
    Lisa CLAUDIO, as Administrator of the Estate of Jayson Tirado, deceased, Jaylene Tirado, an infant by her mother and natural guardian, Lisa Claudio, and Irene Tirado, Plaintiffs, v. Sean SAWYER and The City of New York, Defendants.
    No. 08 Civ. 8994(DC).
    United States District Court, S.D. New York.
    Dec. 23, 2009.
    
      Queller, Fisher, Washor, Fuchs & Kool LLP, by Matthew J. Maiorana, Esq., New York, NY, for Plaintiffs.
    Michael A. Cardozo, Esq., Corporation Counsel of the City of New York, by Brian G. Maxey, Esq., Assistant Corporation Counsel, New York, NY, for the City of New York.
   MEMORANDUM DECISION

CHIN, District Judge.

On October 21, 2007, at approximately 5 a.m., Jayson Tirado and two friends were in a car on the FDR Drive in Manhattan. Tirado was driving. An accident in the vicinity of 117th Street caused traffic to be diverted off the drive. As Tirado was exiting on 116th Street, he cut off another vehicle, driven by defendant Sean Sawyer, who, unbeknownst to Tirado and his friends at the time, was an off-duty police officer. Tirado and Sawyer exchanged words, and an encounter ensued. It ended when Sawyer drew a pistol and shot and killed Tirado. Sawyer, who purportedly was intoxicated, left the scene.

In this case, Tirado’s survivors, plaintiffs Lisa Claudio, Jaylene Tirado, and Irene Tirado, sue Sawyer and the City of New York (the “City”) for damages, pursuant to 42 U.S.C. § 1983, alleging that Sawyer and the City violated Tirado’s civil rights under the Fourth and Fourteenth Amendments of the United States Constitution. Plaintiffs also assert claims under New York law.

Plaintiffs contend that: (1) Sawyer acted under color of law when he shot and killed Tirado; (2) the City is liable under Monell v. Department of Social Services, 436 U.S. 658, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978), because Tirado’s death was caused, in part, by the City’s failure to adequately address the problem of off-duty police officers improperly discharging their weapons while under the influence of alcohol; and (3) the City is liable for Sawyer’s actions under New York law for negligence in hiring and employing Sawyer and under the doctrine of respondeat superior.

The City moves to dismiss plaintiffs’ amended complaint pursuant to Federal Rule of Civil Procedure 12(b)(6). The motion is granted. First, the amended complaint fails to sufficiently allege that Sawyer was acting under color of law. Plaintiffs do not allege that Sawyer sought in any way to invoke his authority as a police officer: he was off-duty, he did not display a badge, he did not identify himself as a police office, and he never sought to arrest Tirado. Hence, the altercation was a purely private one. Second, a municipality is liable under Monell only where there is an underlying constitutional violation committed by someone acting under color of law. Here, as the amended complaint fails to allege facts to establish that Sawyer was a state actor, the City cannot be liable under Monell. Third, while it is plausible that plaintiffs may have claims against the City under state law, they must pursue those claims in state court. The amended complaint is dismissed.

BACKGROUND

A. The Facts

For purposes of this motion, the facts alleged in the amended complaint are assumed to be true.

On October 21, 2007, Tirado was shot and killed by Sawyer, an off-duty police officer, in the vicinity of First Avenue and 117th Street in Manhattan. (Am. Compl. ¶ 22). Prior to the shooting, Sawyer had consumed alcohol and was under the influence of alcohol. (Id. ¶¶ 29-30). At the time of the incident, Tirado was driving a Honda Civic with two passengers, Jason Batista and Anthony Mencia. (Id. ¶ 24). Sawyer was driving a Nissan Xterra. (Id. ¶ 25). Tirado and his two passengers were unarmed. (Id. ¶¶ 31-33). Sawyer fired a number of shots from his dock 9mm pistol at Tirado. (Id. ¶ 26). One bullet struck Tirado in the back, killing him. (Id. ¶ 28, 34). Sawyer left the scene without reporting to the police that he had fired his weapon. (Id. ¶ 37).

Approximately 19 hours later, about 1:00 a.m. on October 22, 2007, Sawyer approached a police car, complained of chest pain, and requested an ambulance. (Id. ¶ 38). Sawyer informed the sergeant and officer in the police car that he might have been involved in a fatal shooting the night before. (Id. ¶ 38). Sawyer was not arrested, but the matter was later presented to a grand jury. (Id. ¶ 39). On July 10, 2008, a grand jury declined to indict Sawyer. (Id).

At all relevant times, the City had a “custom” of encouraging its police officers, including Sawyer, to carry and use firearms while off-duty. (Id. ¶¶ 55, 58). In fact, the use of firearms by off-duty officers was quite common. “With the Police Department reporting 227 off-duty shooting incidents and 1037 total shooting incidents, over a seven-year period, there was an off-duty shooting roughly every 11 days.” (Id. ¶ 59). In addition, the City was well aware that police officers regularly “consumed alcohol” while armed off-duty, even though the City’s written rules officially prohibited the practice. (Id. ¶¶ 68-71). Though the City provided training for the handling and use of firearms, the training “did not ensure that police officers, including Office Sawyer, [could] effectively use their firearm in real-life situations.” (Id. ¶¶ 49-50). The City was aware that this training was not sufficient, and that a great percentage of shooting incidents involve unarmed civilians. (Id. ¶¶ 51, 53). “[I]n 77% of the incidents where police officers fired their weapons at civilians between 1999 and 2006, the officers were the only ones shooting, with officers often shooting at unarmed civilians.” (Id. ¶ 53).

B. Procedural History

Plaintiffs commenced this action on October 22, 2008. On March 3, 2009, the City requested leave to file a motion to dismiss. I conducted a pre-motion conference at which the City’s proposed motion was discussed, and I granted plaintiffs leave to amend their complaint to take into account the issues raised by the City. Plaintiffs filed an amended complaint on March 17, 2009. This motion followed.

DISCUSSION

I. 12(b)(6) Motion to Dismiss Standard

To survive a motion to dismiss pursuant to Rule 12(b)(6), “a complaint must contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’ ” Ashcroft v. Iqbal, — U.S. -, 129 S.Ct. 1937, 1949, 173 L.Ed.2d 868 (2009) (citing Bell Atl. v. Twombly, 550 U.S. 544, 570, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007)). The Supreme Court in Iqbal set out a “two-pronged” approach for courts considering a motion to dismiss. Id at 1950.

First, the court accepts plaintiffs factual allegations as true and draws all reasonable inferences in his favor. See id. The court considers only the factual allegations in the complaint and “any documents that are either incorporated into the complaint by reference or attached to the complaint as exhibits.” Blue Tree Hotels Inv. (Can.), Ltd. v. Starwood Hotels & Resorts Worldwide, Inc., 369 F.3d 212, 217 (2d Cir.2004). Legal conclusions must be supported by factual allegations. Iqbal, 129 S.Ct. at 1949. Pleadings that are “no more than conclusions are not entitled to the assumption of truth.” Id. at 1950.

Second, the court determines whether the “well-pleaded factual allegations ... plausibly give rise to an entitlement to relief.” Id. “A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Id. at 1949 (citing Twombly, 550 U.S. at 556, 127 S.Ct. 1955). “The plausibility standard is not akin to a ‘probability requirement,’ but it asks for more than a sheer possibility that a defendant has acted unlawfully.” Id. (citing Twombly, 550 U.S. at 556, 127 S.Ct. 1955). Determining plausibility is a “context-specific task that requires the reviewing court to draw on its judicial experience and common sense.” Id. at 1950.

Generally, to withstand a motion to dismiss, a § 1983 complaint must set forth specific factual allegations indicating a deprivation of constitutional rights. See Alfaro Motors, Inc. v. Ward, 814 F.2d 883, 887 (2d Cir.1987) (“[BJroad, simple, and conclusory statements are insufficient to state a claim under § 1983.”); Martin v. N.Y. State Dep’t of Mental Hygiene, 588 F.2d 371, 372 (2d Cir.1978).

II. Federal Claims

A. Applicable Law

1. Color of Law

Section 1983 creates a civil cause of action against a party “who, under color of any statute, ordinance, regulation, custom, or usage, of any State ... subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws.” 42 U.S.C. § 1983. There are two essential elements of a § 1983 claim: “(1) the conduct complained of must have been committed by a person acting under color of state law; and (2) the conduct complained of must have deprived a person of rights, privileges, or immunities secured by the Constitution or laws of the United States.” Pitchell v. Callan, 13 F.3d 545, 547 (2d Cir.1994) (citing Parrott v. Taylor, 451 U.S. 527, 535, 101 S.Ct. 1908, 68 L.Ed.2d 420 (1981)).

In the context of off-duty police officers, “[cjourts have had frequent occasion to interpret the term ‘color of law’ for the purposes of section 1983 actions, and it is by now axiomatic that under ‘color’ of law means under ‘pretense’ of law and that ‘acts of officers in the ambit of their personal pursuits are plainly excluded.’ ” Pitchell, 13 F.3d at 548. (citing Screws v. United States, 325 U.S. 91, 111, 65 S.Ct. 1031, 89 L.Ed. 1495 (1945)). “[T]here is no bright line test for distinguishing ‘personal pursuits’ from activities taken under color of law” and the relevant question in deciding color of law is not whether the officer “was on or off duty when the challenged incident occurred,” but whether the officer “albeit off-duty, nonetheless invokes the real or apparent power of the police department” or “perform[s] duties prescribed generally for police officers.” Id. (citations omitted).

The court is to look at the “totality of the circumstances surrounding the officer’s acts, with attention to the nature of the officer’s acts (rather than simply the officer’s duty status) and the relationship of that conduct to the officer’s official duties.” Lizardo v. Denny’s, Inc., No. 97 Civ. 1234(FJS), 2000 WL 976808, at *9 (N.D.N.Y. July 13, 2000) (citing Pitchell, 13 F.3d at 548). Factors to be considered when determining whether an off-duty police officer acted under color of law include “whether defendants identified themselves as police officers at any time during the incident; if plaintiff was aware that the defendants were police officers; whether defendants detained or questioned the plaintiff in the line of duty or scope of employment as police officers; if defendants drew a firearm or arrested the plaintiff; whether defendants were engaged in any investigation or any aspect of the traditional public safety functions of police work.” Wahhab v. City of New York, 386 F.Supp.2d 277, 288 (S.D.N.Y.2005) (citing Manning v. Jones, 696 F.Supp. 1231, 1235 (S.D.Ind.1988)).

An officer can also purport to exercise official authority by intervening in a dispute pursuant to a duty imposed by department regulations. See Barna v. City of Perth Amboy, 42 F.3d 809, 816 (3d Cir.1994); Stengel v. Belcher, 522 F.2d 438, 440-41 (6th Cir.1975). Even if the altercation was private in nature, an off-duty police officer will be considered to be acting under color of law if the officer responded by invoking his or her authority. See Rivera v. La Porte, 896 F.2d 691, 696 (2d Cir.1990) (holding that an off-duty corrections officer acted under color of law when he arrested and assaulted the plaintiff following a private argument during a traffic jam).

2. Monell Liability

Under Monell v. Dep’t of Soc. Servs., 436 U.S. 658, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978), a municipality is subject to liability for damages under § 1983 when an official municipal policy or custom contributes to a constitutional deprivation. “[W]hen execution of a government’s policy or custom ... inflicts [an] injury ... the government as an entity is responsible under § 1983.” Monell, 436 U.S. at 694, 98 S.Ct. 2018. The failure to train or supervise a municipal employee may be “properly thought of as a city ‘policy or custom’ that is actionable under § 1983.” City of Canton, Ohio v. Harris, 489 U.S. 378, 389, 109 S.Ct. 1197, 103 L.Ed.2d 412 (1989).

Under Second Circuit case law, however, a prerequisite to municipal liability under Monell is an underlying constitutional violation by a state actor. “Monell does not provide a separate cause of action for the failure by the government to train its employees; it extends liability to a municipal organization where that organization’s failure to train, or the policies or customs that it has sanctioned, led to an independent constitutional violation.” Segal v. City of New York, 459 F.3d 207, 219 (2d Cir.2006) (emphasis in original). Once a “district court properly [finds] no underlying constitutional violation, its decision not to address the municipal defendant’s liability under Monell [i]s entirely correct.” Id.

B. Application

1. Color of Law

Despite the opportunity to address the deficiencies in their original complaint, plaintiffs have failed to plead facts in their amended complaint sufficient to support their allegation that Sawyer acted under color of law.

First, the amended complaint does not allege that Sawyer was on-duty or actually acting in his capacity as a police officer. Plaintiffs specifically allege that Sawyer was off-duty and driving a Nissan Xterra — not identified as a police vehicle— when the incident with Tirado occurred. (Am. Compl. ¶¶22, 25). They do not allege that Sawyer was on official police business or that the shooting occurred as a result of official police concerns.

Second, although an off-duty police officer who claims to exercise official authority will be found to have acted under color of law, see Jocks v. Tavernier, 316 F.3d 128, 134 (2d Cir.2003) (“We have no doubt that when an officer identifies himself as a police officer and uses his service pistol, he acts under color of law.”), here, the amended complaint does not allege that Sawyer purported to act with state authority when he confronted and then shot Tirado. The amended complaint does not allege that Sawyer identified himself as a police officer, either by flashing his badge or by announcing to Tirado or the other two passengers any time before, during, or after the shooting that he was a police officer or acting in that capacity. There is no indication that Tirado or his friends were aware that Sawyer was a police officer from his or his car’s appearance, as there is no allegation that Sawyer was in uniform or that his car was a police vehicle. Unlike in Lizardo, where the court found that an off-duty officer working for a Denny’s restaurant acted under color of law when he threatened to arrest the plaintiffs, there is no allegation in the amended complaint that Sawyer attempted to arrest Tirado. Lizardo, 2000 WL 976808, at *9.

An off-duty police officer effectuating a traffic stop is also considered to be acting under the color of law. See Davis v. Lynbrook Police Dep’t, 224 F.Supp.2d 463, 475-76 (E.D.N.Y.2002) (holding that a plainclothed and intoxicated off-duty police officer on disability leave acted under color of law when he menaced the plaintiff into stopping car and showed his badge and identified himself as a police officer). Unlike the defendant in Davis, there is no indication that Sawyer issued any commands, showed his badge, or tried to effect a traffic stop.

Plaintiffs allege that the City “at all relevant times, permitted, encouraged and expected Officer Sawyer to carry and use a firearm when off-duty.” (Am. Compl. ¶ 54). Even accepting this allegation as true, and even assuming that Sawyer used his department-issued weapon in the shooting, courts require more to conclude that an officer was acting under color of law. See Bonsignore v. City of New York, 683 F.2d 635 (2d Cir.1982) (holding that an officer who shot his wife and then committed suicide with his police handgun did not act under color of law even though the officer was required to carry the police gun at all times). The mere use of a department-issued weapon is not sufficient to hold that an off-duty officer was acting under color of law without more indicia of authority. See Bama, 42 F.3d at 819 (“To hold otherwise would create a federal cause of action out of any unauthorized use of a police-issue weapon, without regard to whether there are any additional circumstances to indicate that the officer was exercising actual or purported police authority.”).

Without such factual content, plaintiffs’ amended complaint lacks the facial plausibility required to survive a motion to dismiss. Accordingly, I conclude that the amended complaint fails to state a claim that Sawyer was acting under color of law.

2. Monell Liability

In their opposition memorandum, plaintiffs argue that even if Sawyer was not acting under color of law, the City was “undeniably a state actor” when it promulgated customs and policies that led to Tirado’s death. (PI. Oppo. Mem. at 9). Plaintiffs allege that the City failed to properly train and supervise Sawyer, and that it encouraged its officers to carry guns off-duty, even while drinking alcohol.

Despite the tragic facts alleged in the complaint, Second Circuit case law holds that where an off-duty officer did not act under color of law, the injury inflicted on the victim is one of private violence. See Pitchell, 13 F.3d at 549. Without a state actor, there can be no “independent constitutional violation.” If there is no “independent constitutional violation,” a Monell claim against the City will necessarily fail. Segal, 459 F.3d at 219; see also Pitchell, 13 F.3d at 549. That is the case here. Because Sawyer did not act under color of law, there was no independent constitutional violation, and the shooting death of Tirado was an act of private violence. The City is not liable under Monell for the private acts of its employees.

Plaintiffs may have a plausible claim against the City on a negligence theory. Indeed, if plaintiffs’ allegations are correct, off-duty shootings by police officers who abuse alcohol occur far too often, and, judging from the number of decisions that appear in the ease law with similar fact patterns, it may be that the City has not done enough in terms of training and supervision to address the problem. But purely private action will not support a Monell claim under § 1983, and a claim against the City such as the one asserted here — based purely on private action by an off-duty police officer, without an underlying, independent constitutional claim— would have to be asserted as a state claim under state law. See, e.g., Bonsignore v. City of New York, 683 F.2d 635 (2d Cir. 1982) (holding that police officer who seriously wounded his wife and then committed suicide with his police handgun was not acting under color of law for purposes of § 1983 but upholding jury verdict that the City was liable in negligence).

II. State Law Claims

“The district courts may decline to exercise supplemental jurisdiction over a claim ... if ... the district court has dismissed all claims over which it has original jurisdiction.” 28 U.S.C. § 1367(c)(3). With the dismissal of plaintiffs' federal § 1983 claims, there remains no independent jurisdictional basis for their state law claims. See Carnegie-Mellon Univ. v. Cohill, 484 U.S. 343, 350 n. 7, 108 S.Ct. 614, 98 L.Ed.2d 720 (1988) (“in the usual case in which all federal-law claims are eliminated before trial, the balance of factors to be considered under the pendent jurisdiction doctrine' — judicial economy, convenience, fairness, and comity — will point toward declining to exercise jurisdiction over the remaining state-law claims”). In addition, where the federal claims are dismissed at an early stage in the litigation, the Second Circuit has generally held that it is inappropriate for the district court to exercise supplemental jurisdiction. See, e.g., Giordano v. City of New York, 274 F.3d 740, 754 (2d Cir.2001); Seabrook v. Jacobson, 153 F.3d 70, 72 (2d Cir.1998); Castellano v. Bd. of Trs. of Police Officers’ Variable Supplements Fund, 937 F.2d 752, 758 (2d Cir.1991). Accordingly, I decline to exercise supplemental jurisdiction over plaintiffs’ state law claims against the City and dismiss them as well.

CONCLUSION

For the foregoing reasons, the City’s motion to dismiss is granted. Although Sawyer has not appeared in the action, for the reasons set forth above, plaintiffs have not sufficiently alleged a federal claim as to him either. Accordingly, the federal claims against both defendants are dismissed with prejudice. The state law claims are dismissed without prejudice to refiling in state court. The Clerk of Court shall enter judgment accordingly and close the case.

SO ORDERED. 
      
      . The amended complaint does assert, in conclusoiy manner, that Sawyer was acting within the scope of and in furtherance of his employment with the City. (Am. Compl. ¶¶ 44, 45). Plaintiffs fail, however, to plead sufficient factual content to allow the Court to draw the inference that Sawyer was acting under color of law.
     