16-1476-cv
Coleman v. County of Suffolk
                                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.

       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 4th day of April, two thousand seventeen.

PRESENT: REENA RAGGI,
                 DENNY CHIN,
                 SUSAN L. CARNEY,
                                 Circuit Judges.
----------------------------------------------------------------------
PHYLLIS COLEMAN, Individually and as the
Administratrix of the Estate of Santia N. Williams,
                         Plaintiff-Appellant,

                               v.                                        No. 16-1476-cv

COUNTY OF SUFFOLK, CHRISTOPHER VERWYS,
Suffolk County Police Officer, JASON MORGE, Suffolk
County Police Officer, JOHN BRUNKARD, Suffolk
County Police Officer, MIGUEL VIAS, Suffolk County
Police Officer, CORRINE TORRES, Suffolk County
Police Officer, JOHN MCAULEY, Suffolk County Police
Officer, JOHN MERCURIO, Suffolk County Police
Officer, NICHOLAS ASPROMGOS, Suffolk County
Police Officer, JAMES O’CALLAGHAN, Suffolk County
Police Officer, SAMMY SALEH, Suffolk County Police
Officer, GREGORY POULETSOS, Suffolk County Police
Officer, LUIS RUIZ, Suffolk County Police Officer,
VALENTIN ROSADO, Suffolk County Police Officer,
FRANK ORTIZ, Suffolk County Police Officer, and
CHRISTOPHER LOVE,
                   Defendants-Appellees,

                                                    1
SUFFOLK COUNTY POLICE DEPARTMENT,
SUFFOLK COUNTY SHERIFFS DEPARTMENT,
JOHN and JANE DOES 1–10, Police Officers and/or
Detectives, JOHN and JANE DOES 11–20, Deputy
Sheriffs, SUFFOLK COUNTY POLICE BENEVOLENT
ASSOCIATION and NEWSDAY LLC,
                         Defendants.*
----------------------------------------------------------------------
APPEARING FOR APPELLANT:                          SCOTT A. KORENBAUM, New York, New
                                                  York (Frederick K. Brewington, on the brief),
                                                  Law Offices of Frederick K. Brewington,
                                                  Hempstead, New York.

APPEARING FOR APPELLEES:                   BRIAN C. MITCHELL, Assistant County
                                           Attorney, for Dennis M. Brown, Suffolk County
                                           Attorney, Hauppauge, New York.


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

of New York (Denis R. Hurley, Judge).

       UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED,

AND DECREED that the judgment entered on April 7, 2016, is AFFIRMED.




* The Clerk of Court is directed to amend the case caption as set forth above.

                                              2
       Plaintiff Phyllis Coleman, individually and as representative of the estate of her

daughter, Santia N. Williams, appeals from an award of summary judgment to

defendants, Suffolk County and several of its police officers, for alleged violations of

substantive due process in connection with Williams’s murder by her estranged

boyfriend, Jason Jenkins.1 See 42 U.S.C. § 1983. Specifically, Coleman argues that,

in their responses to certain 911 calls, the defendant officers increased the risk that

Jenkins would physically harm Williams.         Coleman further challenges the district

court’s related declination of supplemental jurisdiction over her state-law tort claims.

We review an award of summary judgment de novo, viewing the record in the light most

favorable to the non-movant, and resolving all disputed facts in her favor.   See Mitchell

v. City of New York, 841 F.3d 72, 77 (2d Cir. 2016). We assume the parties’ familiarity

with the facts and record of prior proceedings, which we reference only as necessary to

explain our decision to affirm.

1.     Federal Due Process Claim for State-Created Danger

       As a general matter, a state’s failure to protect an individual against acts of

violence committed by a private party does not violate due process. See DeShaney v.

Winnebago Cty. Dep’t of Soc. Servs., 489 U.S. 189, 197 (1989); see also Lombardi v.

Whitman, 485 F.3d 73, 79 (2d Cir. 2007) (“It is not enough to allege that a government

actor failed to protect an individual from a known danger of bodily harm or failed to warn


1
  Coleman does not challenge the independent basis for awarding summary judgment to
defendants Love, Pouletsos, and Torres. We, therefore, do not address those defendants
further in this order.


                                            3
the individual of that danger.”). Due process may be implicated where officials engage

in conduct that explicitly or implicitly sanctions private violence. See Dwares v. City of

New York, 985 F.2d 94, 99 (2d Cir. 1993), abrogated on other grounds by Leatherman v.

Tarrant Cty. Narcotics Intelligence & Coordination Unit, 507 U.S. 163, 167–68 (1993);

Pena v. DePrisco, 432 F.3d 98, 111 (2d Cir. 2005); accord Okin v. Vill. of

Cornwall-on-Hudson Police Dep’t, 577 F.3d 415, 430 (2d Cir. 2009). To warrant due

process liability, however, the conduct must rise to the level of an “affirmative act” that

“communicates . . . official sanction of private violence” to the perpetrator. Okin v. Vill.

of Cornwall-on-Hudson Police Dep’t, 577 F.3d at 429, 435 (citations omitted).

       We identify no such conduct here. The record, even viewed most favorably to

Coleman, shows that most named defendants neither said nor did anything that could be

construed—even implicitly—to condone violence by Jenkins.            To the extent a few

officers are alleged to have made statements that could be construed to deny Williams

future assistance against Jenkins, there is no evidence that these statements were made in

Jenkins’s presence so as to signal to him any condonation of violence by him. In short,

this case is not akin to Okin, where officers responding to 911 calls repeatedly and

“openly expressed camaraderie” with a physical abuser and contempt for his victim.

See id. at 430. Rather, the record here reveals affirmative actions taken by defendants

against Jenkins, including arresting him on outstanding warrants, forcing him to restore

property to Williams’s home; requiring him to assist in locating the couple’s child; and

reading to him an order of protection obtained by Williams.



                                             4
       In so ruling, we do not minimize the tragedy of Williams’s death. We hold only

that, under the state-created danger doctrine dictated by precedent, the actions taken by

the officer defendants did not so increase the risk of harm to Williams as to permit a

finding of due process liability.

       We therefore conclude, as the district court did, that the defendant officers are

entitled to summary judgment on Coleman’s due process claims.

2.     Municipal Liability

       We similarly affirm the summary judgment award to Suffolk County. Where, as

here, the conduct of individual defendant officers does not violate the plaintiff’s

constitutional rights, the municipality is generally not liable for a policy or practice

pursuant to which the conduct was performed. See City of Los Angeles v. Heller, 475

U.S. 796, 799 (1986) (holding municipality not liable where individual officer “inflicted

no constitutional harm”); accord Curley v. Vill. of Suffern, 268 F.3d 65, 71 (2d Cir.

2001). While municipal liability may arise absent an officer’s constitutional deprivation

if a deprivation was nonetheless caused by a non-party for whom the municipality is also

bound to answer, see Barrett v. Orange Cty. Human Rights Comm’n, 194 F.3d 341, 350

(2d Cir. 1999), that is not this case because Coleman relies exclusively on the officer

conduct cited as the basis for policymaker liability, see Curley v. Vill. of Suffern, 268

F.3d at 70 (affirming summary judgment award where municipality was “implicated in

plaintiff’s . . . complaint only by way of the individual defendants’ conduct”).




                                             5
3.     Declination of Supplemental Jurisdiction

       Coleman appears not to seek independent reinstatement of her state-law claims,

arguing only that jurisdiction must be exercised over them insofar as “her federal law

claims are viable.” Appellant’s Br. 59. In any event, we would review the district

court’s decision to decline supplemental jurisdiction over such claims in the absence of

their federal counterparts only for abuse of discretion, which we do not identify here.

See Delaney v. Bank of Am. Corp., 766 F.3d 163, 170 (2d Cir. 2014) (“In general, where

the federal claims are dismissed before trial, the state claims should be dismissed as

well.” (internal quotation marks omitted)).

4.    Conclusion

       We have considered Coleman’s other arguments and conclude that they are

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

                                          FOR THE COURT:
                                          Catherine O’Hagan Wolfe, Clerk of Court




                                              6
