18‐1765‐cv
Cipolloni 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 COURTʹS 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
ʺSUMMARY ORDERʺ). A PARTY CITING 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 14th day of December, two thousand eighteen.
PRESENT: ROBERT D. SACK,
BARRINGTON D. PARKER,
DENNY CHIN,
Circuit Judges.
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CARMEN CIPOLLONI,
Plaintiff‐Appellant,
v. 18‐1765‐cv
CITY OF NEW YORK,
Defendant‐Appellee.
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FOR PLAINTIFF‐APPELLANT: STEVEN M. WARSHAWSKY, The
Warshawsky Law Firm, New York,
New York; Tomaz J. Piotrowski, T.J.
Piotrowski Law Firm, Brooklyn, New
York.
FOR DEFENDANT‐APPELLEE: KATHY C. PARK (Devin Slack,
Deborah A. Brenner, on the brief), for
Zachary W. Carter, Corporation
Counsel of the City of New York,
New York, New York.
Appeal from the United States District Court for the Eastern District of
New York (Donnelly, J.).
UPON DUE CONSIDERATION, IT IS HEREBY ORDERED,
ADJUDGED, AND DECREED that the judgment of the district court is AFFIRMED.
Plaintiff‐appellant Carmen Cipolloni was arrested on March 17, 2016 after
the New York Police Department (ʺNYPDʺ) database showed that he had an active
order of protection against him. Cipolloni was released after prosecutors discovered
that the order of protection had been dismissed. Cipolloni brought a 42 U.S.C. § 1983
action against defendant‐appellee City of New York (the ʺCityʺ). On May 21, 2018, the
district court granted the Cityʹs motion to dismiss pursuant to Federal Rule of Civil
Procedure 12(b)(6). Cipolloni filed a timely notice of appeal on June 12, 2018. We
assume the partiesʹ familiarity with the underlying facts, procedural history, and issues
on appeal.
The following facts are drawn from the complaint and presumed to be
true. On March 17, 2016, around 2:00 a.m., Cipolloni went to his girlfriendʹs apartment
in Queens, New York. Cipolloni was standing in a public entryway of the apartment
building and talking to his girlfriend on the phone when police arrived. Cipolloni was
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detained and police ran a background check in the NYPD database. The NYPD
database showed an active order of protection against him.
The order of protection, however, had been dismissed on January 28, 2016,
but the dismissal was not reported in the NYPD database. Both Cipolloni and his
girlfriend, who sought the prior order of protection, informed police that it had been
dismissed. Nevertheless, police arrested Cipolloni and charged him with criminal
contempt. Several hours after he was detained, prosecutors discovered the database
error and the charges against Cipolloni were dropped.
Cipolloni sued the City, asserting a claim under § 1983 because ʺthe City
knows that the design and operation of the NYPD database, which contains erroneous
and out‐of‐date information, results in innocent persons being falsely arrested for
violating expired orders of protectionʺ and the City has failed to prevent these
constitutional violations. App. at 27. In a memorandum decision and order entered
May 21, 2018, the district court dismissed Cipolloniʹs § 1983 claim for failure to state a
claim and declined to exercise pendent jurisdiction over his state law claims. This
appeal followed.
ʺWe review de novo the grant of a Rule 12(b)(6) motion to dismiss for
failure to state a claim, accepting all factual allegations as true and drawing all
reasonable inferences in favor of the plaintiff.ʺ Montero v. City of Yonkers, 890 F.3d 386,
394 (2d Cir. 2018). ʺTo survive a motion to dismiss, a complaint must contain sufficient
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factual matter, accepted as true, to state a claim to relief that is plausible on its face.ʺ
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (internal quotation marks omitted). A claim is
plausible where it allows the court to ʺdraw the reasonable inference that the defendant
is liable for the misconduct alleged.ʺ Id. This requires ʺmore than a sheer possibility
that a defendant has acted unlawfully.ʺ Id. Moreover, pleading facts consistent with a
defendantʹs liability or ʺ[t]hreadbare recitals of the elements of a cause of action,
supported by merely conclusory statements, do not suffice.ʺ Id.
Municipalities may be sued under § 1983. Monell v. Depʹt of Social Servs.,
436 U.S. 658, 690 (1978). To state a claim for municipal liability, a plaintiff must plead
that ʺ(1) an official policy or custom . . . (2) causes the plaintiff to be subjected to (3) a
denial of a constitutional right.ʺ Wray v. City of New York, 490 F.3d 189, 195 (2d Cir.
2007). ʺOfficial municipal policy includes the decisions of a governmentʹs lawmakers,
the acts of its policymaking officials, and practices so persistent and widespread as to
practically have the force of law.ʺ Connick v. Thompson, 563 U.S. 51, 61 (2011).
ʺ[I]solated actsʺ by non‐policymaking municipal employees are not sufficient to
demonstrate a municipal custom or policy. Jones v. Town of E. Haven, 691 F.3d 72, 81 (2d
Cir. 2012) (holding that ʺtwo instances, or at the most three, over a period of several
yearsʺ is insufficient); Green v. City of New York, 465 F.3d 65, 81 (2d Cir. 2006) (holding
that one instance of a violation is insufficient to constitute a practice). A municipal
policy may be inferred, however, from evidence of a supervisory officialʹs deliberate
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indifference to isolated acts. Jones, 691 F.3d at 81. ʺTo establish deliberate indifference a
plaintiff must show that a policymaking official was aware of constitutional injury, or
the risk of constitutional injury, but failed to take appropriate action to prevent or
sanction violations of constitutional rights.ʺ Id. This is a ʺstringent standard of faultʺ
and ʺrequires a showing that the official made a conscious choice[] and was not merely
negligent.ʺ Id.
Cipolloni alleges that the City has a ʺsystemic problemʺ with its database
that results in innocent persons being arrested based on vacated or dismissed orders of
protection. Appellants Br. at 21. Cipolloni has plausibly alleged that the City has a
practice of failing to update the NYPD database to reflect changes to orders of
protection. For example, Cipolloni alleged that the NYPD database ʺcontains no
information about the disposition of the case for which the order of protection was
issued,ʺ and when the NYPD receives information that the order of protection has been
ʺmodified, vacated, or dismissed, this information is not properly and timely entered
into the NYPD database.ʺ App. at 24.
Cipolloni has failed to plausibly allege, however, that the City has a
persistent and widespread practice of arresting individuals based on the NYPD
database errors so as to constitute a municipal policy. Cipolloni argues that ʺavailable
evidence, and common sense, tells us that the problem . . . necessarily affects numerous
people.ʺ Appellantʹs Br. at 23. But his complaint provided no concrete information to
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support the conclusion. His complaint cited only three isolated acts over a more than
20‐year period: his own arrest and two other arrests from 1994 and 2011. App. at 25
(citing Valcarcel v. City of New York, No. 13‐cv‐1740, 2014 WL 4370858 (E.D.N.Y. Sept. 2,
2014), and Welch v. City of New York, No. 95‐cv‐8953, 1997 WL 436382 (S.D.N.Y. Aug. 4,
1997)). Both of these cases, however, resulted in dismissals of the complaints. Valcarcel,
2014 WL 4370858, at *2 (dismissing municipal liability claim); Welch, 1997 WL 436382, at
*4‐5 (finding officer had probable cause to make arrest).
Cipolloni also cited statistics showing that 9.8% of arrests based on
violations of orders of protection from January 2013 to November 2017 were dismissed
prior to arraignment.1 But the reasons for these dismissals were not provided, and the
mere fact that charges were dismissed does not mean the arrests were ʺfalse.ʺ The sheer
possibility that some of these dismissals may be attributable to erroneous NYPD
database entries is insufficient to state a claim. Cipolloni, therefore, has failed to
plausibly plead that the City has a persistent and widespread practice of making arrests
based on NYPD database errors.
Nor has Cipolloni plausibly alleged that the City was deliberately
indifferent to any such false arrests or that the City had ʺactual or constructive
knowledgeʺ of a pattern of false arrests resulting from errors in the NYPD database.
Cipolloni argues that the ʺmagnitude of this problemʺ ‐‐ that is, the purported hundreds
1 These statistics are not in the complaint, but the district court took judicial notice of them.
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of individuals being falsely arrested ‐‐ ʺis sufficiently large and widespread that the City
must have been aware of it.ʺ Appellantʹs Br. at 26‐27. But this conclusory statement is
made without any factual support or particularized allegations, and Cipolloniʹs theory
that because there were errors in the database there must have been hundreds of false
arrests amounts to no more than speculation and an allegation of the ʺsheer possibility
that [the City] has acted unlawfully.ʺ Iqbal, 556 U.S. at 678.
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We have considered Cipolloniʹs remaining arguments and find them to be
without merit. Accordingly, we AFFIRM the judgment of the district court.
FOR THE COURT:
Catherine OʹHagan Wolfe, Clerk
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