Plaintiff has โprovid[ed] no admissible evidence to support [his] claimโ, โ[n]or has he produced evidence to show a pattern of misconduct to suggest a municipal policy or custom.โ Mercier v. Kelly, No. 10-Civ. 7951 (ALC) (JCF), 2013 U.S. Dist. LEXIS 118106, at **20-22 (S.D.N.Y. April 30, 2013) report & recommendation adopted 2013 U.S. Dist. LEXIS 117837, (S.D.N.Y. Aug. 9, 2013).
Therefore, James Doe has successfully raised a genuine issue of material fact as to whether B.W. is a suitable comparator. See Mercier v. Kelly, No. 10-CV-7951, 2013 WL 4452486, at *5 (S.D.N.Y. Aug. 19, 2013) ("[T]o survive a motion for summary judgment, [the plaintiff] must produce sufficient facts for a jury to find that [he and the comparator] were โroughly equivalent.โ ").
rmined that "even after the U.S. Supreme Court's decision in Iqbal, these 'categories supporting personal liability of supervisors still apply as long as they are consistent with the requirements applicable to the particular constitutional provision alleged to have been violated.'" Hernandez v. Goord, No. 01-9585, 2013 WL 2355448, at *7 (S.D.N.Y. May 29, 2013) (quoting Qasem v. Toro, 737 F. Supp. 2d 147, 152 (S.D.N.Y. 2010)) (citing Iqbal, 556 U.S. at 676); see Ramey v. Perez, No. 13-00017, 2014 WL 407097, at *4 (S.D.N.Y. Jan. 31, 2014) ("Colon remains the standard in this Circuit for deciding whether personal involvement by supervisory officials is sufficiently alleged in the context of the Eighth Amendment."); see also Morgan v. Comm'r Dzurenda, No. 14-966, 2015 WL 5722723, at *7 (D. Conn. Sept. 29, 2015) ("Because it is unclear as to whether Iqbal overrules or limits Colon, the Court will continue to apply the categories for supervisory liability set forth by the Second Circuit."); Mercier v. Kelly, No. 10-7951, 2013 WL 4452486, at *6 (S.D.N.Y. Aug. 19, 2013) ("[T]he majority view is where 'the constitutional claim does not require a showing of discriminatory intent . . . the personal involvement analysis set forth in Colon v. Coughlin may still apply.'")
Notwithstanding the Second Circuit's silence, the majority of courts considering the issue have determined that "even after the U.S. Supreme Court's decision in Iqbal, these โcategories supporting personal liability of supervisors still apply as long as they are consistent with the requirements applicable to the particular constitutional provision alleged to have been violated.โ " Hernandez v. Goord , No. 01 Civ. 9585, 2013 WL 2355448, at *7 (S.D.N.Y. May 29, 2013) (quoting Qasem v. Toro , 737 F.Supp.2d 147, 152 (S.D.N.Y. 2010) ); see alsoRamey v. Perez , No. 13 Civ. 00017, 2014 WL 407097, at *4 (S.D.N.Y. Jan. 31, 2014) (" Colon remains the standard in this Circuit for deciding whether personal involvement by supervisory officials is sufficiently alleged in the context of the Eighth Amendment."); Mercier v. Kelly , No. 10 Civ. 7951, 2013 WL 4452486, at *6 (S.D.N.Y. Aug. 19, 2013) ("[T]he majority view is where โthe constitutional claim does not require a showing of discriminatory intent ... the personal involvement analysis set forth in Colon v. Coughlin may still apply.โ ") (quoting Shepherd v. Powers , No. 11 Civ. 6860, 2012 WL 4477241, at *10 (S.D.N.Y. Sept. 27, 2012) ); Martinez v. Perilli , No. 09 Civ. 6470, 2012 WL 75249, at *4 (S.D.N.Y. Jan. 5, 2012) ("[T]he five Colon categories still apply after Iqbal. "); Morgan v. Comm'r Dzurenda , No. 3:14-CV-966, 2015 WL 5722723, at *7 (D. Conn. Sept. 29, 2015) ("Because it is unclear as to whether Iqbal overrules or limits Colon , the Court will continue to apply the categories for supervisory liability set forth by the Second Circuit.")
Of late, however, most judges have continued to apply Colon in its entirety, since there is no clear direction from a higher court to the contrary. See Mercier v. Kelly, No. 10-CV-7951 (ALC) (JCF), 2013 WL 4452486, at *6 (S.D.N.Y. Aug. 19, 2013) (quoting Shepherd v. Powers, No. 11 Civ. 6860, 2012 WL 4477241, at *10 (S.D.N.Y. Sept. 27, 2012)) ("[T]he apparent majority view [is] that where, as here, the constitutional claim does not require a showing of discriminatory intent, . . . the personal involvement analysis set forth in Colon . . . may still apply.") (internal quotation marks omitted; first ellipsis in original). For purposes of this Report and Recommendation, I will follow the majority, whose reading of Iqbal is the most helpful to Ciaprazi's case.
Therefore, because, in addition to suing the Village, Plaintiff has sued Knizeski only in his official capacity, the Court dismisses Plaintiff's claims against Knizeski. See Liang v. City of New York, No. 10-CV-3089, 2013 WL 5366394, at *17 (E.D.N.Y. Sept. 24, 2013) (dismissing official-capacity claims, under Rule 12(b)(6), where the plaintiff alleged identical claims against a municipality); Mercier v. Kelly, No. 10-CV-7951, 2013 WL 4452486, at *1, *6-7 (S.D.N.Y. Aug. 19, 2013) (granting summary judgment for the same reason); see also Phillips v. Cnty. of Orange, 894 F. Supp. 2d 345, 384 n.35 (S.D.N.Y. 2012) ("Within the Second Circuit, where a plaintiff names both the municipal entity and an official in his or her official capacity, district courts have consistently dismissed the official capacity claims as redundant."). With respect to Plaintiff's claims against Defendant ZBA, "[i]t is well-established that under New York law, departments that are merely administrative arms of a municipality do not have a legal identity separate and apart from the municipality and therefore, cannot sue or be sued."
However, the majority of courts (including Judge McMahon) have held that "even after the U.S. Supreme Court's decision in Iqbal, these 'categories supporting personal liability of supervisors still apply as long as they are consistent with the requirements applicable to the particular constitutional provision alleged to have been violated.'" Hernandez v. Goord, No. 01 Civ. 9585 (SHS), 2013 WL 2355448, at *7 (S.D.N.Y. May 29, 2013) (quoting Qasem v. Toro, 737 F. Supp. 2d 147, 152 (S.D.N.Y. 2010)). See also Ramey v. Perez, No. 13 Civ. 00017 (CM), 2014 WL 407097, at *4 (S.D.N.Y. Jan. 31, 2014) (McMahon, J.) ("Colon remains the standard in this Circuit for deciding whether personal involvement by supervisory officials is sufficiently alleged in the context of the Eighth Amendment."); Mercier v. Kelly, No. 10 Civ. 7951 (ALC) (JCF), 2013 WL 4452486, at *6 (S.D.N.Y. Aug. 19, 2013) ("[T]he majority view is where 'the constitutional claim does not require a showing of discriminatory intent . . . the personal involvement analysis set forth in Colon v. Coughlin may still apply.'") (quoting Shepherd v. Powers, No. 11 Civ. 6860 (LTS) (RLE), 2012 WL 4477241, at *10 (S.D.N.Y. Sept. 27, 2012)); Martinez v. Perilli, No. 09 Civ. 6470 (WHP), 2012 WL 75249, at *4 (S.D.N.Y. Jan. 5, 2012) ("[T]he five Colon categories still apply after Iqbal.").
See Will v. Michigan Dept. of State Police, 491 U.S. 58, 71 ("[A] suit against a state official in his or her official capacity is not a suit against the official but rather a suit against the office."); Mercier v. Kelly, No. 10 CV 7951 (ALC) (JCF), 2013 WL 4452486, at *6 (S.D.N.Y. Aug. 19, 2013) (holding same). So, too, is a claim against the NYPD, as a police department is merely an arm of the City.