17‐2845
Cotto v. City of New York



                            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 13th day of March, two thousand twenty.

PRESENT: PIERRE N. LEVAL,
           PETER W. HALL,
           GERARD E. LYNCH,
                      Circuit Judges.
_____________________________________

Iris Cotto,

                            Plaintiff‐Appellant,

                            v.                            17‐2845
City of New York, Police Officer David J. Coote, An
Officer of the 48th Precinct AKA Police Officer John
Doe, Shield #019647,
                    Defendants‐Appellees,

Police Officer John Doe, John/David Doe/Coote,

                 Defendants.
_____________________________________

For Appellant:                        Conway Martindale, II, Martindale &
                                      Associates, PLLC, New York, New York.

For Appellee:                         ELINA DRUKER (Richard Dearing, Scott
                                      Shorr on the brief) for James E. Johnson,
                                      Corporation Counsel of the City of New
                                      York, New York, New York.

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

District of New York (Sweet, J.).

      UPON       DUE    CONSIDERATION,          IT   IS    HEREBY      ORDERED,

ADJUDGED, AND DECREED that the judgment of the district court is

AFFIRMED.

      Iris Cotto appeals from a judgment of the United States District for the

Southern District of New York (Sweet, J.) entered on August 11, 2017. We assume

the parties’ familiarity with the underlying facts, the record of prior proceedings,




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and the arguments on appeal, which we reference only as necessary to explain our

decision to affirm.

                                          I.

      The following factual allegations are taken from the amended complaint,

and we assume them to be true for the purposes of this appeal. See Pension Benefit

Guar. Corp. ex rel. St. Vincent Catholic Med. Ctrs. Ret. Plan v. Morgan Stanley Inv.

Mgmt. Inc., 712 F.3d 705, 717 (2d Cir. 2013).

      The complaint alleges as follows: On April 28, 2013, Cotto was stopped by

police while driving with her boyfriend, dragged out of her vehicle, and

handcuffed and arrested for allegedly possessing a controlled substance.           In

effectuating the arrest, NYPD officers used excessive force, including macing

Cotto in the face, repeatedly slamming the vehicle door on her leg, and punching

Cotto with closed fists on her face and body. When Cotto arrived at central

booking, she communicated to officers that she needed medical attention, which

was not immediately provided. She was held in custody for two days prior to her

arraignment on charges of felony possession of a controlled substance. She was

then transferred to the city’s Rikers Island jail. Cotto’s criminal case was dismissed




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on December 12, 2013, after the lab report for the crack cocaine she was charged

with possessing came back negative.

      Over a year and a half later, in November 2015, Cotto filed suit against the

City of New York (“the City”), the New York Police Department, and Police

Officer John Doe of the 48th Precinct, alleging violations of 42 U.S.C. § 1983 and

state law. In August 2016, she filed a proposed amended complaint against the

City and “Police Officer John Doe (an officer of the 48th Precinct aka Police Officer

David J. Coote, Shield #019647)”; Cotto’s motion to file her amended complaint

was granted on September 29, 2016.

      The Defendants‐Appellees thereafter moved to dismiss the amended

complaint. In granting the motion to dismiss, the district court held that the claims

against Officer Coote were time barred since Cotto did not identify Officer Coote

by name until she filed her amended complaint after the applicable limitations

period expired and that Cotto could not take advantage of the relation‐back

doctrine to make her claims timely.        The district court also dismissed Cotto’s

claims against the City for municipal liability for failure to allege a policy or

custom sufficient to create liability under Monell v. Dep’t of Soc. Servs., 436 U.S. 658

(1978), and dismissed Cotto’s state law claims as time barred. Cotto appealed.

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                                          II.

      “We review de novo a district court’s dismissal pursuant to Fed. R. Civ. P.

12(b)(6),” asking “whether the complaint contains ‘sufficient factual matter,

accepted as true, to state a claim to relief that is plausible on its face.’” Gamm v.

Sanderson Farms, Inc., 944 F.3d 455, 462 (2d Cir. 2019) (citing Ashcroft v. Iqbal, 556

U.S. 662, 678 (2009) (internal quotation marks omitted)). In so doing, we “accept[]

as true all well‐pleaded factual allegations in the complaint [and] draw[] all

reasonable inferences in favor of the nonmoving party.” Gamm, 944 F.3d at 462

(internal quotation marks and citation omitted). But we “are not bound to accept

as true a legal conclusion couched as a factual allegation.” Bell Atlantic Corp. v.

Twombly, 550 U.S. 544, 555 (2007) (internal quotation marks and citation omitted).

                                         III.

      “Section 1983 actions filed in New York are . . . subject to a three‐year statute

of limitations.” Hogan v. Fischer, 738 F.3d 509, 517 (2d Cir. 2013). Cotto’s claims

relate to the incident alleged to have occurred on April 28, 2013 and thus accrued

on or about that date. See Singleton v. City of New York, 632 F.2d 185, 191 (2d Cir.

1980) (explaining that a Section 1983 claim accrues at “that point in time when the

plaintiff knows or has reason to know of the injury which is the basis of his action”

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(citation omitted)). More than three years later, Cotto amended her complaint to

replace the “John Doe” defendant with Officer Coote’s name. “Generally, ‘John

Doe’ pleadings cannot be used to circumvent statutes of limitations because

replacing a ‘John Doe’ with a named party in effect constitutes a change in the

party sued.” Hogan, 738 F.3d at 517. But when an amended pleading meets the

requirements of Fed. R. Civ. P. 15(c), it is considered to “relate back” to the date of

the original complaint, thereby rendering the action timely against the newly

named party. Id. at 517.

      Fed. R. Civ. P. 15(c) provides two situations when “[a]n amendment to a

pleading relates back to the date of the original pleading” that are relevant here:

(1) under Rule 15(c)(1)(A), when “the law that provides the applicable statute of

limitations allows relation back”; and (2) under Rule 15(c)(1)(C), when the claim

arose “out of the conduct set out in the original pleading; the party to be brought

in . . . received such notice that it will not be prejudiced in maintaining its defense;

that party should have known that, but for a mistake of identity, the original action

would have been brought against it; and the second and third criteria are fulfilled

within 120 days of the filing of the original complaint, and the original complaint




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[was] filed within the limitations period.” Id. at 517 (citing Barrow v. Wethersfield

Police Dept., 66 F.3d 466, 468‐69 (2d Cir. 1995)).

      As Cotto points out, “in a federal case applying New York law . . . a plaintiff

seeking to replace a ‘John Doe’ defendant with the properly‐named defendant

may avoid a statutory time bar by satisfying the requirements of CPLR § 1024.”

Appellant Br. at 15–16. CPLR § 1024, as interpreted by New York state courts, does

permit John Doe substitutions nunc pro tunc. Hogan, 738 F.3d at 518–19 (citing New

York cases). For such substitutions, however, a party must show, among other

things, that “the new party knew or should have known that, but for a . . . mistake

by plaintiff as to the identity of the proper parties, the action would have been

brought against him as well.” Buran v. Coupal, 87 N.Y.2d 173, 178–79 (1995); see

also Kirk v. University OB‐GYN Assocs., Inc., 960 N.Y.S.2d 739, 795 (4th Dep’t 2013);

Bumpus v. N.Y.C. Transit Auth., 883 N.Y.S.2d 99, 104 (“A second requirement

unique to CPLR 1024 is that the ‘Jane Doe’ party be described in such form as will

fairly apprise the party that she is the intended defendant.”). There is no evidence

in the record that Officer Coote had any knowledge that he was the “John Doe”

officer indicated in Cotto’s initial complaint or that he knew or should have known

that the lawsuit should have been brought against him. Nothing in the record

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indicates that the NYPD or Corporation Counsel apprised Officer Coote of the

lawsuit. Because Cotto has not shown that Officer Coote knew or should have

known about the lawsuit and that he was the intended defendant, she cannot use

Fed. R. Civ. P. 15(c)(1)(A), through CPLR § 1024, to render her complaint timely as

against Officer Coote.

      As to the second avenue by which Cotto could make her complaint timely

as against Officer Coote, we have explained that “the lack of knowledge of a John

Doe defendant’s name does not constitute a ‘mistake of identity’” for the purposes

of Rule 15(c)(1)(C). Hogan, 738 F.3d at 518. Cotto does not contest that she failed

to identify Officer Coote because she did not know his name and, contrary to her

arguments, how New York state courts interpret “mistake” is irrelevant to the

inquiry under Rule 15(c)(1)(C). Cotto therefore cannot use Rule 15(c)(1)(C) to

relate her claims against Officer Coote back to the time of filing her original “John

Doe” complaint.

                                        IV.

      Under Monell, the City can be liable under § 1983 only when the alleged

deprivation of rights occurs pursuant to a governmental policy, custom, or usage.

436 U.S. at 690‐91; id. at 691 (“Congress did not intend municipalities to be held

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liable unless action pursuant to official municipal policy of some nature caused a

constitutional tort.”); Jones v. Town of East Haven, 691 F.3d 72, 80 (2d Cir. 2012).

“[I]solated acts of excessive force by non‐policymaking municipal employees are

generally not sufficient to demonstrate a municipal custom, policy, or usage that

would justify municipal liability.” Jones, 691 F.3d at 81. But “such acts would

justify liability of the municipality if, for example, they were done pursuant to

municipal policy, or were sufficiently widespread and persistent to support a

finding that they constituted a custom, policy, or usage of which supervisory

authorities must have been aware, or if a municipal custom, policy, or usage

would be inferred from evidence of deliberate indifference of supervisory officials

to such abuses.” Id. “[T]he mere assertion that a municipality has such a custom or

policy is insufficient in the absence of allegations of fact tending to support, at least

circumstantially, such an inference.” Zahra v. Town of Southold, 48 F.3d 674, 685 (2d

Cir. 1995) (internal quotation marks, citations, and alterations omitted).

      The district court held that the amended complaint “make[s] no allegations

that can support a Monell claim” because Cotto “allege[d] only a single, isolated

incident,” App. at 85, involving “actors below the policy‐making level,” Ricciuti v.

N.Y.C. Transit Auth., 941 F.2d 119, 123 (2d Cir. 1991), and further that the complaint

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did not identify a particular deficiency in the City’s training program that led to

Cotto’s injury. See Amnesty Am. v. Town of West Hartford, 361 F.3d 113, 129 (2d Cir.

2004) (explaining that a plaintiff must identify a specific deficiency in a

municipality’s training program and show that this deficiency caused the

constitutional deprivation of which she is complaining).

      We agree. Cotto’s allegations do not support a Monell claim because they

focus on the individual officers and isolated events leading to Cotto’s stop,

detention, and prosecution without plausibly alleging a custom or policy pursuant

to which those violations occurred. Cotto’s citation of Floyd v. City of New York,

959 F. Supp. 2d 540 (S.D.N.Y. 2013), does not support her claim of municipal

liability. Not only has Cotto not alleged facts that suggest she would fall within

the groups of people discriminated against in Floyd, but Floyd dealt with an

entirely different form of stops. Of course, the allegations of officer misconduct, if

true, are highly disturbing, but allegations of disturbing and abusive acts by

individual officers, without more, cannot sustain a claim for municipal liability.

Cotto’s conclusory allegations that the City’s policy, custom, practice, or failure to

train its employees led to her constitutional rights being violated are insufficient

to survive a motion to dismiss. See Twombly, 550 U.S. at 555 (“While a complaint

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attacked by a Rule 12(b)(6) motion to dismiss does not need detailed factual

allegations, a plaintiff’s obligation to provide the grounds of his entitlement to

relief requires more than labels and conclusions, and a formulaic recitation of the

elements of a cause of action will not do” (citations, internal quotation marks, and

alterations omitted)).

                                          V.

      The district court dismissed Cotto’s state law claims of malicious

prosecution, intentional or reckless infliction of emotional distress, negligent

infliction of emotional distress, and assault and battery, and the related claims

against the City on a theory of respondeat superior liability, on the grounds that they

“are barred for failure to comply with New York’s General Municipal Law §§ 50‐

e and 50‐i.” App. at 86. Cotto expressly wrote to the district court that she

“concedes that all [her] state claims . . . are barred by statute.”         Opp’n to

Defendant’s 11/21/16 Letter Motion, 15‐cv‐9123, ECF No. 50 at 5; those claims are

therefore waived. See United States v. Yu‐Leung, 51 F.3d 1116, 1121 (2d Cir. 1995).

The district court therefore did not err in holding that Cotto’s state law claims were

barred because they were not brought within the time period prescribed by

General Municipal Law § 50‐i.

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                                     ***


      We have considered Cotto’s remaining arguments and find them to be

without merit. We hereby AFFIRM the judgment of the district court.




                                    FOR THE COURT:


                                    Catherine O’Hagan Wolfe, Clerk of Court




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