United States District Court
For the Southern District of
New York
Chantal Blasetti,
Plaintiff,
-against-
Wayne Pietropolo,
Defendants.
02 Civ. 2792 (LAK)
213 F. Supp. 2d 425
2002 U.S.
Dist. Lexis 14351
August 6, 2002, Decided
August 6, 2002, Filed
[*427]
MEMORANDUM OPINION
Lewis A. Kaplan, United States District
Judge.
Plaintiff and defendant Wayne Pietropaolo, a Hastings-on-Hudson, New
York, police detective, allegedly carried on a consensual sexual relationship.
When plaintiff discovered she was pregnant, she broke it off. She now contends
that Pietropaolo then harassed her and that these alleged actions violated her
federally protected civil rights. She sues Pietropaolo and his employer, the
Village of Hastings-on-Hudson, pursuant to 42 U.S.C. § 1983. The defendants
move to dismiss the amended complaint.
Facts
As cases such as this often receive a good
deal of publicity in the localities in which they arise, it is well to
emphasize that the Court is obliged to assume the truth of the plaintiff's
allegations for purposes of deciding motions to dismiss. In consequence, its
description of the events here cannot properly be taken as a determination of
what actually took place; the facts no doubt are hotly disputed and will remain
to be determined in the event the complaint is legally sufficient.
According to plaintiff, who was married at the time, she told
Pietropaolo in 1997 or early 1998 that she was pregnant and that she no longer
would continue her intimate relationship with him. Pietropaolo then began
harassing plaintiff by, among other things, repeated telephone calls,
confronting her on the streets of Hastings-on-Hudson, making indecent and
sexual suggestions and comments, and asking her for lewd photographs of
herself. Some of this alleged behavior took place while Pietropaolo was on
duty, frequently while driving his official vehicle. According to plaintiff,
"various policy-making Village employees, including the Village Manager,
the Village Clerk, the Town Superintendant [sic], and the Chief Police,"
were aware of Pietropaolo's conduct. n1
The harassment allegedly continued until November 2001, when plaintiff
served Pietropaolo with a state law notice of claim. She contends that it
caused her severe emotional distress, that she was forced to seek psychiatric
treatment, and that it led her to abuse drugs.
The amended complaint contains three claims
for relief. The first is brought under Section 1983 and alleges that
Pietropaolo's behavior deprived plaintiff of her civil rights. It seeks also to
hold the [*428] Village in damages on theories that it was aware of and
indifferent to Pietropaolo's actions and on a failure-to-train theory. It seeks
compensatory and punitive damages against both defendants.
The second and third claims for relief are
pendent state law claims for intentional infliction of emotional distress and
harassment. They seek compensatory and punitive damages against both
defendants, the Village on the theory of respondeat superior.
Discussion
I.
Grounds Common to Both Motions
A. Sufficiency of the State Law Emotional
Distress Claim
Defendants claim that the second claim for
relief, which alleges intentional infliction of emotional distress, is
insufficient as a matter of state law because the alleged conduct was not sufficiently
outrageous.
New York unquestionably "sets a high
threshold for conduct that is [sufficiently] 'extreme and outrageous' . . . to
constitute intentional infliction of emotional distress." n2 Indeed, it
appears that the New York Court of Appeals never yet has upheld such a claim.
n3 And while state courts frequently have dismissed such claims on the
pleadings, the decisions are not uniform. n4 In view of the fairly egregious
conduct alleged in the amended complaint and the Second Circuit's apparent
reluctance to dismiss as a matter of law a claim based on arguably less
outrageous conduct, n5 the prudent course here is to deny the motions to
dismiss to permit the record to be better developed.
B. Sufficiency of the Harassment Claim
The third claim for relief rests on the
same factual allegations as the others but is characterized as one for
"harassment." Defendants argue that there is no such cause of action
under New York law. New York, however, recognizes an implied private right of
action for criminal harassment in violation of the Penal Law. n6
II.
Pietropaolo's Motion
Pietropaolo contends also that the Section
1983 claim is insufficient as a matter of law.
In order to state a claim under Section 1983, the plaintiff must allege
that the defendant acted under color of state law and that the conduct
complained of deprived the plaintiff of rights and privileges secured by the
Constitution or laws of the United States. n7 Defendant Pietropaolo tacitly
acknowledges that the complaint sufficiently alleges at least some conduct by
him under color of state law. He contends, however, that plaintiff's interest
in freedom from the infliction of emotional distress by the alleged campaign of
harassment is not federally protected. Plaintiff rejoins that the
conduct at issue was so devoid of any justification and so [*429] patently
intended to injure that it violated her rights under the substantive component
of the Due Process Clause of the
Fourteenth Amendment.
Prior to the Supreme Court's decision in
County of Sacramento v. Lewis, n8 this Court would have agreed with
Pietropaolo. In Lopez v. City of New York, n9 it held that substantive due
process could not ground a claim under Section 1983 for intentional infliction
of emotional distress. n10 This view, however, is far too categorical in light
of the subsequent decision in County of Sacramento.
That case involved the question
"whether a police officer violates the Fourteenth Amendment's guarantee of
substantive due process by causing death through deliberate or reckless
indifference to life in a high-speed automobile chase aimed at apprehending a
suspected offender." n11 The Supreme Court began its analysis by
acknowledging once again the existence of a substantive component to the Due
Process Clause. n12 Noting its reluctance to expand the concept, n13 it nevertheless
held that governmental abuse of power "that shocks the conscience"
violates the victim's right to due process and passed quickly to the standard
by which such abuses are to be identified. n14 While it held that deliberate or
reckless indifference to life in the context of an otherwise justifiable
automobile chase did not rise to the necessary level, essentially on the ground
that such circumstances inherently do not permit deliberative conduct, it went
on to make clear that an opportunity for deliberation and a lack of a
"substantial countervailing interest" justifying challenged conduct
might yield a different result. n15 The Second Circuit, moreover, subsequently
has made plain that "malicious and sadistic abuses of government power
that are intended only to oppress or to cause injury and serve no legitimate
government purpose unquestionably shock the conscience." n16
There is nothing in the amended complaint
that even remotely might be construed as suggesting any legitimate governmental
purpose for Pietropaolo's alleged actions. The alleged circumstances of his
harassment of the plaintiff suggest or, at least, would permit proof that he
had ample opportunity for deliberation in the sense used by the Supreme Court
in County of Sacramento. The pleading avers that he acted willfully, wantonly
and maliciously, so plaintiff certainly might prove under this complaint that
his was a malicious and sadistic abuse "of government power . . . intended
only to oppress or to cause injury . . . ."
Pietropaolo argues nevertheless that the complaint fails to state a
claim upon which relief may be granted because courts repeatedly have held that
verbal harassment, unaccompanied by any physical impact or harm, does not
implicate Section 1983. And, to be sure, any number of cases stand for that
proposition. n17 All of those relied upon, however, antedate both County
of Sacramento and the Second Circuit's more [*430] recent decision in Johnson.
n18 These make clear that abusive governmental conduct that is sufficiently
egregious and arbitrary, and that is unjustified by countervailing and
legitimate state interests, may implicate the Due Process Clause. While the
Court is entirely mindful of the historical role of the physical impact
requirement in emotional distress cases, it is not now prepared to say, as a
matter of law, that there are no circumstances in which a Section 1983
plaintiff can recovery for emotional injury where that injury was inflicted by
conscience shocking behavior otherwise sufficient to violate the Due Process
Clause.
This is not to say that plaintiff's path to recovery contains is
unobstructed. It is far from clear that all of Pietropolo's alleged conduct
occurred under color of state law. n19 Pietropolo's side of the story
might well cast doubt on the suggestion that his alleged actions, even if they
occurred, were intended solely to injure. The lack of any physical impact or,
it appears, physical injury may well undermine the claim that Pietropaolo's
conduct was so egregious as to shock the conscience. There may be other
difficulties. But a district court may not grant a Rule 12(b)(6) motion unless
it is clear that the plaintiff cannot prove any facts under the operative
complaint that would entitle her to relief. n20 This principle indisputably has
governed Section 1983 cases at least since Leatherman v. Tarrant County
Narcotics Intelligence and Coordination Unit. n21 And Pietropaolo has not
brought himself within it. The Section 1983 claim is sufficient to withstand the
motion to dismiss. n22
II.
The Village's Motion
A. The Monell Claim
The Village, correctly noting that it may
not be held liable on a respondeat superior theory for any Section 1983
violation by Pietropaolo, challenges the legal sufficiency of plaintiff's
allegations under Monell v. New York City Dept. of Social Services. n23
In order to cast a municipality in damages
for a Section 1983 violation by one of its agents, the plaintiff must plead and
prove that the injury complained of was the consequence "of a government's
policy or custom, whether made by its lawmakers or by those whose edicts or
acts may fairly be said to represent official policy . . . . n24 "A policy
or custom may be inferred from acts or omissions of a municipality's supervisory
officials serious enough to amount to gross negligence or deliberate
indifference to the constitutional rights of the plaintiffs" and "can
be based on municipal supervisors' knowing acquiescence in the unconstitutional
behavior of their subordinates. n25 It may be inferred [*431] also "where
a municipality's failure to train amounted to 'deliberate indifference' of the
rights of citizens" - that is, where
"(1)
. . . 'a policymaker [of the municipality] knows "to a moral
certainty" that [its] employees will confront a given situation'; (2) . .
. 'the situation either presents the employee with a difficult choice of the
sort that training or supervision will make less difficult or that there is a
history of employees mishandling the situation'; and (3) . . . 'the wrong
choice by the . . . employee will frequently cause the deprivation of a
citizen's constitutional rights." n26
Plaintiff
relies on both theories.
The amended complaint alleges that the Village Manager, the Village
Clerk, the Town Superintendent n27 and the Chief of Police, among others, were
aware of Pietrolpaolo's conduct, "yet took no steps to address or rectify
said situation." n28 If any of these individuals was a policy making
official, the amended complaint sufficiently alleges the requisite
indifference. And while "the determination of whether a municipal
official wields final policymaking authority regarding a particular action
constitutes a question of state law," n29 the record now before the Court
does not permit such a determination. In consequence, there is no basis for
rejecting the first of plaintiff's theories at this time.
Nor is there any present need to address
the failure-to-train theory. As the both sides appear to recognize, knowledge
of Pietropaolo's alleged activities on the part of policy making Village
officials is indispensable to both Monell theories. n30 Knowledge coupled with
inaction -- the essence of the first of plaintiff's Monell theories -- would
suffice for recovery. In consequence, the failure-to-train theory is
unnecessary and need not be passed upon.
Plaintiff has conceded that she may not
recover punitive damages against the Village on her Section 1983 claim. n31
Conclusion
Defendant Pietropaolo's motion to dismiss the complaint is denied in
all respects. The motion of the Village of Hastings-on-Hudson to dismiss the
complaint [*432] is granted to the extent that plaintiff's claim for punitive
damages against the Village on the first claim for relief is dismissed and
denied in all other respects.
SO ORDERED.
Dated:
August 6, 2002
Lewis A. Kaplan
United States District Judge
1 Am.
Cpt. P 17.
2
Bender v. City of New York, 78 F.3d 787, 790 (2d Cir. 1996).
3 See
Howell v. New York Post Co., Inc., 81 N.Y.2d 115, 122, 596 N.Y.S.2d 350, 353,
612 N.E.2d 699 (1993).
4 See
Bender, 78 F.3d at 790-91.
5 Id.
at 791.
6
Galella v. Onassis, 487 F.2d 986, 994 n.11 (2d Cir. 1973); Daniel v. Safir, 175
F. Supp.2d 474, 481 (E.D.N.Y. 2001); Prignoli v. City of New York, 1996 U.S.
Dist. Lexis 8498, 1996 WL 340001, at *5 (S.D.N.Y. 1996); True v. New York State
Dept. of Corr. Servs., 613 F. Supp. 27, 33 (W.D.N.Y. 1984); Spock v. United
States, 464 F. Supp. 510, 516 (S.D.N.Y. 1978); cf. Long v. Beneficial Fin. Co.,
39 A.D.2d 11, 12-13, 330 N.Y.S.2d 664, 667 (4th Dep't 1972).
7
E.g., Pitchell v. Callan, 13 F.3d 545, 547 (2d Cir. 1994).
8 523
U.S. 833, 140 L. Ed. 2d 1043, 118 S. Ct. 1708 (1998).
9 901
F. Supp. 684 (S.D.N.Y. 1995).
10
Id. at 691.
11
523 U.S. at 836.
12
Id. at 840.
13
Id. at 842.
14
Id. at 846-48.
15
Id. at 848-55 & n.11.
16
Johnson v. Newburgh Enlarged Sch. Dist., 239 F.3d 246, 252 (2d Cir. 2001).
17
E.g., Haussman v. E.S. Fergus, 894 F. Supp. 142, 149 (S.D.N.Y. 1995); Zeno v.
Cropper, 650 F. Supp. 138, 141 (S.D.N.Y. 1986).
18
Note 11, supra.
19 It is debatable, at least,
for example, whether harassing telephone calls made while he was off duty were
actions under color of state law.
20
Conley v. Gibson, 355 U.S. 41, 45-46, 2 L. Ed. 2d 80, 78 S. Ct. 99 (1957).
21
507 U.S. 163, 168, 122 L. Ed. 2d 517, 113 S. Ct. 1160 (1993).
22 In
view of this conclusion, it is unnecessary to address plaintiff's contention
that Pietropaolo's actions violated a constitutionally protected right to
privacy, an argument that rests principally on Galella v. Onassis, 353 F. Supp.
196, 231 (S.D.N.Y. 1972), aff'd in part, rev'd in part, 487 F.2d 986 (2d Cir.
1973).
23 436
U.S. 658, 56 L. Ed. 2d 611, 98 S. Ct. 2018 (1978).
24
Id. at 694.
25
Thomas v. City of New York, 814 F. Supp. 1139, 1151 (E.D.N.Y. 1993); see also,
e.g., Thomas v. Roach, 165 F.3d 137, 144 (2d Cir. 1999); Vann v. City of New
York, 72 F.3d 1040, 1049 (2d Cir. 1995); Zahra v. Town of Southold, 48 F.3d
674, 685 (2d Cir. 1995); Villante v. Dept. of Corr., 786 F.2d 516, 519 (2d Cir.
1986); Krulik v. Board of Educ., 781 F.2d 15, 23 (2d Cir. 1986).
26
Young v. County of Fulton, 160 F.3d 899, 903 (2d Cir. 1998) (quoting Walker v.
City of New York, 974 F.2d 293, 297-98 (2d Cir. 1992)) (alterations in
original).
27
This reference is far from clear. Hastings-on-Hudson is an incorporated village
within the Town of Greenburgh, which is an entirely separate entity. If
plaintiff intends to refer to a Greenburgh official, the reference is
irrelevant because any indifference by such an official would have no bearing
on the liability of the Village. Villages in New York State, on the other hand,
do not have Town superintendents absent village-specific home rule legislation
varying the provisions of Village Law.
28
Am. Cpt. P 17.
29
Brady v. Fort Bend County, 145 F.3d 691, 698 (5th Cir. 1998), cert. denied, 525
U.S. 1105, 142 L. Ed. 2d 774, 119 S. Ct. 873 (1999).
30 Pietropaolo's actions appear
to have been quite unusual, and the Village of Hastings-on-Hudson is quite
small. The complaint does not suggest that behavior such as that alleged here
ever had occurred previously on the Hastings-on-Hudson police force. Nor is
there any basis alleged for concluding that Village officials could have known
that training of its police officers of the need to avoid harassing former
lovers would have made actions such as those alleged less likely. In
consequence, absent proof of knowledge by policy-making officials, the
failure-to-train theory will fail.
31
City of Newport v. Fact Concerts, Inc., 453 U.S. 247, 69 L. Ed. 2d 616, 101 S.
Ct. 2748 (1981).