   17-30
   Torres v. Graeff

                     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 ASUMMARY ORDER@).       A PARTY
CITING TO 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
   8th day of November, two thousand seventeen.

   PRESENT:
            DENNIS JACOBS,
            GERARD E. LYNCH,
                 Circuit Judges,
            PAUL A. CROTTY,*
                 District Judge.
   _____________________________________

   Ricco Ray TORRES, Administrator of
   the Estate of Cindy M. Golden and
   as Parent and Natural Guardian of
   A.T., an infant under the age of 10
   years, and Joseph Bumbolo,
   Administrator of the Estate of
   Michele Bumbolo and Administrator
   of the Estate of Michael Bumbolo,
             Plaintiffs-Appellees,

              -v.-                                    17-30


        *   Judge Paul A. Crotty, United States District Court for
   the Southern District of New York, sitting by designation.
James W. GRAEFF, Dzevad
Bajrektarevic, Brian Banser,
Serif Seferagic, Maynard Anken,
John Able, and Jacob Penree, who
during their employment,
association, and/or affiliation
with the City of Utica, New York,
City of Utica P
olice Department and City of Utica
Fire Department, responded,
arrested, investigated, took into
custody, appeared or otherwise
participated,
          Defendants-Appellants,

Faxton-St. Luke's Healthcare, AKA
Mohawk Valley Health System,
Lingappa S. Amernath, M.D., John
Doe, M.D., Adirondack Emergency
Associates, Karen Brown, C.S.W.,
Leslie Congdon, R.N., Alonah
Spoor, Nursing Assistant/Care
Attendant, Michelle Blanchard,
R.N., Securitas Security Services
USA, Inc., City of Utica Fire
Department, Emergency Medical
Services, City of Utica, New York,
as the operator of the City
of Utica Police Department, Adrian
Irizarry and Brian Devins, who
during their employment,
association, and/or
affiliation with the City of
Utica, New York, City of Utica
Police Department, and City of
Utica Fire Department, responded,
arrested, investigated, took into
custody, appeared or otherwise
participated, and James Roe,
          Defendants.1
____________________________________

1 The Clerk of Court is respectfully directed to amend the official
caption to conform with the above.
FOR APPELLANTS:              ZACHARY C. OREN, First Assistant
                             Corporation Counsel, City of
                             Utica, New York, Utica, NY.

FOR APPELLEES:               STEPHANIE A. PALMER, Robert F.
                             Julian, P.C., Utica, NY.

     Appeal from a judgment of the United States District Court
for the Northern District of New York (Hurd, J.).

     UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, AND
DECREED that the judgment of the district court is REVERSED.

     Seven officers of the Utica Police Department appeal from
an order of the United States District Court for the Northern
District of New York (Hurd, J.) denying their motion to dismiss
on qualified immunity grounds a complaint brought against them
under 42 U.S.C. § 1983. “[W]e review the [district] court’s
determination de novo [and] accept as true all the material
allegations of the complaint.” Anderson v. Recore, 317 F.3d
194, 197 (2d Cir. 2003). Because we find that the complaint
fails to allege facts sufficient to make out a constitutional
claim of denial of due process on a theory of “state-created
danger,” we reverse. Cf. Sadallah v. City of Utica, 383 F.3d
34, 36 (2d Cir. 2004). We assume the parties’ familiarity with
the underlying facts, the procedural history, and the issues
presented for review.

     The complaint alleges that the manner in which the officers
responded to a reported domestic disturbance involving an
individual named Paul Bumbolo tacitly encouraged his later
triple-homicide and thus violated the substantive due process
rights of the three decedents.

     While “a [state actor’s] failure to protect an individual
against private violence simply does not constitute a violation
of the Due Process Clause,” Pena v. DePrisco, 432 F.3d 98, 108
(2d Cir. 2005) (quoting DeShaney v. Winnebago Cty. Dep’t of Soc.
Servs., 489 U.S. 189, 197 (1989)), a state actor may be held
liable to a victim of private violence under a theory of
“state-created danger” if the actor engaged in conduct that
“affirmatively enhanced the risk of [the] violence,” Okin v.
Vill. of Cornwall-On-Hudson Police Dep’t, 577 F.3d 415, 429 (2d
Cir. 2009). In the iteration of this theory relied on by the
complaint, police officers may be found to have enhanced the
risk of violence against a victim by providing the eventual
aggressor with assurances that he would be permitted to act with
impunity. See id. at 428-30; accord Pena, 432 F.3d at 111
(officers may be liable if they assured the aggressor that he
would not be “arrested, punished, or otherwise interfered with
while engaging in misconduct . . . likely to endanger the life,
liberty or property of [another]”).

     When, as here, there is no allegation that assurances of
that sort were communicated explicitly, we have found that a
plaintiff could allege their implicit communication only
through a showing of “repeated, sustained inaction by
[officers] in the face of potential acts of violence.” Okin,
577 F.3d at 28-30. Thus, in Okin, we found sufficient facts
to support a finding that the officers had assured a domestic
abuser of his impunity when they responded to his partner’s
“numerous”   reports   of   abuse   “over    a   fifteen-month
period”--including one incident during which he admitted to
“smack[ing] [her] around”--“without filing a domestic incident
report, interviewing [him], or making an arrest.” Id. at 427,
430.

     The facts in the complaint do not support a finding of
sustained inaction. According to the complaint, the officers
responded promptly to a single report that the mentally-ill
Bumbolo was acting violently, not by allowing him to remain in
his home with his three eventual victims and without reprimand,
but by placing him under custodial arrest pursuant to New York
Mental Hygiene Law § 9.41; utilizing force to handcuff him and
detain him in the back of a police cruiser; removing him from
the premises and transporting him to a hospital for evaluation
in accordance with § 9.41; assisting hospital staff in further
immobilizing him with a four-point leather restraint; and
instructing hospital staff to contact the police at a specified
number before releasing him. The fact that the officers asked
to be contacted at the conclusion of the medical evaluation
rather than remain physically present during it cannot be read
as having transformed their affirmative “interference” with
Bumbolo’s violence and their unwaveringly adversarial posture
toward him throughout the interdiction into a “plainly

                               4
transmitted [] message that what he did was permissible and
would not cause him problems with authorities.” Id. at 430
(internal quotation marks omitted). The complaint therefore
fails to state a constitutional claim against the officers.

     On the facts pled, the tragedy that ensued is simply not
one for which the officers may be held liable under the Due
Process Clause.

     For the foregoing reasons, we REVERSE the judgment of the
district court and REMAND with instructions that judgment be
entered in favor of the defendant officers on plaintiffs’
federal claim.     In addition, because plaintiffs have not
alleged a constitutional violation, it appears that plaintiffs’
Monell claim against the City of Utica is no longer viable. See
Segal v. City of New York, 459 F.3d 207, 219 (2d Cir. 2006).
Since dismissal of that claim would eliminate the only remaining
federal claim, it also appears that the exercise of supplemental
jurisdiction over the state-law claims would be inappropriate,
absent extraordinary circumstances.         See Kolari v. New
York-Presbyterian Hosp., 455 F.3d 118, 122 (2d Cir. 2006). The
district court should address these issues promptly upon
remand.

                             FOR THE COURT:
                             Catherine O’Hagan Wolfe, Clerk




                               5
