Fishman v. City of New Rochelle

Background

Marc H. Fishman sued Westchester County, the City of New Rochelle, and several New Rochelle police officials. He alleged violations of the Americans with Disabilities Act, Section 504 of the Rehabilitation Act, and 42 U.S.C. § 1983, the federal law that allows lawsuits for constitutional violations by state officials. The alleged constitutional violations involved the First, Fourth, and Fourteenth Amendments, as well as claims concerning arrest, imprisonment, trial proceedings, prosecution, retaliation, supervision, municipal responsibility, failure to intervene, and conspiracy.

Fishman alleged that he has cognitive and hearing disabilities, including a traumatic brain injury, and that officials refused requested communication accommodations during a 2017 Family Court proceeding and during police questioning on December 15, 2018. He also alleged that police arrested and charged him with second-degree criminal contempt after an incident involving an order of protection and supervised visitation. A jury later found him guilty of completed and attempted second-degree criminal contempt. The opinion states that he had not been sentenced and had not successfully appealed or overturned that result.

The defendants moved to dismiss the amended complaint under Rule 12(b)(6), which tests whether a complaint contains enough factual allegations to plausibly support a legal claim. Fishman also asked for more time to serve Police Officer Lane Schlesinger and Police Sergeant Myron Joseph.

Service of process

The court granted Fishman’s motion for additional time to serve Schlesinger and Joseph. Although service was late, the City Defendants acknowledged that the officers had been served, counsel had appeared for all City Defendants, and the court found no prejudice from extending the deadline.

Section 1983 claims

The court dismissed all of Fishman’s Section 1983 claims against all defendants.

For false arrest and unlawful imprisonment, the court held that Fishman’s jury conviction established probable cause for the confinement unless the conviction was reversed on appeal. The court rejected Fishman’s argument that he was not yet “convicted” because he had not been sentenced. It dismissed the false-arrest claim without prejudice.

The court also dismissed without prejudice Fishman’s fair-trial claim based on allegedly fabricated evidence. Because the criminal case had resulted in a conviction that had not been overturned or dismissed, the court concluded that the civil claim could improperly challenge the ongoing criminal matter or conviction.

The court dismissed without prejudice the Section 1983 malicious-prosecution claim because the criminal case had not ended without a conviction. It dismissed the First Amendment retaliation, federal civil-rights, and Section 1983 conspiracy claims because Fishman did not meaningfully address the defendants’ arguments concerning those claims in his opposition papers, treating them as abandoned.

The court dismissed without prejudice the failure-to-intervene claim because that claim depended on an underlying constitutional violation. It also dismissed the supervisory-liability claim after dismissing the underlying constitutional claims. The court stated that the amended complaint also lacked specific allegations showing personal involvement by certain supervisors.

The court dismissed Fishman’s municipal-liability claims against Westchester County and the City of New Rochelle. Municipal liability requires allegations that a municipal policy or custom directly caused the constitutional violation. The court found that Fishman did not adequately allege such a policy or custom. It also found that he abandoned the claim against Westchester County by failing to address the County’s arguments and that his allegations against the City lacked sufficient detail about training, notice, or disability-accommodation policies.

The opinion’s footnote states that the Section 1983 dismissals were without prejudice if Fishman had a pending appeal, or filed an appeal, in the criminal case. If no appeal was pending or would be filed, the claims could not be reasserted.

Americans with Disabilities Act and Rehabilitation Act claims

The court did not disturb its earlier determination that Fishman could proceed against the City of New Rochelle on claims under the Americans with Disabilities Act and Rehabilitation Act based on an alleged failure to provide reasonable accommodations. The City Defendants’ motion did not address those claims, so the court denied the City’s motion to dismiss them. Those claims remained in the case, and the City was ordered to file an answer by March 3, 2023.

The court dismissed without prejudice Fishman’s disability-discrimination claims against Westchester County. Fishman alleged that County prosecutors provided discovery in an inaccessible format, but the court found that he did not adequately allege that the County denied an accommodation because of his disability or that County policies showed deliberate indifference to accommodation needs. The court also stated that any disability-retaliation claim against the County appeared no longer to be alleged or supported.

Disposition

The court granted Westchester County’s motion to dismiss and granted the City Defendants’ motion to dismiss, while separately denying the City’s motion as to the City’s unresolved disability-accommodation claims. The court granted Fishman’s motion for an extension of time to serve process. It dismissed Westchester County and the individual defendants—Lane Schlesinger, Joseph Schaller, Robert Gazzola, and Myron Joseph—from the case. The City of New Rochelle remained as a defendant on the disability-accommodation claims.