Fishman v. City of New Rochelle

Background

Marc H. Fishman proceeded without a lawyer and sued Westchester County, the City of New Rochelle, Lane Schlesinger, Joseph F. Schaller, and Myron W. Joseph. He alleged violations of Section 504 of the Rehabilitation Act of 1973, Title II of the Americans with Disabilities Act, 42 U.S.C. § 1983, and the First, Fourth, and Fourteenth Amendments. He also asserted negligence, false arrest, and malicious prosecution claims.

Fishman alleged that he has multiple physical and mental impairments affecting, among other things, communication, thinking, memory, hearing, walking, and balance. He alleged that he was arrested on December 15, 2018, for second-degree criminal contempt based on an alleged violation of family-court protection orders. After the arrest, he told police that he was disabled and needed an aide for effective communication. He alleged that police left him in a cell for more than an hour before providing an aide and did not allow the aide or another communication assistant to accompany him during questioning.

Westchester County and the City Defendants each moved to dismiss under Federal Rule of Civil Procedure 12(b)(6), which tests whether a complaint alleges enough facts to plausibly support legal relief. The court treated the complaint’s well-pleaded factual allegations as true for purposes of the motions, while not accepting unsupported legal conclusions as facts.

Service of the Individual Defendants

The court held that the individual City Defendants were not properly served. The affidavit of service did not show that copies of the summons and complaint were mailed to them as required under the applicable New York service method. The court also found that the record did not establish that the person who accepted service was authorized by the individual defendants to do so under Federal Rule of Civil Procedure 4.

Because service was defective, the court concluded that it lacked personal jurisdiction over the individual defendants and therefore could not consider the merits of Fishman’s claims against them. Fishman did not show good cause for failing to complete proper service, but the court exercised its discretion to extend the service deadline because he was proceeding without a lawyer and had multiple physical and mental ailments. The court gave him until December 18, 2021, to serve the individual defendants if he wished to continue pursuing claims against them.

Section 1983 Claims

Section 1983 provides a way to seek relief for constitutional violations caused by a person acting under state law; it does not itself create a constitutional right. For claims against a municipality, a plaintiff must plausibly allege that a municipal policy, custom, or practice caused the constitutional violation, rather than merely alleging that the municipality employed the individual who allegedly acted improperly.

The court found that Fishman did not allege that Westchester County or its employees took any relevant action, or that the County had a policy, custom, or practice connected to the alleged violations. The court also found that Fishman did not identify a City policy, custom, or practice that caused the alleged First Amendment retaliation or false arrest. He likewise did not allege that either entity lacked particular training that would have prevented the alleged violations. The court dismissed all Section 1983 claims against Westchester County and the City without prejudice.

Americans with Disabilities Act and Rehabilitation Act Claims

The court stated that the Americans with Disabilities Act and the Rehabilitation Act impose substantially identical requirements for the disability-discrimination claims at issue, although a Rehabilitation Act claim also requires a showing that the defendant receives federal funding. The court assumed for purposes of the motion that the City received federal funding.

The court held that Fishman plausibly alleged a failure-to-accommodate claim against the City. It accepted at this stage that he has disabilities, requested communication assistance, and alleged that the City failed to accommodate him during his arrest and interrogation. The court reasoned that these allegations plausibly suggested that his disabilities made it harder for him to participate in the interrogation and exposed him to greater injury or indignity than other people who were arrested. The failure-to-accommodate claims against the City therefore survived the motion to dismiss.

The court dismissed Fishman’s disability claims against Westchester County without prejudice because the complaint did not plausibly allege that County officials or employees were involved. The court also concluded that the allegations concerning retaliation based on disability or accommodation requests were conclusory and did not plausibly allege a connection between the requests and the alleged adverse actions. The opinion’s conclusion specifically identified the surviving claims as the City-related ADA and Rehabilitation Act failure-to-accommodate claims.

State-Law Claims

Fishman asserted negligence, false arrest, and malicious prosecution claims under state law. New York’s notice-of-claim law generally requires a claimant to serve a notice of claim on a municipal entity within 90 days of the incident and to satisfy additional timing requirements before filing suit.

The court found no allegation in the complaint or opposition papers that Fishman served a notice of claim on Westchester County or the City. It dismissed the state-law claims against both entities without prejudice.

Disposition

The court granted Westchester County’s motion to dismiss in full. It granted the City Defendants’ motion to dismiss in part and denied it in part. The court granted Fishman leave to file an amended complaint addressing claims that had not been dismissed with prejudice, with a filing deadline of November 18, 2021. The order stated that claims dismissed without prejudice would be deemed dismissed with prejudice if Fishman failed to amend on time and could not show good cause. The court also directed the parties to respond according to the deadlines stated in the order and directed the Clerk of Court to terminate the two motions.