    19-3091
    Salem 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
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
    29th day of April, two thousand twenty.

    PRESENT:
                GUIDO CALABRESI,
                RICHARD C. WESLEY,
                JOSEPH F. BIANCO,
                      Circuit Judges.
    _____________________________________

    AITABEDELLAH SALEM,

                                Plaintiff-Appellant,
                      v.                                               19-3091

    CITY OF NEW YORK and JOSEPH PONTE,
    Commissioner of the New York City
    Department of Correction, in his individual
    capacity,

                                Defendants-Appellees,

    LEGAL AID SOCIETY, of the City of New York,
    ERIC WILLIAMS, Attorney, Legal Aid Society in his
    official and individual capacity, NEW YORK CITY
    DEPARTMENT OF CORRECTION, (The Department
    or DOC), JOHN DOE NO. 1, Warden, New York City
    Department of Correction, JOHN DOE NO. 2, Assistant
    Warden, New York City Department of Correction, JOHN
    DOE NO. 3, Tour Commander, New York City Department
                                                        1
of Correction, AMKC, Rikers Island, JOHN DOE NO. 4,
Captain, New York City Department of Correction,
AMKC, Rikers Island, in his Individual Capacity,
LAWYER STEPHEN POKART, Attorney for the Legal
Aid Society in his official and individual capacity, JEROME
GRECO, Attorney Legal Aid Society, in his official and
individual capacity,

                  Defendants.
_____________________________________

For Plaintiff-Appellant:                             Welton K. Wisham, Esq., The Law Offices
                                                     of Welton K. Wisham, New York, NY.

For Defendants-Appellees:                            Anna W. Gottlieb, Richard Dearing, Deborah
                                                     A. Brenner, for James E. Johnson,
                                                     Corporation Counsel of the City of New York,
                                                     New York, NY.

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

New York (Koeltl, J.).

       UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, AND

DECREED that the order of the district court is AFFIRMED.

       Aitabedellah Salem (“Salem” or “plaintiff”) appeals a September 5, 2019 order dismissing

his second amended complaint (“SAC”), under Federal Rule of Civil Procedure 12(b)(6), against

the City of New York (“the City”) and the Commissioner of the New York City Department of

Correction (“DOC”), Joseph Ponte (collectively, “defendants”). In his SAC, Salem articulates

four claims: (1) an unreasonable seizure under the Fourth Amendment, for failure to produce him

in civilian clothing for his court appearance on January 21, 2015, and for detaining him from

November 2014 to April 2015 on one dollar bail; (2) a procedural due process claim based on his

allegedly unjustified detention; (3) a violation of substantive due process by the City for holding

pretrial detainees on one dollar bail and the DOC correction officers (“correction officers”) not

informing these inmates of their bail status; and (4) a Monell claim against the City for failure to

                                                 2
train and supervise correction officers which caused Salem’s alleged injuries. See Monell v. Dep’t

of Social Services, 436 U.S. 658 (1978). We assume the parties’ familiarity with the underlying

facts, procedural history, and issues on appeal.

       This Court conducts de novo review of a district court’s dismissal of a complaint under

Federal Rule of Civil Procedure 12(b)(6), construing the complaint liberally, accepting all factual

allegations in the complaint as true, and drawing all reasonable inferences in the plaintiff’s favor.

Chambers v. Time Warner, Inc., 282 F.3d 147, 152 (2d Cir. 2002). To survive a motion to dismiss

under Rule 12(b)(6), the complaint must include “enough facts to state a claim to relief that is

plausible on its face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007).

       1. Factual Background

       On November 21, 2014, Salem was arrested after an incident in which he stole merchandise

from a Manhattan store. Salem was arraigned in criminal court the next day on charges of assault

in the second degree and petit larceny under docket 2014NY088542 (“the 8542 docket”). At the

same time, Salem had two other cases pending before the criminal court, dockets 2014NY088543

(“the 8543 docket”) and 2014NY017648 (“the 7648 docket”). An attorney from Legal Aid

represented Salem at this proceeding. The criminal court set bail at $25,000 on both the 8542

docket and 8543 docket, and sentenced Salem to time served on the third case, docket 7648.

       At the next court appearance on November 26, 2014, regarding his two remaining dockets,

a different Legal Aid attorney represented Salem. The criminal court reduced Salem’s bail on the

8542 docket to one dollar after the court officer noted that Salem “ha[d] a hold,” but left unchanged

the $25,000 bail on docket 8543. Joint App. at 26-27. According to Salem, his attorney did not

inform him of the reduction in bail on the 8542 docket. Two days later, on November 28, 2014,

Salem’s 8543 docket was called. Salem’s appearance was waived without objection by the Legal



                                                   3
Aid attorney who appeared on his behalf. The Assistant District Attorney consented to Salem’s

release on the 8543 docket because a grand jury had not been convened in time. The criminal

court ordered that Salem be released from custody on his own recognizance, but only in connection

with the 8543 docket, which left the one dollar bail in place on Salem’s other case. The court

adjourned the 8543 docket to the same date in February as the 8542 docket.

       Before Salem’s next appearance in his two outstanding cases, Salem’s attorney requested

that dollar bail be set on his other case, the 8543 docket. On January 21, 2015, the criminal court

granted Salem’s attorney’s request and ordered one-dollar bail on the 8543 docket. Salem’s

attorney was present for the hearing and Salem’s appearance was waived without objection.

Although the criminal court had previously ordered that Salem be released on his own

recognizance in the 8543 case, bail was set at one dollar for that case after Salem’s attorney said

it was a mistake to have ordered his release because Salem had an immigration hold. According

to Salem, nobody notified him that he was being held on one-dollar bail in both cases.

       In February 2015, Salem had another bail hearing where his appearance was again waived,

and his pending cases were adjourned until May. Salem remained detained on one-dollar bail for

his two pending cases. During the ensuing months, Salem alleges that he asked correction officers

and wardens “what’s happening with [his] case” and that these correction officers “ignored” him

and “refused” to “acknowledge his concerns.” Joint App. at 183. On April 15, 2015, a person

unknown to Salem paid the one-dollar bail on his two outstanding cases. Plaintiff was released

from incarceration that day. Later in August 2016, Salem was convicted of assault in the second

degree and petit larceny in the 8542 case following a trial. Plaintiff was sentenced to a five-year

term of imprisonment. Salem was credited with the time he spent in pretrial detention from

November 22, 2014, through April 15, 2015, when his bail was paid.



                                                4
       2. Fourth Amendment Claim

       The district court properly dismissed Salem’s Fourth Amendment claim of an unreasonable

seizure. Salem’s Fourth Amendment claim is twofold. First, Salem alleges that he was subject to

an unreasonable seizure because of DOC’s purported failure to produce him in civilian clothing

for his January 2015 hearing. Nowhere in Salem’s complaint does he allege that his lack of civilian

clothing was the reason he was not brought before the criminal court and made aware of his one-

dollar bail status. Though the criminal court previously ordered that Salem be released on his own

recognizance on the 8543 case, his bail was set to one dollar at his attorney’s request because his

attorney believed that Salem had an immigration hold. Still, Salem’s 8542 case provided an

independent justification for his continued detention.         Because Salem failed to allege any

constitutional wrong that resulted in an injury from the failure of DOC to provide him civilian

clothing for his January 2015 hearing or from lawfully detaining him based on his outstanding

bail, his 42 U.S.C. § 1983 claim fails. See Warner v. Orange Cty. Dep’t of Probation, 115 F.3d

1068, 1071 (2d Cir. 1996) (internal quotation marks and alteration omitted) (“The Supreme Court

has made it crystal clear that principles of causation borrowed from tort law are relevant to civil

rights actions brought under section 1983.”).

       Next, Salem alleges that he was unreasonably seized from the date of his arrest to the date

his bail was paid. But this argument too is unavailing. Salem’s pretrial detention was the result

of unpaid bail lawfully ordered by the criminal court on one or more of his outstanding criminal

cases. Furthermore, while pre-trial detention is a seizure, it is reasonable, as is the case here, if it

is supported by probable cause. See Bailey v. United States, 568 U.S. 186, 192 (2013). Salem

cannot sustain his claim of unreasonable seizure for his detention after his arraignment where he

did not allege a lack of probable cause for his arrest or pretrial detention. Notably, Salem was later



                                                   5
convicted of assault and petit larceny in the 8542 case. Because Salem had outstanding court-

ordered bail throughout his lawful pretrial detention, he was properly held in custody in accordance

with New York law. See N.Y. Crim. Proc. Law § 510.40(2) (“If the bail fixed is not posted, or is

not approved after being posted, the court must order that the principal be committed to the custody

of the sheriff.”); see also Ravenscroft v. Casey, 139 F.2d 776, 778 (2d Cir. 1944) (“Whether [a

judge’s] orders were correct or erroneous he had jurisdiction to make them and they provide

immunity to the jail authorities who did nothing other than perform them.”). Thus, Salem cannot

plausibly allege that he was unconstitutionally seized in violation of the Fourth Amendment when

he was detained in accordance with his bail conditions.

       3. Procedural Due Process Claim

       Salem’s allegations also do not plausibly allege a deprivation of procedural due process,

because Salem was represented by counsel at all four of his bail hearings, and it was his counsel’s

responsibility to inform him of the status of his case. Salem’s claim that correction officers should

have notified him of a change in his bail status is not a procedural due process violation.

Procedural due process requires a hearing before the state deliberately deprives an individual of

liberty or property. McClary v. O’Hare, 786 F.2d 83, 86 n.3 (2d Cir. 1986). Salem was afforded

adequate process throughout his case. He does not allege that he was deprived of a hearing. Salem

himself acknowledges that he had four separate hearings before a criminal court judge where his

counsel litigated his bail status in his various cases. Salem’s bail was set in his cases and properly

modified over time. At all times, Salem was under court-ordered detention requiring him to post

bail which he failed to do until April 2015 when he was released. Salem maintains that he was

also entitled to have correction officers inform him about what happened at those bail hearings,

but Salem failed to plausibly allege that his liberty interest should be protected by placing a burden



                                                  6
on correction officers to inform him about the status of his case. The Constitution provides no

such protection for Salem; instead, his counsel is responsible for keeping him apprised of the status

of his criminal cases. Thus, Salem’s procedural due process claim is also unavailing.

       4. Substantive Due Process Claim

       Salem’s substantive due process claim rests on the arguments that it is unlawful for

defendants to hold pretrial detainees in custody on one-dollar bail and that it was unlawful for

defendants not to inform Salem that his bail status had changed. Both these arguments fail.

       Substantive due process “prevents the government from engaging in conduct that shocks

the conscience, or interferes with rights implicit in the concept of ordered liberty.” United States

v. Salerno, 481 U.S. 739, 746 (1987) (internal quotation marks and citations omitted). The

Supreme Court limits substantive due process claims to “deliberate decisions of government

officials to deprive a person of life, liberty, or property.” Daniels v. Williams, 474 U.S. 327, 331

(1986) (emphasis omitted).

       At most, Salem alleges that correction officers failed to inform him of his bail status when

they allegedly “ignored” his questions about “what [was] happening” with his case. Joint App. at

183. Correction officers are tasked with ensuring the safety of correctional facilities and do not

have a duty to inform inmates of legal updates in their cases. It is not conscience-shocking for an

officer to decline to respond to such an inquiry from an inmate or to enforce the criminal court’s

orders of detention. Therefore, despite Salem’s arguments to the contrary, such behavior by

correction officers is not arbitrary, punitive, or conscience-shocking. See Bell v. Wolfish, 441 U.S.

520 (1979). Accordingly, the district court properly dismissed the substantive due process claim.

       5. Monell Claim

       Finally, because Salem has not plausibly pled any underlying constitutional violation that



                                                 7
survives a motion to dismiss, his Monell claim for failure to train correction officers to process

court orders and to inform pretrial detainees of their bail status also necessarily fails. Segal v. City

of New York, 459 F.3d 207, 219 (2d Cir. 2006). Thus, the district court properly dismissed Salem’s

Monell claim.

                                                 ***

       We have reviewed the remainder of Salem’s arguments and conclude that they are without

merit. For the foregoing reasons, the judgment of the district court is AFFIRMED.

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




                                                   8
