Ismail v. Cohen

• Decision Date: 07 February 1989
• Docket Number: No. 85 Civ. 0121 (PKL).,85 Civ. 0121 (PKL).
• Citation: 706 F. Supp. 243
• Parties: Labib ISMAIL, Plaintiff, v. Scott COHEN, individually and as a New York City police officer, and City of New York, a Municipal Corporation, Defendants.
• Court: U.S. District Court — Southern District of New York

706 F. Supp. 243

Labib ISMAIL, Plaintiff, v. Scott COHEN, individually and as a New York City police officer, and City of New York, a Municipal Corporation, Defendants.

No. 85 Civ. 0121 (PKL).

United States District Court, S.D. New York.

February 7, 1989.

COPYRIGHT MATERIAL OMITTED

Robert L. Herbst, New York City, for plaintiff.

Law Dept. of the City of New York Corp. Counsel, New York City, for defendants (Jane L. Gordon and Lisa S.J. Yee, of counsel).

ORDER AND OPINION

LEISURE, District Judge:

This is a civil rights action under 42 U.S.C. § 1983 and 42 U.S.C. § 1981, against Officer Scott Cohen ("Cohen") of the New York City Police Department and the City of New York (the "City").

The complaint alleges the following facts:

At approximately 8 a.m. on October 11, 1983, plaintiff attempted to move his automobile from its parked location in front of his residence at 105 West 55th Street, New York City. While plaintiff was allegedly having difficulty starting his vehicle, he was approached by defendant, Officer Scott Cohen of the New York City Police Department. Officer Cohen was in uniform and on duty.

Officer Cohen informed plaintiff that he was parked illegally, and began to issue a summons for the violation. Plaintiff attempted to persuade Officer Cohen not to issue the summons. When this proved ineffective, plaintiff turned to ask a bystander if he would be a witness to what was occurring. At this point, according to plaintiff, defendant Cohen allegedly assaulted plaintiff and arrested him on charges of assault, harassment, disorderly conduct, and resisting arrest. Subsequently, plaintiff was acquitted of all charges.

In addition to his § 1983 claim, plaintiff asserts that the acts and conduct of defendants constitute a full panoply of violations against him under New York law, consisting of assault, battery, false arrest, intentional infliction of emotional distress, abuse of process, prima facie tort, negligence and gross negligence.

The action was filed on January 4, 1985. The Pretrial Order was submitted on October 21, 1987. The action was set for trial on December 5, 1989, and subsequently adjourned to January 4, 1989. At a pretrial conference held on December 13, 1989, the parties brought forward numerous issues for the first time. The action is currently before the Court on these applications.

DISCUSSION

"Most lawyers who litigate in this court perform their function at a commendable level of professionalism, advancing claims and defenses with the zeal of a trained advocate, but properly tempering enthusiasm for a client's cause with careful regard for the obligations of truth, candor, accuracy, and professional judgment that are expected of them as officers of the court." Oliveri v. Thompson, 803 F.2d 1265 (2d Cir.1986), cert. denied, 480 U.S. 918, 107 S.Ct. 1373, 94 L.Ed.2d 689. Though the subject of sanctions is a distasteful one for this Court, it will not hesitate to impose appropriate sanctions in order to preserve the integrity of the judicial process. Any attorney "who so multiplies the proceedings in this case unreasonably and vexatiously may be required by the court to satisfy personally the excess costs, expenses, and attorneys' fees reasonably incurred because of such conduct." 28 U.S.C. § 1927; see also F.D. Rich Co. v. United States ex rel. Industrial Lumber Co., 417 U.S. 116, 129, 94 S.Ct. 2157, 2165, 40 L.Ed.2d 703 (1974) (inherent power of the court to impose sanctions); Dow Chemical Pacific Ltd. v. Rascator Maritime S.A., 782 F.2d 329, 344 (2d Cir.1986). The parties and their attorneys are hereby put on notice that the Court will not tolerate contumacious attitudes on their parts, nor vexatiousness in unduly prolonging these proceedings.

1. Motion to Dismiss

A. The Section 1981 Claim Against New York City

Defendants have requested that this Court dismiss the claim, under 42 U.S.C. § 1981 against the City of New York, pursuant to Fed.R.Civ.P. 12(b)(6)¹, arguing that the doctrine of respondeat superior is inapplicable to claims brought under 42 U.S.C. § 1981. Plaintiff contends that the City can be held liable under § 1981 on a vicarious liability theory.

The respondeat superior doctrine has generally been held to be inapplicable to actions brought under 42 U.S.C. § 1983. See, e.g., Monell v. Department of Social Services, 436 U.S. 658, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978); Ellis v. Blum, 643 F.2d 68 (2d Cir.1981). However, both the Supreme Court and the Second Circuit have declined to state whether the doctrine applies to § 1981 actions. See General Bldg. Contractors Ass'n v. Pennsylvania, 458 U.S. 375, 392, 102 S.Ct. 3141, 73 L.Ed.2d 835 (1982); Krulik v. Board of Education of the City of New York, 781 F.2d 15, 23 (2d Cir.1986). The Monell Court's rejection of respondeat superior in § 1983 claims against municipalities has no bearing on § 1981 claims. See, e.g., Leonard v. City of Frankfort Elec. and Water Plant Bd., 752 F.2d 189, 194 n. 9 (6th Cir.1985) (citations omitted); Pennsylvania v. Local Union 542, 469 F.Supp. 329, rev'd on other grounds sub. nom. General Building Contractors Ass'n v. Pennsylvania, 458 U.S. 375, 102 S.Ct. 3141, 73 L.Ed.2d 835 (1982). But see Jett v. Dallas Independent School Dist., 798 F.2d 748 (5th Cir. 1986), reh'g denied, 837 F.2d 1244 (1988), cert. granted ___ U.S. ___, 109 S.Ct. 363, 102 L.Ed.2d 353 (1988).² "Most of the courts that have addressed the question have held that respondeat superior does apply to § 1981 actions against public employers." Springer v. Seaman, 821 F.2d 871, 880 (1st Cir.1987) (footnote omitted).³See also Dickerson v. City Bank & Trust Co., 590 F.Supp. 714 (D.Kan.1984); Haugabrook v. City of Chicago, 545 F.Supp. 276 (N.D.Ill.1982); Jones v. Local 520, Int'l Union of Operating Eng'rs, 524 F.Supp. 487 (S.D.Ill.1981); Ganguly v. New York State Dept. of Mental Hygiene, 511 F.Supp. 420 (S.D.N.Y.1981); Pennsylvania v. Local Union 542, supra; cf. EEOC v. Gaddis, 733 F.2d 1373 (10th Cir.1984) (private employer); Miller v. Bank of America, 600 F.2d 211 (9th Cir.1979) (same).

As a general rule, the civil rights statutes should be construed individually since "different problems of statutory meaning are presented by two enactments deriving from different constitutional sources." District of Columbia v. Carter, 409 U.S. 418, 423, 93 S.Ct. 602, 605, 34 L.Ed.2d 613 (1972), (quoting Monroe v. Pape, 365 U.S. 167, 205-06, 81 S.Ct. 473, 494, 5 L.Ed.2d 492 (1961) (Frankfurter, J., dissenting)). Section 1983 was enacted to enforce the fourteenth amendment as part of the Civil Rights Act of 1871, whereas section 1981 was originally enacted under the thirteenth amendment as section 1 of the Civil Rights Act of 1866 and later reenacted under the fourteenth amendment as section 16 of the Enforcement Act of May 31, 1870. In determining that a municipality cannot be held vicariously liable under § 1983 for the unconstitutional acts of its employees, the Monell Court relied upon the peculiar language, purpose and legislative history of that statute, which has no bearing on section 1981. See, e.g., Williams v. City of New York, No. 81 Civ. 0839, slip op. (S.D. N.Y. June 11, 1982); Patton v. Dumpson, 498 F.Supp. 933 (S.D.N.Y.1980). "The unequivocal language of § 1981 and its legislative history `manifests Congress' purpose to enact sweeping legislation implementing the thirteenth amendment to abolish all the remaining badges and vestiges of the slavery system.'" Springer v. Seaman, 821 F.2d 871, 881 (1st Cir.1987) (quoting Haugabrook v. City of Chicago, 545 F.Supp. 276, 280 (N.D.Ill.1982) (citation omitted)).

There are significant differences between the language, legislative purpose and history of § 1981 and § 1983. Unlike section 1983, section 1981 contains no limitation to actions taken under color of state law and has been held to apply to private as well as public acts of discrimination without regard to whom the actor might be as long as the plaintiff suffered discrimination because of his or her race. Runyon v. McCrary, 427 U.S. 160, 96 S.Ct. 2586, 49 L.Ed.2d 415 (1976); Jones v. Alfred H. Mayer Co., 392 U.S. 409, 88 S.Ct. 2186, 20 L.Ed.2d 1189 (1968). Furthermore, the legislative history of § 1981, unlike § 1983, does not evidence any intention to reject the concept of respondeat superior ordinarily applicable in common law tort actions or to import into that statute any strict causation requirements that are apparent in the debates on and the wording of section 1983. See Mahone v. Waddle, 564 F.2d 1018, 1031 (3d Cir.1977), cert. denied, 438 U.S. 904, 98 S.Ct. 3122, 57 L.Ed.2d 1147 (1978); Haugabrook v. City of Chicago, 545 F.Supp. 276, 281 (N.D.Ill. 1982). Moreover, there is ample authority for the proposition that private corporate defendants may be held vicariously liable under § 1981 for the racially discriminatory conduct of their employees, Miller v. Bank of America, 600 F.2d 211, 213 (9th Cir.1979); Flowers v. Crouch-Walker Corp., 552 F.2d 1277, 1282 (7th Cir.1977), and there is no principled reason to distinguish between private and public employers based on the wording or history and purpose of section 1981.⁴

The Court holds that the doctrine of respondeat superior is applicable to claims brought under 42 U.S.C. § 1981. Accordingly, defendants' motion to dismiss the § 1981 claims against the City of New York is denied.

B. Notice of Claim

Defendants also seek, pursuant to Fed.R. Civ.P. 12(b)(6), to dismiss certain state law claims allegedly not identified in plaintiff's notice of claim.⁵ Specifically, defendants assert that plaintiff's notice of claim is not a sufficient predicate for the state law causes of action of intentional infliction of emotional distress, abuse of process, negligence and gross negligence.

New York General Municipal Law Section 50-e requires that a notice of claim be filed, within 90 days of the accrual of a claim, prior to commencing a tort action against a municipality and/or its...