Raffaele v. City of New York et al
Filing
98
MEMORANDUM AND ORDER. For the reasons stated in the attached Memorandum and Order, the court grants the moving defendants motion to dismiss 56 in its entirety and plaintiffs following claims are hereby dismissed: (1) conspiracy claims pursuant to §§ 1983, 1985, and 1986 (Counts I, V, VI, VII and VIII); (2) denial of access claim pursuant to § 1983 (Count IV); (3) supervisory liability claim against Commissioner Kelley (Count IX); (4) municipal liability claim (Count X); (5) pri ma facie tort claim (Count XII); (6) slander and libel claims(Counts XIII and XV); and (7) all claims against the District Attorney defendants. In the absence of any request or proposals by plaintiff, the court denies leave to amend at this time. If plaintiff intends to amend his complaint, he must make his request including his proposed amendments within 14 days of entry of this Memorandum and Order. Ordered by Judge Kiyo A. Matsumoto on 10/30/2015. (Gong, LiJia)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
----------------------------------------X
THOMAS D. RAFFAELE,
Plaintiff,
- against –
THE CITY OF NEW YORK; RAYMOND W. KELLY,
individually and in his official capacity
as Police Commissioner for the City of
New York; RICHARD A. BROWN, in his
official capacity as the Queens District
Attorney; DANIEL O'LEARY, individually
and in his official capacity as an
Assistant District Attorney for Queens
County; PETER A. CRUSCO, individually and
in his official capacity as an Assistant
District Attorney of Queens County; LUIS
SAMOT, individually and in his official
capacity as a New York City Police
Officer; RUSSELL LAWRY, individually
and in his official capacity as a New
York City Police Officer; JON-KRISTIAN
RZONCA, individually and in his official
capacity as a New York City Police
Officer; MOSES LEE, individually and in
his official capacity as a New York City
Police Officer; CARON ADDESSO,
individually and in her official capacity
as a New York City Police Officer; DAVID
TAORMINA, individually and in his
official capacity as a New York City
Police Officer; ANIBAL MARTINEZ,
individually and in his official capacity
as a New York City Police Officer; and
NICHOLAS GIGANTE, individually and in his
official capacity as a New York City
Police Officer,
Defendants.
----------------------------------------X
MATSUMOTO, United States District Judge:
MEMORANDUM & ORDER
13-CV-4607(KAM)(VVP)
Plaintiff Thomas D. Raffaele (“plaintiff” or “Judge
Raffaele”) brings this lawsuit pursuant to 42 U.S.C. §§ 1983,
1985, and 1986 and New York state law against the City of New
York (the “City”); former New York City Police Commissioner
Raymond W. Kelly; Queens District Attorney Richard A. Brown;
Assistant District Attorneys Daniel O’Leary and Peter A. Crusco;
and New York City Police Department (“NYPD”) Officers and
Sergeants Luis Samot, Russell Lawry, Jon-Kristian Rzonca, Moses
Lee, Caron Addesso, David Taormina, Anibal Martinez, and
Nicholas Gigante (collectively, “defendants”) in connection with
police activity at the intersection of 37th Road and 74th Street
in Jackson Heights, New York in the early morning hours on June
1, 2012.
Presently before the court is a motion by defendants
Raymond Kelly (“Commissioner Kelly”), District Attorney Richard
Brown (“DA Brown”), Assistant District Attorneys Daniel O’Leary
(“ADA O’Leary”) and Peter Crusco (“ADA Crusco”), and the City
(together, the “moving defendants”) to dismiss plaintiff’s
claims for (1) conspiracy pursuant to 42 U.S.C. §§ 1983, 1985,
and 1986; (2) denial of access to the court; (3) supervisory
liability; (4) municipal liability; (5) defamation; (6) prima
facie tort and (7) all other claims against DA Brown, ADA
O’Leary, and ADA Crusco (the “District Attorney defendants”).
For the reasons set forth below, the moving defendants’ motion
is granted in its entirety.
2
BACKGROUND
The following facts, even where alleged “upon
information and belief,” are taken from plaintiff’s amended
complaint and are assumed to be true solely for the purpose of
the court’s evaluation of the motion to dismiss.
ECF No. 45, dated 1/28/14.)
(Am. Compl.,
On or around 12:00 a.m. on June 1,
2012, Judge Raffaele, a justice of the Supreme Court of the
State of New York, County of Queens, and his associate Muhammad
Rashid (“Mr. Rashid”) were traveling east on 37th Road toward
74th Street in Jackson Heights, New York to return car keys Mr.
Rashid had previously borrowed.
(Id. ¶¶ 6, 24-25.)
As Judge
Raffaele and Mr. Rashid arrived at the intersection of 37th Road
and 74th Street, they noticed a crowd gathering and observed two
officers of the NPYD who were later identified as Officer Luis
Samot (“Officer Samot”) and Officer Russell Lawry (“Officer
Lawry”).
(Id. ¶ 28.)
Judge Raffaele observed that Officer Samot was
restraining Charles Menninger (“Mr. Menninger”), a homeless
individual who is “commonly known in the neighborhood.”
29.)
(Id. ¶
Judge Raffaele also observed Officer Lawry standing on
74th Street, kicking a metal pipe toward Mr. Menninger. (Id. ¶
30.)
Judge Raffaele also observed Officer Samot kneeling with
force on Mr. Menninger’s left side while Mr. Menninger was lying
face down, shirtless with his hands handcuffed behind his back.
3
(Id. ¶¶ 31-32.)
Judge Raffaele allegedly observed Officer Samot
repeatedly stand up and drive his right knee into Mr.
Menninger’s back with “brutal force”.
(Id. ¶¶ 32-33.)
Mr.
Menninger was not attempting to stand up, resist, or flee and
was allegedly saying “I beg you please stop; I beg you please
stop.”
(Id. ¶¶ 34-35.)
Judge Raffaele observed that a crowd was growing
around the NYPD officers and that some members of the crowd were
asking the police officers to stop their actions toward Mr.
Menninger.
(Id. ¶¶ 38-39.)
Judge Raffaele overheard a female
observer tell Officer Samot and Officer Lawry: “I’m a nurse.
You are injuring him.
You have to stop.”
(Id. ¶ 40.)
Judge
Raffaele observed that the crowd was growing in size and was
becoming increasingly aggressive toward Officers Samot and
Lawry, and he walked away from the scene and called the 911
emergency line in an effort to ensure the safety of Officers
Samot and Lawry.
(Id. ¶ 44.)
Judge Raffaele then allegedly
walked back to the sidewalk corner of 74th Street and 37th Road
and attempted to calm down the crowd and move them away from Mr.
Menninger and Officers Samot and Lawry.
(Id. ¶ 46.)
Shortly thereafter, additional NYPD officers,
including Sergeant Rzonca, Sergeant Taormina, Sergeant Addesso,
Officer Martinez, and Officer Lee arrived at the scene.
47.)
The additional NYPD officers set up a human safety
4
(Id. ¶
perimeter around Mr. Menninger and Officers Samot and Lawry in
the middle of 74th Street and began managing the large crowd.
(Id. ¶ 48.)
Judge Raffaele allegedly did not enter the safety
perimeter at any time and stood approximately ten to fifteen
feet away from the safety perimeter.
(Id. ¶¶ 49, 61.)
Judge Raffaele allegedly observed Officer Samot yell
obscenities at the crowd and “violently shove and attack”
members of the crowd.
(Id. ¶¶ 56-57, 62-63.)
Officer Samot
allegedly “charged up” to Judge Raffaele, who was standing
approximately fifteen feet away from the NYPD officers and
shoved Judge Raffaele with his right arm without any warning or
explanation.
(Id. ¶¶ 64-65.)
Officer Samot also struck Judge
Raffaele in the neck using a “karate chop-like” move with his
left hand immediately thereafter.
(Id. ¶ 66.)
Officer Samot’s
actions against Judge Raffaele were captured on video and at
least four or five NYPD officers observed the incident,
including Sergeant Rzonca.
(Id. ¶¶ 67, 84.)
Judge Raffaele was
allegedly overcome with “blinding pain” and temporarily lost his
ability to speak and breathe properly.
(Id. ¶ 70.)
Other NYPD
officers immediately moved Officer Samot away from Judge
Raffaele.
(Id. ¶ 72.)
After Judge Raffaele regained the ability to speak, he
informed Officer Lee that he wanted to file an official report
or complaint against Officer Samot.
5
(Id. ¶ 73.)
Officer Lee
allegedly responded that he “can’t do that”, and Judge Raffaele
immediately demanded to speak to the commanding officer.
74.)
(Id. ¶
Shortly thereafter, Sergeant Rzonca approached Judge
Raffaele and identified himself.
(Id. ¶ 75.)
Judge Raffaele
then identified himself as a New York State Supreme Court Judge
and informed Sergeant Rzonca of the attack by Officer Samot.
(Id. ¶ 76.)
While speaking with Sergeant Rzonca, Judge Raffaele
displayed signs of extreme pain and discomfort in his neck area.
(Id. ¶ 77.)
Judge Raffaele demanded that Sergeant Rzonca take
his statement for a formal complaint against Officer Samot.
(Id. ¶ 78.)
Sergeant Rzonca did not take Judge Raffaele’s
statement but promised to investigate and spoke with a group of
NYPD officers that included Officer Samot and other officers who
had witnessed the attack against Judge Raffaele.
(Id. ¶ 79.)
After speaking with the officers, Sergeant Rzonca returned to
Judge Raffaele and stated: “I don’t know what you are talking
about.”
(Id. ¶ 80.)
Plaintiff alleges that the group of NYPD
officers with whom Sergeant Rzonca spoke reported that nothing
had happened involving Judge Raffaele.
(Id. ¶ 81.)
Sergeant
Rzonca did not offer Judge Raffaele any alternative recourse or
take Judge Raffaele’s statement.
(Id. ¶ 82.)
Judge Raffaele
alleges that NYPD officers, including Officer Lee and Sergeant
Rzonca, intentionally concealed Officer Samot’s identity from
Judge Raffaele in an attempt to protect Officer Samot from
6
discipline.
(Id. ¶ 93.)
Thereafter, Judge Raffaele and Mr. Rashid left the
scene.
(Id. ¶ 87.)
Judge Raffaele continued to experience neck
pain and labored breathing (Id. ¶¶ 91, 95.)
At about 1:00 a.m.
on June 1, 2012, Judge Raffaele went to the Emergency Room at
Elmhurst Hospital Center, where he was examined for internal
injuries, including a crushed larynx.
(Id. ¶ 99.)
Judge Raffaele advised the medical staff that his
injuries resulted from an attack, and the hospital staff
summoned two NYPD officers from the 110th Precinct to take Judge
Raffaele’s statement.
(Id. ¶ 100-01.)
The NYPD officers
belonging to the 110th Precinct met with Judge Raffaele and
began to take his statement against Officer Samot.
(Id. ¶ 102.)
A few minutes after they started speaking with Judge Raffaele,
the 110th Precinct officers “were called away” out of the sight
of Judge Raffaele.
(Id. ¶ 103.)
Mr. Rashid observed Officer
Lee and Sergeant Rzonca speaking with the NYPD officers from the
110th Precinct on two separate occasions in the Emergency Room.
(Id. ¶ 104.)
Thereafter, the NYPD officers from the 110th
Precinct returned to Judge Raffaele and informed him that the
incident occurred beyond the 110th Precinct’s geographic
boundaries, refused to take Judge Raffaele’s statement and
advised him to file a complaint at his local precinct.
105-06.)
(Id. ¶¶
Judge Raffaele was discharged from Elmhurst Hospital
7
Center at or around 5:30 a.m. on June 1, 2012.
(Id. ¶ 109.)
During the week of July 8, 2012, Judge Raffaele met
with ADA O’Leary and NYPD Internal Affairs Bureau (“NYPD
Internal Affairs”) detectives.
(Id. ¶ 110.)
Judge Raffaele
filed complaints with the New York Civilian Complaint Review
Board (the “CCRB”), the Queens District Attorney’s Office and
Internal Affairs.
(Id. ¶ 111.)
The complaints included the
names and contact information for Mr. Rashid and S.M. Ismail
(“Mr. Ismail”), two eyewitnesses to Judge Raffaele’s attack.
(Id. ¶¶ 112-14.)
Judge Raffaele met with ADA Crusco on July 25, 2012 at
which point ADA Crusco informed Judge Raffaele that “there was
not enough evidence to prosecute.”
(Id. ¶¶ 116-17.)
ADA Crusco
conceded that he did not interview Mr. Rashid and Mr. Ismail
despite being provided with their contact information.
118.)
(Id. ¶
ADA Crusco informed Judge Raffaele that multiple NYPD
officers’ statements contradicted Judge Raffaele’s allegations
against Officer Samot.
(Id. ¶ 119.)
Specifically, ADA Crusco
informed Judge Raffaele that one statement described Judge
Raffaele charging into the safety perimeter and acting
aggressively and other written statements showed that Officer
Samot only touched Judge Raffaele once on the chest with his
right hand (or not at all) and failed to mention Officer Samot’s
strike to Judge Raffaele’s throat.
8
(Id. ¶¶ 125-27.)
ADA Crusco
also allegedly informed Judge Raffaele that the statements
described Judge Raffaele yelling and inciting the crowd.
¶¶ 128-29.)
(Id.
ADA Crusco did not identify Officer Samot as the
assailant at the July 25, 2012 meeting.
(Id. ¶ 134.)
The amended complaint alleges that Officer Samot,
Officer Lee, Officer Martinez, Officer Gigante, Sergeant Rzonca,
Sergeant Taormina and Sergeant Addesso gave false and misleading
statements to NYPD Internal Affairs, devising a version of the
incident to shield Officer Samot from disciplinary action and
criminal prosecution.
(Id. ¶¶ 120, 133.)
In early August 2012, NYPD officers who work with the
Queens District Attorney’s Office approached Mr. Rashid and Mr.
Ismail for interviews regarding the June 1, 2012 incident.
¶ 142.)
(Id.
In his interview, Mr. Ismail recounted a narrative of
the June 1, 2012 incident that mirrored that of Judge Raffaele.
(Id. ¶ 148.)
Mr. Ismail found the NYPD officers to be very
aggressive and felt as if the NYPD officers were attempting to
dissuade him from coming forward with his account and were
discrediting his narrative.
(Id. ¶¶ 145-47.)
Mr. Rashid also
recounted the same version of the incident as described by Judge
Raffaele and Mr. Ismail in his interview, and felt that the NYPD
officers and Queens District Attorney’s Office discredited his
account.
(Id. ¶¶ 152-53.)
On August 22, 2012, DA Brown issued a public statement
9
on behalf of the Queens District Attorney’s Office stating that
“the alleged assault [on Judge Raffaele] occurred in a safety
perimeter that police officers attempted to establish around the
incident to contain Mr. Menninger and separate him from the
growing crowd.” (Id. ¶ 157.)
On August 26, 2012, Judge Raffaele met with ADA
Crusco, investigators from the CCRB and NYPD Internal Affairs
officers.
(Id. ¶ 160.)
ADA Crusco again informed Judge
Raffaele that the Queens District Attorney’s Office would not be
bringing any charges against officer Samot related the June 1,
2012 incident, because Judge Raffaele had been acting
aggressively and “nothing happened”.
(Id. ¶ 161.)
The amended complaint alleges that Judge Raffaele’s
reputation and his perceived ability to perform his duties as a
judge have been adversely affected by DA Brown’s public
statement and ADA Crusco’s statements.
(Id. ¶ 163.)
The
amended complaint also alleges that Commissioner Kelly became
aware of the June 1, 2012 incident in early June 2012 when
questioned by members of the press.
(Id. ¶ 166.)
On July 7,
2012, a New York Times article published a quote by Commissioner
Kelly stating that “the investigation is going forward.”
167.)
10
(Id. ¶
STANDARD OF REVIEW
I.
Motion for Judgment on the Pleadings Pursuant to Rule 12(c)
Federal Rule of Civil Procedure 12(c) provides, in
relevant part, that “[a]fter the pleadings are closed – but
early enough not to delay trial – a party may move for judgment
on the pleadings.”
Fed. R. Civ. P. 12(c).
“The standard for
granting a Rule 12(c) motion for judgment on the pleadings is
identical to that of a Rule 12(b)(6) motion for failure to state
a claim.”
Patel v. Contemporary Classics of Beverly Hills, 259
F.3d 123, 126 (2d Cir. 2001).
A complaint must plead “enough facts to state a claim
to relief that is plausible on its face.”
Twombly, 550 U.S. 544, 570 (2007).
Bell Atl. Corp. v.
“A claim has facial
plausibility when the plaintiff pleads factual content that
allows the court to draw the reasonable inference that the
defendant is liable for the misconduct alleged.”
Iqbal, 556 U.S. 662, 678 (2009).
Ashcroft v.
Although “‘detailed factual
allegations’” are not required, “[a] pleading that offers
‘labels and conclusions’ or ‘a formulaic recitation of the
elements of a cause of action will not do.’”
Twombly, 550 U.S. at 555).
Id. (quoting
Similarly, a complaint is
insufficient to state a claim “if it tenders ‘naked
assertion[s]’ devoid of ‘further factual enhancement.’” Id.
(quoting Twombly, 550 U.S. at 557).
11
II.
Materials Outside the Pleadings
On a motion to dismiss, “‘consideration is limited to
the factual allegations in plaintiff's amended complaint, which
are accepted as true, to documents attached to the complaint as
an exhibit or incorporated in it by reference, to matters of
which judicial notice may be taken, or to documents either in
plaintiff's possession or of which plaintiff had knowledge and
relied on in bringing suit.’”
Faconti v. Potter, 242 F. App'x
775, 777 (2d Cir. 2007) (quoting Brass v. American Film
Technologies, Inc., 987 F.2d 142, 150 (2d Cir. 1993))(internal
alterations omitted).
The Second Circuit has clarified that
because the reliance standard “has been misinterpreted on
occasion,” “a plaintiff’s reliance on the terms and effect of a
document in drafting the complaint is a necessary prerequisite
to the court’s consideration of the document on a dismissal
motion; mere notice or possession is not enough.”
Chambers v.
Time Warner, Inc., 282 F.3d 147, 153 (2d Cir. 2002)(citing
Cortec Indus., Inc. v. Sum Holding L.P., 949 F.2d 42, 47-48 (2d
Cir. 1991)).
Here, the court first addresses whether it may
properly consider two documents while evaluating defendants’
motion to dismiss: the August 22, 2012 press release from the
Queens County District Attorney Brown (the “DA Brown’s press
release”) (Defs.’ Mem. of Law in Supp. of their Mot. to Dismiss
12
(“Defs.’ Mem.”), Exh. B, ECF No. 57-1) and the New York Civilian
Complaint Review Board (“CCRB”) Investigative Report (the “CCRB
Report”) dated December 12, 2013 (Pl.’s Mem. of Law in Opp. to
Defs.’ Mot. to Dismiss (“Pl.’s Mem.”), Exh. A, ECF No. 67-1).
In the amended complaint’s allegations of “slander and
libel per se” in count XIV, plaintiff alleges that “the City by
and through public statements issued by DA Brown, ADA Crusco,
ADA O’Leary and Commissioner Kelly damaged Judge Raffaele’s
reputation . . . .”
(Am. Compl. ¶ 255.)
Plaintiff also quotes
DA’s Brown press release in the amended complaint. (Am. Compl. ¶
157.)
Consequently, the court considers DA Brown’s press
release in deciding defendants’ motion to dismiss, because
plaintiff has “relied on” the press release in bringing his
defamation claim by alleging that the press release contains
defamatory statements.
The court, however, declines to consider the CCRB
Report because the amended complaint did not attach the CCRB
Report, the CCRB Report was not incorporated by reference into
the amended complaint, and the amended complaint does not rely
on the “terms and effect” of the report.
The amended complaint
alleges that Judge Raffaele filed a complaint with the CCRB and
describes investigative steps taken (or allegedly not taken) by
the CCRB, but the amended complaint does not make any reference
to the CCRB Report findings.
In any event, the court may not
13
take judicial notice of the CCRB Report, which is not a public
document whose “accuracy cannot reasonably be questioned.”1
R. Evid. 201(b)(2).
Fed.
Even if the court were to take judicial
notice of the CCRB Report, it can only do so “in order to
determine what statements [the document] contained . . . ‘not
for the truth of the matters asserted.’”
Roth v. Jennings, 489
F.3d 499, 509 (2d Cir. 2007)(quoting Kramer v. Time Warner,
Inc., 937 F.2d 767, 774 (2d Cir. 1991)).
In his opposition,
plaintiff offers certain CCRB Report findings to substantiate
his allegations, thus improperly attempting to introduce the
CCRB Report findings for the truth of the matters asserted
therein.
Similarly, the court will not consider plaintiff’s
assertion, made for the first time in plaintiff’s opposition
memorandum, that, based on the CCRB Report, the City had notice
that Officer Samot “may have used excessive force in violation
of citizens’ protected constitutional rights and would likely do
so again.”
(Pl.’s Mem. at 17.)
For the foregoing reasons, the
court declines to rely on the CCRB Report in deciding the
instant motion.
1
The parties marked the CCRB Report as confidential pursuant to the
Protective Order stipulated to by the parties and “so ordered” by the
Magistrate Judge supervising discovery. The parties sought to file the CCRB
Report under seal. (See ECF Nos. 54, 60, 61.) In plaintiff’s letter dated
June 2, 2014, he asserted that the CCRB Report “is not a Public Record.”
(ECF No. 60.) Although the court denied the parties’ motion to file the CCRB
Report under seal (ECF No. 62), that the redacted version of the CCRB Report
is now accessible by the public has no bearing on whether the accuracy of the
CCRB Report can or cannot be reasonably questioned and whether the court may
consider it in deciding the moving defendants’ motion.
14
DISCUSSION
The court addresses moving defendants’ motion to
dismiss plaintiff’s claims for denial of access to the court;
conspiracy pursuant to 42 U.S.C. §§ 1983, 1985, and 1986;
supervisory liability; municipal liability; and defamation in
turn.2
I.
Denial of Access to the Courts in Violation of § 1983
(Count IV)
“The Supreme Court has grounded the right of access to
the courts in the Privileges and Immunities Clause of Article
IV, the Petition Clause of the First Amendment, the Due Process
Clauses of the Fifth and Fourteenth Amendments, and the Equal
Protection Clause of the Fourteenth Amendment.” Bourdon v.
2
Plaintiff failed to address the moving defendants’ arguments seeking to
dismiss plaintiff’s prima facie tort claim and the claims against the
District Attorney defendants. Consequently, the court deems plaintiff’s
prima facie tort claim and the claims against the District Attorney
defendants to be abandoned and they are hereby dismissed. See Moccio v.
Cornell Univ., No. 09–CV–3601, 2009 WL 2176626, at *4 (S.D.N.Y. July 21,
2009) (“Whatever the merit of [the defendants'] argument [for dismissal],
plaintiff has abandoned the ... claim, as her motion papers fail to contest
or otherwise respond to [the] defendants' contention.”), aff'd, 526 F. App'x
124 (2d Cir. 2013); DeVere Grp. GmbH v. Opinion Corp., 877 F. Supp. 2d 67, 70
n.3 (E.D.N.Y. 2012) (deeming two causes of action abandoned because the
“defendants move to dismiss [the plaintiff's] complaint in its entirety” and
the plaintiff did not address those causes of action in opposing the
defendants' motion to dismiss, despite the fact that the defendants had not
discussed the elements of these two claims); cf. Jackson v. Federal Exp., 766
F.3d 189, 198 (2d Cir. 2014) (“[I]n the case of a counseled party, a court
may, when appropriate, infer from a party's partial opposition [to a motion
for summary judgment] that relevant claims or defenses that are not defended
have been abandoned.”). The court has nonetheless considered the moving
defendants’ arguments and authorities regarding he claims of prima facie tort
and the claims against the DA defendants and grants defendants’ motion to
dismiss the claims for the reasons stated in defendants’ submissions.
15
Loughren, 386 F.3d 88, 92 (2d Cir. 2004) (citing Christopher v.
Harbury, 536 U.S. 403, 415 n.12 (2002)).
The Supreme Court in
Christopher v. Harbury divided denial-of-access cases into two
categories: the first category is where a “systemic official
action frustrates a plaintiff or plaintiff class in preparing
and filing suits at the present time”; and the “second category
covers claims not in aid of a class of suits yet to be
litigated, but of specific cases that cannot now be tried (or
tried with all material evidence), no matter what official
action may be in the future.”
536 U.S. at 413-14.
Cases in the
second category that involve so-called backward-looking claims
“do not look forward to a class of future litigation, but
backward to a time when specific litigation ended poorly, or
could not have commenced, or could have produced a remedy
subsequently unobtainable.”
Id. at 414.
Thus, when the access
claim looks backward, “the complaint must identify a remedy that
may be awarded as recompense but not otherwise available in some
suit that may yet be brought.”
Id. at 415.
The Second Circuit, in Sousa v. Marquez, 702 F.3d 124,
128 (2d Cir. 2012), has held that backward-looking right of
access claims, “if recognized, would be available only if the
governmental action caused the plaintiff’s suit to be dismissed
as untimely or if official misconduct was so severe as to render
hollow his right to seek redress.”
16
Id. (internal quotations and
citations omitted).
Claims based on withholding or fabrication
of facts “are available only if a judicial remedy was completely
foreclosed by the false statement or nondisclosure.”
(internal quotations and citations omitted).
Id.
The Second Circuit
further notes that “when a plaintiff in a backward-looking
access suit alleges that the government concealed or manipulated
relevant facts, the claim may not proceed if the plaintiff was,
at the time of the earlier lawsuit, aware of the facts giving
rise to his claim . . . because a plaintiff who has knowledge of
the facts giving rise to his claim and an opportunity to rebut
opposing evidence does have adequate access to a judicial
remedy.”
Id.
(emphasis in original).
“The point of the
backward-looking right of access [claims] recognized by other
circuits is to ensure that plaintiffs have that opportunity—not
to convert every instance of deception by a government witness
into a separate federal lawsuit.”
Id. at 128-29.
Here, the amended complaint fails to state a claim for
denial of access to the courts.
The amended complaint does not
identify a judicial remedy that may have been awarded to
plaintiff but was not otherwise available because of the NYPD’s
alleged cover-up of Officer Samot’s conduct.
Here, Judge
Raffaele has been aware of the relevant facts needed to seek
redress throughout the investigations by the Queens County
District Attorney’s office, the CCRB, and NYPD Internal Affairs,
17
because he was present at the June 1, 2012 incident and took
steps to rebut opposing evidence by maintaining his version of
the incident, seeking out more information about the incident,
meeting with investigators and prosecutors, and providing the
contact information of other eyewitnesses to corroborate his
version of events.
To the extent Judge Raffaele asserts that he
was prejudiced by the NYPD’s initial failure to disclose Officer
Samot’s name, this argument does not give rise to a claim of
denial of access to the courts, because he has failed to
identify any judicial remedy that has been foreclosed due to
this delay.
Judge Raffaele has been able to timely file his
claims against Officer Samot and other defendants stemming from
the June 1, 2012 incident in federal court.
Consequently,
plaintiff’s claim of denial of access to the courts is
dismissed.3
II.
Conspiracy in Violation of § 1983 (Count V)
In the context of a § 1983 conspiracy claim, a
plaintiff must allege “(1) an agreement between two or more
state actors or between a state actor and a private entity; (2)
to act in concert to inflict an unconstitutional injury; and (3)
3
To the extent that plaintiff alleges a claim based on the Queens County DA’s
failure to prosecute, it is also dismissed, because plaintiff, as a private
citizen, lacks standing to bring a claim for failure to prosecute another.
Esposito v. New York, 355 F. App’x 511, 512 (2d Cir. 2009)(“[A] citizen lacks
standing to contest the policies of the prosecuting authority when he himself
is neither prosecuted nor threatened with prosecution.”)(quoting Linda R.S.
v. Richard D., 410 U.S. 614, 619 (1973)).
18
an overt act done in furtherance of that goal causing damages.”
Pangburn v. Culbertson, 200 F.3d 65, 72 (2d Cir. 1999).
Although “conclusory allegations” of a § 1983 conspiracy are
insufficient, Jean-Laurent v. Wilkerson, 461 F. App’x 18, 22
(2nd Cir. 2012)(quoting Davis v. New York, 316 F.3d 93, 100
(2002)), the Second Circuit has “recognized that such
‘conspiracies are by their very nature secretive operations,’
and may have to be proven by circumstantial, rather than direct,
evidence.”
Pangburn v. Culbertson, 200 F.3d 65, 72 (2d Cir.
1999)(quoting Rounseville v. Zahl, 13 F.3d 625, 632 (2d Cir.
1994)). “[A] claim of conspiracy to violate a constitutional
right cannot be maintained where no constitutional right was
violated.”
Manbeck v. Micka, 640 F. Supp. 2d 351, 378 (S.D.N.Y.
2009)(citing Singer v. Fulton Cnty. Sheriff, 63 F.3d 110, 119
(2d Cir. 1995)(“[A]lthough the pleading of a conspiracy will
enable a plaintiff to bring suit against purely private
individuals, the lawsuit will stand only insofar as the
plaintiff can prove the sine qua non of a § 1983 action: the
violation of a federal right.”))
The amended complaint alleges that defendants
“orchestrated a cover-up to insulate Officer Samot” which
included, inter alia, fabricating allegations that Judge
Raffaele acted aggressively and stepped within the security
perimeter, discouraging witnesses to speak truthfully through
19
the use of intimidation, and giving false statements.
Compl. ¶ 173.)
(Am.
These factual allegations all relate to
plaintiff’s claim that defendants conspired to violate
plaintiff’s constitutional right of access to the courts (as
opposed to other alleged constitutional violations of excessive
force or failure to intercede).
As the court has previously
discussed in Part II, plaintiff fails to allege any violation of
his constitutional right to access the courts.
Consequently,
plaintiff’s conspiracy claim based on denial of access to the
courts in violation of § 1983 is dismissed for failing to allege
any underlying violation of his constitutional right to access
the courts.
The court notes that the amended complaint does not
allege any conspiracy to commit the other alleged constitutional
violations of excessive force and failure to intercede.
III. Conspiracy in Violation of §§ 1985 and 1986 (Counts VI,
VII, VIII)
Section 1985(2) permits a private party to bring suit
If two or more persons in any State or Territory
conspire to deter, by force, intimidation, or threat,
any party or witness in any court of the United States
from attending such court, or from testifying to any
matter pending therein, freely, fully, and truthfully,
or to injure such party or witness in his person or
property on account of his having so attended or
testified . . . ; or if two or more persons conspire
for the purpose of impeding, hindering, obstructing,
or defeating, in any manner, the due course of justice
in any State or Territory, with intent to deny to any
citizen the equal protection of the laws, or to injure
20
him or his property for lawfully enforcing, or
attempting to enforce, the right of any person, or
class of persons, to the equal protection of the laws.
The first clause of Section 1985(2) prohibits conspiracies to
obstruct justice in federal courts, while the second clause
“applies to conspiracies to obstruct the course of justice in
state courts” with the intent to deny to any citizen the equal
protection of the laws.
Kush v. Rutledge, 460 U.S. 719, 725
(1983); 42 U.S.C. § 1985(2).
Unlike the first clause, which
“outlaws all interference with any person's attempt to attend
federal court,” Keating v. Carey, 706 F.2d 377, 385 (2d Cir.
1983)(emphasis in original), the second clause explicitly
requires that conspirators' actions “be motivated by an intent
to deprive their victims of equal protection of the laws.”
“This requirement has been interpreted to mean that plaintiff
must allege discriminatory ‘racial, ethnic, or class-based
animus’ motivating the conspirators' action.”
Simon v. City of
New York, No. 12-CV-1596, 2012 WL 4863368, at *4 (E.D.N.Y. Oct.
11, 2012) (quoting Zemsky v. City of New York, 821 F.2d 148, 151
n.4 (2d Cir. 1987)).
Here, the amended complaint alleges that defendants
“refrained and dissuaded witnesses from giving true and/or
accurate statements regarding the incident that occurred on June
1, 2012 if approached by State and/or Federal Investigators.”
(Am. Compl. ¶ 200.)
Although the amended complaint does not
21
allege that there was any ongoing federal investigation of the
June 1, 2012 incident, it does allege that Judge Raffaele
reached out to the Queens County District Attorney’s Office,
NYPD Internal Affairs, and the CCRB in the days following the
June 1, 2012 incident, and that subsequent investigations by
those offices were commenced.
(See Am. Compl. ¶¶ 110-11.)
Plaintiff fails to allege any facts that a federal investigation
was ongoing, but instead alleges in conclusory and hypothetical
language that defendants attempted to interfere with a federal
investigation.
This allegation is insufficient to state a claim
to relief that is plausible on its face.
Thus, any claim based
on an alleged conspiracy to interfere with a federal court
proceeding is dismissed.
See, e.g., White v. St. Joseph’s
Hosp., 369 F. App’x 225, 226 (2d Cir. 2010)(“Insofar as
[plaintiff] sought to bring an action pursuant to 42 U.S.C. §
1985, she provided merely conclusory, vague, or general
allegations of conspiracy to deprive her of constitutional
rights which are insufficient to support a claim under § 1985.”)
The amended complaint also fails to state a claim of
conspiracy pursuant to the second clause of § 1985, because it
fails to allege any “racial, ethnic, or class-based animus”
motivating defendants’ actions.
Thus, plaintiff’s claims based
on the second clause of § 1985 to obstruct “the due course of
justice . . . with intent to deny to any citizen the equal
22
protection of the laws” is also dismissed.
See Zemsky, 821 F.2d
at 151 & n. 4 (2d Cir. 1987) (section 1985(2) conspiracy to
interfere with state court proceedings requires a deprivation of
plaintiff's rights “on account of his membership in a particular
class of individuals”); Simon, 2012 WL 4863368, at *5
(dismissing claim based on the second clause of § 1985(2)
because plaintiff “failed to allege that any defendant harbored
an intent to discriminate”).
Consequently, plaintiff’s
conspiracy claims pursuant to §§ 1985 and 19864 are dismissed.
IV.
Supervisory Liability (Count IX)
It is the well settled that a claim brought under §
1983 must allege the personal involvement of each defendant.
See Ashcroft v. Iqbal, 556 U.S. 662, 676 (2009); Grullon v. City
of New Haven, 720 F.3d 133, 138 (2d Cir. 2013) (collecting
Second Circuit cases).
A plaintiff can plead a defendant’s
personal involvement by showing any of the following five
courses of conduct:
(1) the defendant participated directly in
the alleged constitutional violation, (2)
the defendant, after being informed of the
violation through a report or appeal, failed
to remedy the wrong, (3) the defendant
created a policy or custom under which
unconstitutional
practices
occurred,
or
allowed the continuance of such a policy or
custom,
(4)
the
defendant
was
grossly
4
Any claim under § 1986 must fail when plaintiff’s § 1985 claim fails.
White, 369 F. App’x at 226 (“Insofar as [plaintiff] sought to state a claim
under 42 U.S.C. § 1986, this claim necessarily failed because she failed to
state a claim under § 1985.”)
23
negligent in supervising subordinates who
committed the wrongful acts, or (5) the
defendant exhibited deliberate indifference
by failing to act on information indicating
that unconstitutional acts were occurring.
Colon v. Coughlin, 58 F.3d 865, 873 (2d Cir. 1995).5
“Conclusory
accusations regarding a defendant's personal involvement in the
alleged violation, standing alone, are not sufficient . . . and
supervisors cannot be held liable based solely on the alleged
misconduct of their subordinates.”
Kee v. Hasty, No. 01 Civ.
2123, 2004 WL 807071, at *12 (S.D.N.Y. Apr. 14, 2004) (internal
citations omitted).
“[A]llegations as to defendants' knowledge
of alleged constitutional violations [are] insufficient to
impose supervisory liability” under § 1983 unless accompanied by
allegations that the defendants had direct responsibility for
monitoring the alleged violation or that there had been a
“history of previous episodes” putting the defendants on notice
of the problem.
Candelaria v. Coughlin, No. 91 Civ. 1117, 1991
WL 113711, at *2 (S.D.N.Y. June 11, 1991) (citations omitted).
Defendants move to dismiss supervisory liability
claims against Commissioner Kelly.6,7
The amended complaint
5
The Second Circuit has yet to determine the contours of the supervisory
liability test after Iqbal. See Jamison v. Fischer, --- F. App’x ---, 2015
WL 3953399, at *1 n.1 (2d Cir. June 30, 2015)(quoting Grullon, 720 F.3d 139,
which noted that Iqbal “may have heightened the requirements for showing a
supervisor’s personal involvement with respect to certain constitutional
violations”). In any event, plaintiff’s supervisory allegations against
Commissioner Kelly fail under both Colon and Iqbal.
6
The moving defendants also move to dismiss supervisory liability claims
against the District Attorney defendants, but the court need not address
these arguments, because the court has already dismissed the claims against
24
fails to allege a supervisory liability claim against
Commissioner Kelly.
The amended complaint does not allege that
Commissioner Kelly had direct responsibility for monitoring the
incident on June 1, 2012 and the allegations that “NYPD
Commanding Personnel received complaints about the conduct of
Officer Samot and other officers” are conclusory and lack the
requisite factual content to establish facial plausibility.
(Am. Compl. ¶ 214.)
Consequently, plaintiff’s supervisory
liability claims against Commissioner Kelly are dismissed.
V.
Municipal Liability (Count X)
To state a claim for relief against a municipal
defendant pursuant to 42 U.S.C. § 1983, a plaintiff must allege
the existence of an officially adopted policy or custom that
caused injury and a direct causal connection between that policy
or custom and the deprivation of a constitutional right.
Bd. of
Cnty. Comm’rs of Bryan Cnty., Okl. v. Brown, 520 U.S. 397, 40304 (1997) (citing Monell v. New York City Dep't of Social
Servs., 436 U.S. 658 (1978)).
“Proof of a single incident of
the District Attorney defendants because plaintiff has abandoned his claims
against the District Attorney defendants by failing to oppose moving
defendants’ absolute immunity arguments and for the reasons stated in the
moving defendants’ submissions.
7
The moving defendants’ do not appear be moving dismiss the supervisory
liability claims against Sergeant Rzonca, Sergeant Taormina, and Sergeant
Addesso. In the section of the moving defendants’ Memorandum of Law that
addresses supervisory liability, the moving defendants only address the
supervisory liability claims against DA Brown and Commissioner Kelly. (See
Defs.’ Mem at 12-13.) In the preliminary statement, the moving defendants do
not indicate they are moving on behalf of Sergeant Rzonca, Sergeant Taormina,
and Sergeant Addesso. (See id. at 1.) Accordingly, the court construes the
motion to dismiss the claims for supervisory liability only as to
Commissioner Kelly and the District Attorney defendants.
25
unconstitutional activity is not sufficient to impose liability
under Monell unless proof of the incident includes proof that it
was caused by an existing, unconstitutional municipal policy,
which policy can be attributed to a municipal policymaker.”
City of Oklahoma City v. Tuttle, 471 U.S. 808, 823–24 (1985);
see also Hartnagel v. City of New York, No. 10–cv–5637, 2012 WL
1514769, at *4 (E.D.N.Y. Apr. 30, 2012) (single incident
involving actor below policy-making level cannot give rise to
Monell liability).
The amended complaint alleges that the City maintains
a policy and custom of “inadequately investigat[ing] civilian
complaints describing NYPD misconduct and . . .
inadequately
punish[ing] NYPD Police Officers when the civilian complaints
are substantiated.”
(Am. Compl. ¶ 221.)
Specifically, the
amended complaint alleges that, inter alia, no witness
statements were taken at the time of the incident, acts of
brutality were resolved “with a slap on the wrist,” the NYPD
took “unreasonable amounts of time to interview” suspected
officers, that the District Attorney’s office did not interview
any civilian witnesses prior to informing Judge Raffaele that no
charges would be brought against Officer Samot, and that the
first civilian witness was not interviewed until approximately
six weeks after the incident.
(See Am. Compl. ¶¶ 221-240.)
Plaintiff’s municipal liability claim relates entirely to the
26
NYPD’s investigation of the June 1, 2012 incident, not any
officially adopted City policy that caused the alleged assault
itself.
Thus, to the extent that plaintiff alleges that the
constitutional violation for which the City is liable is
plaintiff’s denial of access to the courts, for the reasons
previously discussed, plaintiff’s underlying claim of denial of
access to the courts fails as a matter of law, and therefore,
plaintiff’s claim for municipal liability also fails.8
See Segal
v. City of New York, 459 F.3d 207, 219 (2d Cir. 2006)(“Because
the district court properly found no underlying constitutional
violation, its decision not to address the municipal defendants’
liability under Monell was entirely correct.”)
Furthermore, to
the extent the amended complaint could be construed to allege a
claim of municipal liability for the excessive force violation,
plaintiff has failed to adequately allege that this single
incident of excessive force by Officer Samot “includes proof
that it was caused by an existing, unconstitutional municipal
policy.”
Tuttle, 471 U.S. at 824.
8
Plaintiff alleges that the City failed to train NYPD police officers “who
witnessed and/or have information regarding misconduct by fellow officers”
and failed to discipline NYPD police officers “who are aware of and
subsequently conceal and/or aid and abet violations of citizens’
constitutional rights by other NYPD Police Officers.” (Am. Compl. ¶¶ 23536.) The failure to train and failure to discipline theories of municipal
liability are also unavailing, because they allege practices that caused no
constitutional injury. Additionally, these allegations are conclusory and
boilerplate and fail to point to any “specific deficiency” in the City’s
training program establishing that the deficiency “actually caused” any
constitutional deprivation. Amnesty Am. v. Town of W. Hartford, 361 F.3d
113, 129-30 (2d Cir. 2004).
27
VI.
False and/or Fraudulent Statements (Count XIII) and Slander
and Libel (Count XV)9
In Count XIII, plaintiff alleges that defendants’
false statements regarding the incident on June 1, 2012 “denied
[him] his constitutional rights and insulated Officer Samot from
facing any discipline.”
(Am. Compl. ¶¶ 249-50.)
The
allegations in Count XIII closely overlap with the allegations
in Counts IV to X which have been dismissed.
Consequently, for
the same previously stated reasons, Count XIII alleging false
and/or fraudulent statements is also dismissed.
In Count XV, plaintiff alleges that defendants made
false oral and written statements that “questioned [his]
integrity” and “prevented an honest investigation.”
¶¶ 255-59.)
(Am. Compl.
Under New York law, in order to state a claim for
defamation, a plaintiff must allege: (1) a false and defamatory
statement of fact, (2) concerning the plaintiff, (3) published
without privilege or authorization to a third party by the
defendant, (4) constituting fault as judged by, at a minimum, a
negligence standard, and (5) causing special harm or
constituting defamation per se.
See, e.g., Salvatore v. Kumar,
845 N.Y.S.2d 384, 388 (N.Y. App. Div. 2007); Tannerite Sports,
LLC v. NBCUniversal Media LLC, No. 15-cv-2343, 2015 WL 5783811,
at *6 (S.D.N.Y. Oct. 1, 2015).
9
The amended complaint mis-numbers Count XV as Count XIV due to an error
numbering two claims as Count XIII. The court has corrected the error and
refers to the allegations for slander and libel as Count XV.
28
The pleading standard for a defamation action brought
in federal court is governed by Rule 8 of the Federal Rules of
Civil Procedure, which provides that "[e]ach allegation [of a
pleading] must be simple, concise, and direct.
form is required."
Fed. R. Civ. P. 8(d)(1).
No technical
While the federal
rules do not require the particularized pleading requirements
set forth in New York's C.P.L.R. section 3016, see Geisler v.
Petrocelli, 616 F.2d 636, 640 (2d Cir. 1980), Rule 8 still
requires that each pleading be specific enough to "afford
defendant sufficient notice of the communications complained of
to enable him to defend himself."
Kelly v. Schmidberger, 806
F.2d 44, 46 (2d Cir. 1986).
The amended complaint alleges in Count XV that “public
statements issued by DA Brown, ADA Brusco, ADA O’Leary and
Commissioner Kelly damaged Judge Raffaele’s reputation by
falsely claiming orally and/or in writing that Judge Raffaele
acted aggressively and illegally toward the NYPD Police Officers
by forcefully entering into a safety perimeter setup by NYPD
Police Officers at the site of the June 1, 2012 incident.”
Compl. ¶ 255.)
(Am.
Plaintiff also alleges that all defendants
damaged his reputation by making written and oral statements
that questioned his integrity, honesty and/or reliability and
“prevented an honest investigation to reveal the truth”
regarding the Jun 1, 2012 incident.
29
(Id. ¶ 256.)
Allegedly,
the offending written and oral statements “adversely effected
[sic] and/or raise the inference” that plaintiff lacks the
integrity to carry out his duties as a New York Supreme Court
Justice and that he has lost “present and future income.”
¶¶ 258-59.)
(Id.
Other than DA Brown’s press release dated August
22, 2012, the amended complaint does not identify any other
allegedly false words that were actually spoken or published.10
Specifically, the allegedly defamatory statement of fact arises
from the following sentence of the DA’s press release:
“The
alleged assault occurred in a safety perimeter that police
officers attempted to establish around the incident to contain
Mr. Menninger and separate him from the growing crowd.”
(Defs.’
Mem., Exh. B, ECF No. 57-2.)
“Whether particular words are reasonably capable of
being read as defamatory is a threshold question of law to be
determined by the court.”
Mondello v. Newsday, Inc., 6 A.D.3d
586, 587, 774 N.Y.S.2d 794 (N.Y. App. Div. 2004)(citing James v.
Gannett Co., 353 N.E.2d 834 (N.Y. 1976)).
“A defamatory
statement of fact is one that ‘tends to expose the plaintiff to
public contempt, ridicule, aversion, or disgrace or induce an
10
To the extent plaintiff’s allegations encompass other allegedly defamatory
statements, they are dismissed pursuant to Federal Rule of Civil Procedure
Rule 8, because the amended complaint fails to identify the statements, the
defendant making the statements, or even the general time frame during which,
or location at which, they were spoken or published. See Bobal v. Rensselaer
Polytechnic Inst., 916 F.2d 759, 763 (2d Cir. 1990)(affirming district
court’s dismissal of defamation claim where plaintiff failed to plead
adequately the actual words spoken, publication or special damages).
30
evil opinion of him in the minds of right-thinking people to
deprive him of their friendly intercourse in society.’”
Ferlito
v. Cnty. of Suffolk, No. 06-cv-5708, 2007 WL 4180670, at *4
(E.D.N.Y. Nov. 19, 2007)(quoting Rinaldi v. Holt, Rinehardt &
Winston, Inc., 42 N.Y.2d 369, 379 (1977)).
When determining
whether a statement is defamatory, “[c]ontext is key,” and
“[t]he dispositive inquiry is whether a reasonable reader could
have concluded that the article[ ] w[as] conveying [defamatory]
facts.”
Finkel v. Dauber, 906 N.Y.S.2d 697, 701, 702 (N.Y. Sup.
Ct. 2010) (internal emphasis, brackets, and quotation marks
omitted); see also Gross v. N.Y. Times Co., 623 N.E.2d 1163,
1167 (N.Y. 1993) (noting that the facts a reasonable reader
would have concluded were being conveyed must be defamatory).
Here, the court finds that a reasonable reader could
not have concluded that the DA’s press release was conveying any
defamatory facts.
The Brown press release clearly articulates
that the district attorney’s office found “insufficient evidence
of criminality” to support criminal charges, citing the
reasonable doubt standard, and briefly provides the factual
bases for its determination.
(Defs.’ Mem., Exh. B.)
In this
context, the statement in the Brown press release that Judge
Raffaele’s alleged assault occurred “in a safety perimeter” does
not, in any way, suggest that Judge Raffaele was acting
“aggressively and illegally” toward NYPD officers nor that he
31
“forcefully” entered the safety perimeter as the amended
complaint alleges.
(See Am. Compl. ¶ 255.)
Nor does the press
release raise an inference that Judge Raffaele lacks the
“integrity, honesty and/or reliability to carry out his duties
as a Supreme Court Justice for the State of New York.”
¶ 258.)
(Id. at
In fact, the statement that Judge Raffaele’s alleged
assault “occurred in a safety perimeter” does not even describe
how Judge Raffaele came to be within the safety perimeter,
whether it was by his own action or whether it was because
police officers encircled him.
In any event, a reasonable
reader could not have concluded that these statements were
conveying “public contempt, ridicule, aversion, or disgrace or
induc[ing] an evil opinion of [Judge Raffaele] in the minds of
right-thinking people.”
Consequently, plaintiff’s claims for
slander and libel fail as a matter of law, and they are
dismissed.
CONCLUSION
For the foregoing reasons, the court grants the moving
defendants’ motion to dismiss in its entirety and plaintiff’s
following claims are hereby dismissed: (1) conspiracy claims
pursuant to §§ 1983, 1985, and 1986 (Counts I, V, VI, VII and
VIII); (2) denial of access claim pursuant to § 1983 (Count IV);
(3) supervisory liability claim against Commissioner Kelley
(Count IX); (4) municipal liability claim (Count X); (5) prima
32
facie tort claim (Count XII);
(6) slander and libel claims
(Counts XIII and XV); and (7) all claims against the District
Attorney defendants.
“When a motion to dismiss is granted, the usual
practice is to grant leave to amend the complaint.”
Ronzani v.
Sanofi S.A., 899 F.2d 195, 198 (2d Cir. 1990) (citation and
internal quotation marks omitted).
Leave to amend, however,
should be denied in situations where the amendment would be
futile, see Acito v. IMCERA Group, Inc., 47 F.3d 47, 55 (2d Cir.
1995), or otherwise unproductive.
See Ruffolo v. Oppenheimer &
Co., 987 F.2d 129, 131 (2d Cir. 1993)(per curiam).
Plaintiff
has not requested leave to amend his complaint a second time nor
detailed any proposed amendments.
well underway in this case.
Additionally, discovery is
Consequently, in the absence of any
request or proposals by plaintiff, the court denies leave to
amend at this time.
If plaintiff intends to amend his
complaint, he must make his request including his proposed
amendments within 14 days of entry of this Memorandum and Order.
SO ORDERED.
Dated:
October 30, 2015
Brooklyn, New York
___________/s/______________
Kiyo A. Matsumoto
United States District Judge
33
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