     14-864
     D.S. v. City of Peekskill

                          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 Thurgood Marshall United
 3       States Courthouse, 40 Foley Square, in the City of New York,
 4       on the 22nd day of October, two thousand fourteen.
 5
 6       PRESENT: DENNIS JACOBS,
 7                ROBERT D. SACK,
 8                CHRISTOPHER F. DRONEY,
 9                              Circuit Judges.
10
11       - - - - - - - - - - - - - - - - - - - -X
12       D.S.,
13                Plaintiff-Appellant,
14
15                    -v.-                                               14-864
16
17       City of Peekskill and Westchester
18       County,
19                Defendants-Appellees.
20       - - - - - - - - - - - - - - - - - - - -X
21
22       FOR APPELLANT:                        Steven M. Warshawsky, The
23                                             Warshawsky Law Firm, New York,
24                                             New York.
25
26       FOR APPELLEES:                        Kyle C. McGovern, Desmond C.B.
27                                             Lyons, Diane B. Cavanaugh, Lyons
28                                             McGovern, LLP, White Plains, New

                                                  1
 1                              York, for defendant-appellee
 2                              Westchester County.
 3
 4                              Lalit K. Loomba, Peter A.
 5                              Meisels, John M. Flannery,
 6                              Wilson, Elser, Moskowitz,
 7                              Edelman & Dicker LLP, White
 8                              Plains, New York, for defendant-
 9                              appellee the City of Peekskill.
10
11        Appeal from a judgment of the United States District
12   Court for the Southern District of New York (Karas, J.).
13
14        UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED
15   AND DECREED that the judgment of the district court be
16   AFFIRMED.
17
18        Plaintiff-appellant D.S. appeals from the judgment of
19   the United States District Court for the Southern District
20   of New York (Karas, J.), granting motions by the City of
21   Peekskill and Westchester County (“defendants”) to dismiss
22   under Federal Rule of Civil Procedure 12(b)(6). We assume
23   the parties’ familiarity with the underlying facts, the
24   procedural history, and the issues presented for review.
25
26        D.S. brings a procedural due process claim under 42
27   U.S.C. § 1983, alleging that defendants disclosed his sealed
28   criminal records in violation of New York Criminal Procedure
29   Law § 160.50. D.S. argues that Section 160.50 creates a
30   liberty interest in the confidentiality of sealed criminal
31   records, and that defendants’ (undisputed) violation of
32   Section 160.50 deprived him of liberty without due process
33   of law.
34
35        Defendants argue, and the district court held, that
36   Section 160.50 does not create a liberty interest that gives
37   rise to a federal constitutional claim. Defendants also
38   argue that D.S. fails to state a claim for two simpler
39   reasons: (1) he has not plausibly alleged any intentional
40   deprivation of his constitutional rights, and (2) he has not
41   alleged a basis for municipal liability. We affirm on the
42   ground that D.S. has not plausibly pleaded that his injury
43   was inflicted intentionally.
44

                                  2
 1        We review de novo a district court’s grant of a motion
 2   to dismiss for failure to state a claim, accepting all
 3   factual allegations as true and drawing all reasonable
 4   inferences in favor of the plaintiff. Lotes Co., Ltd. v.
 5   Hon Hai Precision Indus. Co., 753 F.3d 395, 403 (2d Cir.
 6   2014). “To survive a motion to dismiss, a complaint must
 7   contain sufficient factual matter, accepted as true, to
 8   ‘state a claim for relief that is plausible on its face.’”
 9   Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell
10   Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)).
11
12        “[T]he Due Process Clause is simply not implicated by a
13   negligent act of an official causing unintended loss of or
14   injury to life, liberty, or property.” Daniels v. Williams,
15   474 U.S. 327, 328 (1986) (emphasis omitted); see also
16   Shannon v. Jacobowitz, 394 F.3d 90, 94 (2d Cir. 2005) (“[I]n
17   Daniels[, the U.S. Supreme Court] clearly articulated that a
18   finding of intentional conduct was a prerequisite for a due
19   process claim.”). So to survive a motion to dismiss, D.S.
20   must plausibly allege that defendants violated his
21   constitutional rights intentionally--not just negligently.
22
23        He has not done so. The only allegations in the
24   complaint are either insufficient to demonstrate intent
25   (even if accepted as true), or are conclusory allegations
26   not entitled to the presumption of truth.
27
28        For example, D.S. alleges that, “[u]pon information and
29   belief,” the Peekskill chief of police “personally and/or by
30   and through his attorney James A. Mitchell, . . .
31   authorized, approved, and/or acquiesced in the disclosure of
32   D.S.’s sealed police file.” Compl. ¶ 26. But a government
33   official approving the disclosure of a sealed file--
34   presumably relying on his attorney to handle the document
35   production--is not the same thing as a government official
36   approving the disclosure of a file he knows to be sealed.
37   D.S.’s allegation might support an inference of negligence;
38   it does not plausibly allege intent.
39
40        D.S. also alleges that “[t]he government defendants
41   acted with intentional, knowing, callous, and/or reckless
42   indifference to the plaintiff’s constitutional rights,”
43   Compl. ¶ 51, and that “[a]t all relevant times, one or more
44   county officials with final policy-making authority had

                                  3
 1   knowledge of and authorized, approved, and/or acquiesced in
 2   the unconstitutional conduct alleged in this case,” Compl.
 3   ¶ 5. But conclusory allegations like these are not entitled
 4   to the presumption of truth. Iqbal, 556 U.S. at 681.
 5
 6        The pleading does not plausibly allege that defendants
 7   would know that their document production in the Deskovic
 8   litigation included twenty-year-old files sealed pursuant to
 9   Section 160.50. And, critically, D.S. makes no allegation
10   to the contrary; that is, D.S. does not allege that any
11   government official was aware (or should have been aware)
12   that their document production included sealed files.
13   Similarly, he does not allege that any government official
14   intended to disclose sealed files.
15
16        D.S. quotes Hudson v. New York City, 271 F.3d 62, 68
17   (2d Cir. 2001), for the proposition that “Section 1983 does
18   not require any intent to violate constitutional rights.”
19   True enough. But, although Section 1983 has no intent
20   requirement, a Section 1983 plaintiff must still allege an
21   underlying constitutional violation. And some
22   constitutional violations--like a violation of the Due
23   Process Clause--do require intent. See, e.g., Gold v.
24   Feinberg, 101 F.3d 796, 800 (2d Cir. 1996) (“[M]ore than
25   negligent conduct by the state actor is needed in order for
26   a cognizable § 1983 claim to exist based on violations of
27   the due process clause.”); see also Hudson, 271 F.3d at 68
28   (“§ 1983 plaintiffs need only demonstrate intent where the
29   underlying constitutional deprivation . . . calls for it.”).
30
31        In the end, D.S. has “not nudged [this] claim[] across
32   the line from conceivable to plausible.” Twombly, 550 U.S.
33   at 570. Although the district court did not address the
34   question of intent, “[w]e may, of course, affirm on any
35   basis for which there is a record sufficient to permit
36   conclusions of law, including grounds upon which the
37   district court did not rely.” Cromwell Assocs. v. Oliver
38   Cromwell Owners, Inc., 941 F.2d 107, 111 (2d Cir. 1991)
39   (citations omitted). We do so here.1
40

         1
              We do not decide whether Section 160.50 creates a
     liberty interest protected by the Due Process Clause, or
     whether D.S. has alleged a basis for municipal liability.
                                  4
 1        For the foregoing reasons, we hereby AFFIRM the
 2   judgment of the district court.
 3
 4                              FOR THE COURT:
 5                              CATHERINE O’HAGAN WOLFE, CLERK
 6
 7
 8
 9
10
11
12
13
14
15
16
17
18
19




                                  5
