     09-5276-pr
     Bennett v. New York City


                          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 COURT’S 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 “SUMMARY ORDER”). A PARTY CITING A SUMMARY ORDER MUST
     SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.

 1            At a stated term of the United States Court of Appeals
 2       for the Second Circuit, held at the Daniel Patrick Moynihan
 3       United States Courthouse, 500 Pearl Street, in the City of
 4       New York, on the 7th day of July, two thousand eleven.
 5
 6       PRESENT: DENNIS JACOBS,
 7                              Chief Judge,
 8                DEBRA ANN LIVINGSTON,
 9                              Circuit Judge,
10                JED S. RAKOFF,*
11                              District Judge.
12
13       - - - - - - - - - - - - - - - - - - - -X
14      ANTHONY BENNETT,
15
16                   Plaintiff-Appellant,
17
18                   -v.-                                               09-5276-pr
19
20      CITY OF NEW YORK, CITY OF NEW YORK
21      DEPARTMENT OF CORRECTIONS, JOHN DOE #1,
22
23               Defendants-Appellees.**
24      - - - - - - - - - - - - - - - - - - - -X


                *
              The Honorable Jed S. Rakoff, of the United States
         District Court for the Southern District of New York,
         sitting by designation.
                **
                The Clerk of Court is respectfully instructed to
         amend the official case caption as shown above.
                                                 1
 1   FOR APPELLANT:    Jonathan H. Romberg (Kathleen Gallagher,
 2                     Kimia Mousavi, on brief)
 3                     Seton Hall University School of Law
 4                     Center for Social Justice
 5                     Newark, NJ
 6
 7   FOR APPELLEES:    Sharyn Michele Rootenberg (Morgan D.
 8                     Kuntz, Chaim E. Bryski, on brief), for
 9                     Michael A. Cardozo,
10                     Corporation Counsel, City of New York
11                     New York, NY
12
13
14        Appeal from a judgment by the United States District
15   Court for the Southern District of New York (Gardephe, J.)
16   dismissing Appellant’s complaint with prejudice.
17
18        UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED
19   AND DECREED that the district court’s judgment is VACATED in
20   part; its order granting defendants’ motion to dismiss is
21   REVERSED as to John Doe #1, AFFIRMED as to the City of New
22   York, and AFFIRMED as to the New York City Department of
23   Corrections; its denial of leave to amend the complaint is
24   AFFIRMED; and the case is REMANDED to the district court for
25   proceedings consistent with this order.
26
27        Anthony Bennett appeals from a judgment by the district
28   court dismissing with prejudice his § 1983 claims against
29   all three defendants. We assume the parties’ familiarity
30   with the underlying facts, the procedural history, and the
31   issues presented for review.
32
33        We review de novo a district court’s dismissal of a
34   complaint for failure to state a claim, “assuming all well-
35   pleaded, nonconclusory factual allegations in the complaint
36   to be true.” Kiobel v. Royal Dutch Petroleum Co., 621 F.3d
37   111, 124 (2d Cir. 2010). To survive a motion to dismiss, a
38   complaint “must contain sufficient factual matter, accepted
39   as true, to state a claim to relief that is plausible on its
40   face.” Ashcroft v. Iqbal, 129 S. Ct. 1937, 1949 (2009)
41   (internal quotation marks omitted). A “document filed pro
42   se is to be liberally construed and a pro se complaint,
43   however inartfully pleaded, must be held to less stringent
44   standards than formal pleadings drafted by lawyers.” Boykin
45   v. KeyCorp, 521 F.3d 202, 214 (2d Cir. 2008) (internal
46   quotation marks omitted). Such liberal construction is
47   especially appropriate where, as here, the plaintiff is an


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 1   inmate using a boilerplate “fill in the blanks” complaint
 2   provided by the court.
 3
 4        To state a viable claim against an individual under 42
 5   U.S.C. § 1983, the plaintiff must plausibly allege that the
 6   defendant, while acting under the color of law, “deprived
 7   the plaintiff of a right guaranteed by the constitution or
 8   laws of the United States.” Bryant v. Maffucci, 923 F.2d
 9   979, 982 (2d Cir. 1991). It is uncontested that the prison
10   guard, John Doe #1, was acting under the color of law when
11   he strip searched Bennett. The district court concluded
12   that Bennett’s complaint failed to raise a reasonable
13   inference that John Doe #1 violated Bennett’s constitutional
14   rights. We disagree.
15
16        The district court concluded that Bennett’s complaint
17   failed to state a claim against John Doe #1 for three
18   reasons: (1) It did not specify which of Bennett’s
19   constitutional rights were violated; (2) It did not allege
20   that John Doe #1 lacked reasonable suspicion to strip search
21   Bennett; and (3) It did not allege that John Doe #1
22   intentionally violated the Fourth Amendment. None of these
23   reasons is persuasive. The complaint’s allegation that Doe
24   Guard #1 violated the McBean Settlement--the result of
25   litigation over New York City’s unconstitutional policy of
26   strip searching misdemeanants without reasonable suspicion--
27   creates the reasonable inference that Bennett is claiming a
28   violation of his Fourth Amendment rights and that he is
29   alleging the search lacked reasonable suspicion. Shain v.
30   Ellison, 273 F.3d 56, 63 (2d Cir. 2001) (holding that strip
31   search of misdemeanants upon intake to correctional
32   facilities without reasonable suspicion violates the Fourth
33   Amendment). Similarly, while Bennett does not specifically
34   allege that John Doe #1 acted intentionally, such allegation
35   is reasonably implied by the complaint’s other allegations;
36   Bennett’s failure to specifically allege John Doe #1's
37   mental state is insufficient to render deficient a pro se
38   complaint set-out on a government-furnished form that does
39   not ask about mental state. We therefore conclude that
40   Bennett’s complaint states a viable § 1983 claim against
41   John Doe #1, and we reverse the district court’s dismissal
42   of Bennett’s complaint as to John Doe #1.
43
44        To state a viable claim of municipal liability under 42
45   U.S.C. § 1983, a plaintiff must plausibly allege that the
46   violation of his constitutional rights was caused by an
47   official policy or custom of the municipality. Zahra v.
48   Town of Southold, 48 F.3d 674, 685 (2d Cir. 1995). An

                                  3
 1   official policy may be a formal written policy or
 2   “deliberate indifference” in the face of “a pattern of
 3   misconduct.” Reynolds v. Giuliani, 506 F.3d 183, 192 (2d
 4   Cir. 2007). The district court concluded that Bennett’s
 5   complaint failed to plausibly allege any such policy,
 6   custom, or deliberate indifference. We agree. Bennett’s
 7   complaint, even construed liberally, never alleges any facts
 8   from which a court could reasonably infer that New York City
 9   had any pattern, policy, or custom of violating
10   misdemeanants’ Fourth Amendment rights. Nor does the
11   complaint contain facts from which a court could reasonably
12   infer deliberate indifference by New York City: Other than
13   the inclusion of “New York City” in the caption, Bennett’s
14   complaint does not mention New York at all. We therefore
15   affirm the district court’s dismissal of Bennett’s complaint
16   as to New York City.
17
18        On appeal, Bennett concedes that the district court
19   correctly dismissed his complaint as to the New York City
20   Department of Corrections (“DOC”). We therefore affirm this
21   dismissal.
22
23        The district court dismissed Bennett’s claims against
24   all the defendants on Rule 12(b)(6) grounds, without
25   considering the impact, if any, of the Prison Litigation
26   Reform Act (“PLRA”). 42 U.S.C. § 1997e. Because the
27   district court did not reach the PLRA issue, we likewise
28   decline to reach it.
29
30        Finally, we review for abuse of discretion a district
31   court’s decision whether to grant leave to amend a deficient
32   complaint, and it is within a district court’s discretion to
33   deny leave to amend implicitly by not addressing the issue
34   and simply dismissing the complaint with prejudice. In re
35   Tamoxifen Citrate Antitrust Litig., 466 F.3d 187, 220 (2d
36   Cir. 2006). “[W]here amendment would be futile, denial of
37   leave to amend is proper.” Id. Given that Bennett already
38   received one opportunity to amend his complaint, that he
39   concedes he cannot sue the DOC, that he already states a
40   valid § 1983 claim against John Doe #1, and that nothing in
41   his complaint suggests he could show the type of policy or
42   deliberate indifference necessary to state a valid claim
43   against New York City, it was reasonable for the district
44   court to conclude that a second leave to amend would be
45   futile. We therefore affirm the district court’s implicit
46   denial of leave to amend the complaint.
47


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 1        We hereby VACATE in part the judgment of the district
 2   court, REVERSE the dismissal of the complaint as to John Doe
 3   #1, AFFIRM the dismissal of the complaint as to the City of
 4   New York and the New York City Department of Corrections,
 5   AFFIRM the denial of leave to amend the complaint, and
 6   REMAND the case to the district court for proceedings
 7   consistent with this order.
 8
 9
10                              FOR THE COURT:
11                              CATHERINE O’HAGAN WOLFE, CLERK
12
13




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