A lawsuit against FDNY and NYPD alleging a failure to promptly come to the aid of a shooting victim has been dismissed by a federal court. Migdalia Ortega was shot by her boyfriend on May 9, 2022 in Queens.
The administratrix of her estate, Gloria Felix, filed suit against the city, NYPD and FDNY alleging a violation of her Fourth, Eight and Fourteenth Amendment rights, as well as several state law claims based upon the failure to provide Ortega with adequate medical care. The complaint alleged that if emergency personnel had promptly entered into her apartment, her wounds would have been survivable.
The US District Court for the Eastern District of New York granted the city’s motion to dismiss the suit ruling as follows (quotation marks and citation removed to facilitate reading]:
- Fourth Amendment: The Fourth Amendment protects the right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures.
- The complaint alleges that Defendants violated Ortega’s Fourth Amendment rights when they entered the apartment without a warrant and “seized control” of the premises
- The complaint does not allege an unreasonable search or seizure.
- The complaint, on its face, alleges facts supporting application of the emergency aid exception.
- Even read in the light most favorable to Felix, the complaint alleges facts that would lead a “reasonable” and “experienced” officer to conclude that Ortega required emergency assistance. Felix thus has not plausibly alleged that Defendants’ entry into the apartment violated the Fourth Amendment.
- Fourteenth Amendment Due Process: Felix also brings a claim under the Due Process Clause of the Fourteenth Amendment.
- Specifically, she alleges that by unreasonably delaying treatment of Ortega’s wounds, Defendants violated her due process rights.
- The complaint does not state a viable due process claim under the Fourteenth Amendment. The Due Process Clauses generally confer no affirmative right to governmental aid, even where such aid may be necessary to secure life, liberty, or property interests of which the government itself may not deprive the individual.
- And even assuming, arguendo, that Defendants negligently treated Ortega’s wounds, liability for negligently inflicted harm is categorically beneath the threshold of constitutional due process.
- Felix argues that state officials can be liable for damages under the Due Process Clause when they are deliberately indifferent to the medical needs of a pretrial detainee.
- Ortega had not been seized within the meaning of the Fourth Amendment let alone incarcerated ahead of trial. Thus, Felix’s substantive due process claim also lacks merit.
- Fourteenth Amendment Equal Protection:
- The complaint states, in passing, that Defendants’ conduct violated Ortega’s rights under the Equal Protection Clause of the Fourteenth Amendment.
- Because the complaint does not allege Ortega’s membership in a particular class or group, the Court construes this as a “class of one” claim.
- A class of one equal protection claim requires a plaintiff to show that she has been intentionally treated differently from others similarly situated and that there is no rational basis for the difference in treatment.
- Here, the complaint does not allege the existence of any similarly situated comparator to Ortega. Accordingly, the complaint does not state a viable class of one claim under the Equal Protection Clause.
- Eighth Amendment: The complaint goes on to allege that Defendants’ conduct violated the Eighth Amendment’s ban on cruel and unusual punishment.
- The Eighth Amendment’s protections only apply to convicted prisoners. Ortega was not a convicted prisoner. So, Felix cannot bring an Eighth Amendment claim here.
- Monell Claim: Felix also alleges that the City is liable for the above-discussed alleged constitutional violations of its employees.
- To establish municipal liability for the allegedly unconstitutional acts of city employees under 42 U.S.C. § 1983, a plaintiff must show that the action alleged to be unconstitutional implements or executes official municipal policy, or that it stems from a “governmental custom even though such a custom has not received formal approval through the municipality’s official decisionmaking channels.
- There can be no Monell liability unless a plaintiff shows that she has been the victim of a federal law tort committed by persons for whose conduct the municipality can be responsible.
- Because Felix has failed to plausibly allege that Defendants violated Ortega’s legal rights, her Monell claims against the City must fail.
- But even if Felix had adequately alleged an individual employee’s violation, she still has not plausibly alleged that the challenged conduct stemmed from official City policy or unofficial City custom.
- Accordingly, Felix’s claims against the City must be dismissed.
The court declined to consider the state law allegations of negligence and wrongful death. Here is a copy of the complaint.
