Price v. City of N.Y.
46
15 Civ. 5871 (KPF) (S.D.N.Y. Jun. 25, 2018)
claim, a plaintiff must plead facts giving rise to a
plausible inference that (i) the municipality knows
"to a moral certainty" that its employees will
confront a given situation, (ii) either the situation
presents the employees with a difficult choice of
the sort that training will make less difficult, or
there is a history of employees mishandling the
situation, and (iii) the wrong choice by the
employee will frequently cause a constitutional
deprivation. Walker v. City of New York, 974 F.2d
293, 297-98 (2d Cir. 1992).
and this Opinion, place the City on notice of the
need to train its employees that viewpoint
discrimination is unlawful in forums governed by
the Free Speech Clause, including the City's
official Twitter accounts. Indeed, the Court hopes
that it does. But that does not mean that the City's
alleged failure to train — when it had no reason to
believe "to a moral certainty" that its failure would
result in constitutional violations, see Walker, 974
F.2d at 297 — caused the violation of Plaintiff's
First Amendment rights.
Plaintiff alleges that "[t]he City's failure to train
employees on the proper use of social media
carries a high risk that deleting comments or
blocking users will cause violations of those users'
First Amendment rights." (FAC ¶ 140). This
allegation, without more, does not "nudge[ ]
[Plaintiff's] claims across the line from
conceivable to plausible," Twombly, 550 U.S. at
570, and fails to meet the "rigorous standard of
culpability and causation" required to plead
municipal liability based upon alleged municipal
inaction, Matusick, 757 F.3d at 73; see also Iqbal,
556 U.S. at 678 ("A pleading that offers 'labels
and conclusions' or 'a formulaic recitation of the
elements of a cause of action will not do.' Nor
does a complaint suffice if it tenders 'naked
assertion[s]'
devoid
of
'further
factual
enhancement.'" (quoting Twombly, 550 U.S. at
555, 557)). Plaintiff's bare allegation therefore
does not state a claim of deliberate indifference by
the City.
Finally, although the FAC is not entirely clear, it
can be read to suggest that the City should be
liable because its employees failed to correct the
problem — that is, unblock Plaintiff on Twitter —
after Plaintiff made them aware of what had
happened. Plaintiff specifically alleges that she
lodged complaints with 311, Pierre-Louis, and
NYPD Commissioner James O'Neill. (See FAC ¶¶
141-49). By making these allegations, Plaintiff
may be attempting to argue that the City of New
York itself undertook the alleged conduct pursuant
to a policymaker's adoption or ratification of his
subordinates' conduct. See Pembauer, 475 U.S. at
481 ("[M]unicipal liability may be imposed for a
single decision by municipal policymakers ...
where the decisionmaker possesses final authority
to establish municipal policy with respect to the
action."); Amnesty Am. v. Town of W. Hartford,
361 F.3d 113, 126 (2d Cir. *47 2006) (recognizing
that a superior's awareness of subordinate's
unconstitutional conduct imposes municipal
liability under Monell based on ratification or
deliberate indifference).
Even when the Court liberally construes the
operative pleading, there is no suggestion that
before Brooks, Obe, and Pierre-Louis blocked
Plaintiff from the Twitter accounts at issue, the
City knew of "[a] pattern of similar *46
constitutional violations by untrained employees."
Connick, 563 U.S. at 62. A municipality cannot
act with deliberate indifference if it had no reason
to believe its employees would engage in the
unconstitutional conduct at issue. See DeCarlo v.
Fry, 141 F.3d 56, 61 (2d Cir. 1998); Walker, 974
F.2d at 297-98. It may well be that this lawsuit,
47
It is true that Commissioner O'Neill is a
"policymaker" for Monell purposes, such that his
decisions can bind the City of New York. See N.Y.
City Charter § 434; Domenech v. City of New
York, 919 F. Supp. 702, 710 & n.1 (S.D.N.Y.
1996). But Plaintiff's bare allegation that she
"complained orally to NYPD Commissioner
James O'Neill about being blocked on Twitter" is
insufficient to show that O'Neill knew that his
subordinates blocked Plaintiff for unconstitutional
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