D.S. v. City of Peekskill , 581 F. App'x 65 ( 2014 )

14-864
D.S. v. City of Peekskill
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.
1 At a stated term of the United States Court of Appeals
2 for the Second Circuit, held at the Thurgood Marshall United
3 States Courthouse, 40 Foley Square, in the City of New York,
4 on the 22nd day of October, two thousand fourteen.
5
6 PRESENT: DENNIS JACOBS,
7 ROBERT D. SACK,
8 CHRISTOPHER F. DRONEY,
9 Circuit Judges.
10
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12 D.S.,
13 Plaintiff-Appellant,
14
15 -v.- 14-864
16
17 City of Peekskill and Westchester
18 County,
19 Defendants-Appellees.
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21
22 FOR APPELLANT: Steven M. Warshawsky, The
23 Warshawsky Law Firm, New York,
24 New York.
25
26 FOR APPELLEES: Kyle C. McGovern, Desmond C.B.
27 Lyons, Diane B. Cavanaugh, Lyons
28 McGovern, LLP, White Plains, New
1
1 York, for defendant-appellee
2 Westchester County.
3
4 Lalit K. Loomba, Peter A.
5 Meisels, John M. Flannery,
6 Wilson, Elser, Moskowitz,
7 Edelman & Dicker LLP, White
8 Plains, New York, for defendant-
9 appellee the City of Peekskill.
10
11 Appeal from a judgment of the United States District
12 Court for the Southern District of New York (Karas, J.).
13
14 UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED
15 AND DECREED that the judgment of the district court be
16 AFFIRMED.
17
18 Plaintiff-appellant D.S. appeals from the judgment of
19 the United States District Court for the Southern District
20 of New York (Karas, J.), granting motions by the City of
21 Peekskill and Westchester County (“defendants”) to dismiss
22 under Federal Rule of Civil Procedure 12(b)(6). We assume
23 the parties’ familiarity with the underlying facts, the
24 procedural history, and the issues presented for review.
25
26 D.S. brings a procedural due process claim under 42
27 U.S.C. § 1983, alleging that defendants disclosed his sealed
28 criminal records in violation of New York Criminal Procedure
29 Law § 160.50. D.S. argues that Section 160.50 creates a
30 liberty interest in the confidentiality of sealed criminal
31 records, and that defendants’ (undisputed) violation of
32 Section 160.50 deprived him of liberty without due process
33 of law.
34
35 Defendants argue, and the district court held, that
36 Section 160.50 does not create a liberty interest that gives
37 rise to a federal constitutional claim. Defendants also
38 argue that D.S. fails to state a claim for two simpler
39 reasons: (1) he has not plausibly alleged any intentional
40 deprivation of his constitutional rights, and (2) he has not
41 alleged a basis for municipal liability. We affirm on the
42 ground that D.S. has not plausibly pleaded that his injury
43 was inflicted intentionally.
44
2
1 We review de novo a district court’s grant of a motion
2 to dismiss for failure to state a claim, accepting all
3 factual allegations as true and drawing all reasonable
4 inferences in favor of the plaintiff. Lotes Co., Ltd. v.
5 Hon Hai Precision Indus. Co., 753 F.3d 395, 403 (2d Cir.
6 2014). “To survive a motion to dismiss, a complaint must
7 contain sufficient factual matter, accepted as true, to
8 ‘state a claim for relief that is plausible on its face.’”
9 Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell
10 Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)).
11
12 “[T]he Due Process Clause is simply not implicated by a
13 negligent act of an official causing unintended loss of or
14 injury to life, liberty, or property.” Daniels v. Williams,
15 474 U.S. 327, 328 (1986) (emphasis omitted); see also
16 Shannon v. Jacobowitz, 394 F.3d 90, 94 (2d Cir. 2005) (“[I]n
17 Daniels[, the U.S. Supreme Court] clearly articulated that a
18 finding of intentional conduct was a prerequisite for a due
19 process claim.”). So to survive a motion to dismiss, D.S.
20 must plausibly allege that defendants violated his
21 constitutional rights intentionally--not just negligently.
22
23 He has not done so. The only allegations in the
24 complaint are either insufficient to demonstrate intent
25 (even if accepted as true), or are conclusory allegations
26 not entitled to the presumption of truth.
27
28 For example, D.S. alleges that, “[u]pon information and
29 belief,” the Peekskill chief of police “personally and/or by
30 and through his attorney James A. Mitchell, . . .
31 authorized, approved, and/or acquiesced in the disclosure of
32 D.S.’s sealed police file.” Compl. ¶ 26. But a government
33 official approving the disclosure of a sealed file--
34 presumably relying on his attorney to handle the document
35 production--is not the same thing as a government official
36 approving the disclosure of a file he knows to be sealed.
37 D.S.’s allegation might support an inference of negligence;
38 it does not plausibly allege intent.
39
40 D.S. also alleges that “[t]he government defendants
41 acted with intentional, knowing, callous, and/or reckless
42 indifference to the plaintiff’s constitutional rights,”
43 Compl. ¶ 51, and that “[a]t all relevant times, one or more
44 county officials with final policy-making authority had
3
1 knowledge of and authorized, approved, and/or acquiesced in
2 the unconstitutional conduct alleged in this case,” Compl.
3 ¶ 5. But conclusory allegations like these are not entitled
4 to the presumption of truth. Iqbal, 556 U.S. at 681.
5
6 The pleading does not plausibly allege that defendants
7 would know that their document production in the Deskovic
8 litigation included twenty-year-old files sealed pursuant to
9 Section 160.50. And, critically, D.S. makes no allegation
10 to the contrary; that is, D.S. does not allege that any
11 government official was aware (or should have been aware)
12 that their document production included sealed files.
13 Similarly, he does not allege that any government official
14 intended to disclose sealed files.
15
16 D.S. quotes Hudson v. New York City, 271 F.3d 62, 68
17 (2d Cir. 2001), for the proposition that “Section 1983 does
18 not require any intent to violate constitutional rights.”
19 True enough. But, although Section 1983 has no intent
20 requirement, a Section 1983 plaintiff must still allege an
21 underlying constitutional violation. And some
22 constitutional violations--like a violation of the Due
23 Process Clause--do require intent. See, e.g., Gold v.
24 Feinberg, 101 F.3d 796, 800 (2d Cir. 1996) (“[M]ore than
25 negligent conduct by the state actor is needed in order for
26 a cognizable § 1983 claim to exist based on violations of
27 the due process clause.”); see also Hudson, 271 F.3d at 68
28 (Ҥ 1983 plaintiffs need only demonstrate intent where the
29 underlying constitutional deprivation . . . calls for it.”).
30
31 In the end, D.S. has “not nudged [this] claim[] across
32 the line from conceivable to plausible.” Twombly, 550 U.S.
33 at 570. Although the district court did not address the
34 question of intent, “[w]e may, of course, affirm on any
35 basis for which there is a record sufficient to permit
36 conclusions of law, including grounds upon which the
37 district court did not rely.” Cromwell Assocs. v. Oliver
38 Cromwell Owners, Inc., 941 F.2d 107, 111 (2d Cir. 1991)
39 (citations omitted). We do so here.1
40
1
We do not decide whether Section 160.50 creates a
liberty interest protected by the Due Process Clause, or
whether D.S. has alleged a basis for municipal liability.
4
1 For the foregoing reasons, we hereby AFFIRM the
2 judgment of the district court.
3
4 FOR THE COURT:
5 CATHERINE O’HAGAN WOLFE, CLERK
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