of Yonkers,

(2d Cir. 2018). ʺTo survive a motion to dismiss, a complaint must contain sufficient

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factual matter, accepted as true, to state a claim to relief that is plausible on its face.ʺ

Ashcroft v. Iqbal,

(2009) (internal quotation marks omitted). A claim is

plausible where it allows the court to ʺdraw the reasonable inference that the defendant

is liable for the misconduct alleged.ʺ

This requires ʺmore than a sheer possibility

that a defendant has acted unlawfully.ʺ

Moreover, pleading facts consistent with a

defendantʹs liability or ʺ[t]hreadbare recitals of the elements of a cause of action,

supported by merely conclusory statements, do not suffice.ʺ

Municipalities may be sued under § 1983. Monell v. Depʹt of Social Servs.,

(1978). To state a claim for municipal liability, a plaintiff must plead

that ʺ(1) an official policy or custom . . . (2) causes the plaintiff to be subjected to (3) a

denial of a constitutional right.ʺ Wray v. City of New York,

(2d Cir.

2007). ʺOfficial municipal policy includes the decisions of a governmentʹs lawmakers,

the acts of its policymaking officials, and practices so persistent and widespread as to

practically have the force of law.ʺ Connick v. Thompson,

, 61 (2011).

ʺ[I]solated actsʺ by non‐policymaking municipal employees are not sufficient to

demonstrate a municipal custom or policy. Jones v. Town of E. Haven,

(2d

Cir. 2012) (holding that ʺtwo instances, or at the most three, over a period of several

yearsʺ is insufficient); Green v. City of New York,

(2d Cir. 2006) (holding

that one instance of a violation is insufficient to constitute a practice). A municipal

policy may be inferred, however, from evidence of a supervisory officialʹs deliberate

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indifference to isolated acts. Jones,

. ʺTo establish deliberate indifference a

plaintiff must show that a policymaking official was aware of constitutional injury, or

the risk of constitutional injury, but failed to take appropriate action to prevent or

sanction violations of constitutional rights.ʺ

This is a ʺstringent standard of faultʺ

and ʺrequires a showing that the official made a conscious choice[] and was not merely

negligent.ʺ

Cipolloni alleges that the City has a ʺsystemic problemʺ with its database

that results in innocent persons being arrested based on vacated or dismissed orders of

protection. Appellants Br. at 21. Cipolloni has plausibly alleged that the City has a

practice of failing to update the NYPD database to reflect changes to orders of

protection. For example, Cipolloni alleged that the NYPD database ʺcontains no

information about the disposition of the case for which the order of protection was

issued,ʺ and when the NYPD receives information that the order of protection has been

ʺmodified, vacated, or dismissed, this information is not properly and timely entered

into the NYPD database.ʺ App. at 24.

Cipolloni has failed to plausibly allege, however, that the City has a

persistent and widespread practice of arresting individuals based on the NYPD

database errors so as to constitute a municipal policy. Cipolloni argues that ʺavailable

evidence, and common sense, tells us that the problem . . . necessarily affects numerous

people.ʺ Appellantʹs Br. at 23. But his complaint provided no concrete information to

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support the conclusion. His complaint cited only three isolated acts over a more than

20‐year period: his own arrest and two other arrests from 1994 and 2011. App. at 25

(citing Valcarcel v. City of New York, No. 13‐cv‐1740,

(E.D.N.Y. Sept. 2,

2014), and Welch v. City of New York, No. 95‐cv‐8953,

(S.D.N.Y. Aug. 4,

1997)). Both of these cases, however, resulted in dismissals of the complaints. Valcarcel,

, at *2 (dismissing municipal liability claim); Welch,

, at

*4‐5 (finding officer had probable cause to make arrest).

Cipolloni also cited statistics showing that 9.8% of arrests based on

violations of orders of protection from January 2013 to November 2017 were dismissed

prior to arraignment.1 But the reasons for these dismissals were not provided, and the

mere fact that charges were dismissed does not mean the arrests were ʺfalse.ʺ The sheer

possibility that some of these dismissals may be attributable to erroneous NYPD

database entries is insufficient to state a claim. Cipolloni, therefore, has failed to

plausibly plead that the City has a persistent and widespread practice of making arrests

based on NYPD database errors.

Nor has Cipolloni plausibly alleged that the City was deliberately

indifferent to any such false arrests or that the City had ʺactual or constructive

knowledgeʺ of a pattern of false arrests resulting from errors in the NYPD database.

Cipolloni argues that the ʺmagnitude of this problemʺ ‐‐ that is, the purported hundreds

1 These statistics are not in the complaint, but the district court took judicial notice of them.

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of individuals being falsely arrested ‐‐ ʺis sufficiently large and widespread that the City

must have been aware of it.ʺ Appellantʹs Br. at 26‐27. But this conclusory statement is

made without any factual support or particularized allegations, and Cipolloniʹs theory

that because there were errors in the database there must have been hundreds of false

arrests amounts to no more than speculation and an allegation of the ʺsheer possibility

that [the City] has acted unlawfully.ʺ Iqbal,

.

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We have considered Cipolloniʹs remaining arguments and find them to be

without merit. Accordingly, we AFFIRM the judgment of the district court.

FOR THE COURT: Catherine OʹHagan Wolfe, Clerk

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