Lembhard v. City of Newburgh et al, No. 7:2013cv05280 - Document 33 (S.D.N.Y. 2014)

Court Description: OPINION & ORDER: Defendant Newburgh's motion to dismiss is granted. The Clerk of the Court is respectfully requested to terminate the motion, Docket No. 20, terminate the City of Newburgh from this case, and terminate Plaintiff's motion, D ocket No. 28. The remaining individual Defendants - Officers Robert Pedrick, Robert Vasta, Eugene O'Toole, Michael Pitt, Brandon Rola, and Howard Ladlee - shall have 21 days from the date of this order, or until May 14, 2014, to answer the Complaint. SO ORDERED. (Signed by Judge Nelson Stephen Roman on 4/23/2014) Copies Mailed 4/23/2014 By Chambers of Nelson R. Roman, U.S.D.J. (lnl)

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II. Legal Standard On a motion to dismiss for failure to state a claim upon which relief can be granted, Fed. R. Civ. P. 12(b)(6), dismissal is proper unless the complaint contain[s] 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) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)); accord Hayden v. Paterson, 594 F.3d 150, 160 (2d Cir. 2010). Although for the purposes of a motion to dismiss [a court] must take all of the factual allegations in the complaint as true, [it is] not bound to accept as true a legal conclusion couched as a factual allegation. Iqbal, 556 U.S. at 678 (quoting Twombly, 550 U.S. at 555). When there are well-pleaded factual allegations in the complaint, a court should assume their veracity and then determine whether they plausibly give rise to an entitlement to relief. Id. A claim is facially plausible when the factual content pleaded allows a court to draw a reasonable inference that the defendant is liable for the misconduct alleged. Id. at 678. Determining whether a complaint states a facially plausible claim upon which relief may be granted is a context-specific task that requires the reviewing court to draw on its judicial experience and common sense. Id. at 679. Pro se complaints are held to less stringent standards than those drafted by lawyers, even following Twombly and Iqbal. Thomas v. Westchester, No. 12 CV 6718 (CS), 2013 WL 3357171 (S.D.N.Y. July 3, 2013). The court should read pro se complaints to raise the strongest arguments that they suggest, Kevilly v. New York, 410 F. App x 371, 374 (2d Cir. 2010) (summary order) (quoting Brownell v. Krom, 446 F.3d 305, 310 (2d Cir. 2006)); see also Harris v. Mills, 572 F.3d 66, 72 (2d Cir. 2009) ( even after Twombly, though, we remain obligated to construe a pro se complaint liberally. ). However, even pro se plaintiffs asserting civil rights claims cannot withstand a motion to dismiss unless their pleadings contain factual 2 allegations sufficient to raise a right to relief above the speculative level. Jackson v. N.Y.S. Dep t of Labor, 709 F. Supp. 2d 218, 224 (S.D.N.Y. 2010) (quoting Twombly, 550 U.S. at 555) (internal quotation marks omitted). Dismissal is justified, therefore, where the complaint lacks an allegation regarding an element necessary to obtain relief, and therefore, the duty to liberally construe a plaintiff s complaint [is not] the equivalent of a duty to re-write it. Geldzahler v. New York Medical College, 663 F. Supp. 2d 379, 387 (S.D.N.Y. 2009) (internal citations and alterations omitted). III. Discussion Plaintiff fails to state a claim against the City of Newburgh. In order to state a claim against a municipality, a plaintiff must allege that the municipality maintained a policy, practice, or custom that caused the plaintiff s constitutional injury. See Monell v. N.Y. Dep t of Soc. Servs., 436 U.S. 658, 694 (1978). In the context of a motion to dismiss, a plaintiff must make factual allegations that support a plausible 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. Cnty. of Monroe, 351 F. App x 543, 545 (2d Cir. 2009). Plaintiff provides no factual corroboration for the existence of a custom or policy of the City of Newburgh that would support a plausible Monell claim. Although Plaintiff makes conclusory statements to that effect in his opposition to the motion to dismiss, such conclusions may not be taken as fact and are entirely unsupported by fact. Plaintiff s Amended Complaint claims mistreatment by certain police officers in a single incident. It does not sustain a claim as to the City of Newburgh. Additionally, Plaintiff s motion requesting the relief sought in the complaint against the City of Newburgh and denial in its entirety [the] dismissal sought by City of Newburgh pursuant to FRCP 12(b)(6) is denied for the reasons stated above. 3

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