Alwan v. The City of New York et al

Filing 51

MEMORANDUM & ORDER, Defendants' motion for partial summary judgment is GRANTED IN PART and DENIED IN PART. The court dismisses the following claims with prejudice: Plaintiff's fourth (Monell) cause of action; Plaintiff's fifth cause of action (New York State equal protection), to the extent this claim is asserted against Nelson and Hernandez; Plaintiff's sixth cause of action (New York State search and seizure and excessive force), to the extent he alleges that Nelson and Hernandez subjected him to an unreasonable search and seizure or that any Defendant used, or is vicariously liable for the use of, excessive force against him; Plaintiff's seventh cause of action (IIED); Plaintiff's tenth cause of acti on (negligence); and Plaintiff's eleventh cause of action (negligent hiring and retention). Furthermore, the court dismisses all claims against the NYPD with prejudice. The court denies Defendants' motion for summary judgment with respect to Plaintiff's New York State equal-protection and search-and-seizure claims, to the extent he asserts these claims against the City under a theory of respondeat superior. So Ordered by Judge Nicholas G. Garaufis on 5/01/2018. (Lee, Tiffeny)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
-X

ABDULGALIL KAID ALWAN,

MEMORANDUM & ORDER

Plaintiff,

14-CV-4556(NGG)
(VMS)

-against-

THE CITY OF NEW YORK;NEW YORK CITY
POLICE DEPARTMENT;NICHOLAS NELSON;and
JESSICA HERNANDEZ,
Defendants.
-X

NICHOLAS G. GARAUFIS,United States District Judge.

Plaintiff Abdulgalil Alwan's son was involved in a traffic accident and called his father to
the scene ofthe accident. While Plaintiff was waiting with his son, he was confronted by New

York City Police Department("NYPD")officers Nicholas Nelson and Jessica Hernandez,
arrested, briefly detained, and cited for disorderly conduct and disobeying a lawful order. (Defs.
Statement of Material Facts ("Defs. 56.1")(Dkt. 43)

5-21.) Plaintiff subsequently filed this

suit, which alleges, among other things,that Nelson and Hernandez violated various of his rights
under the U.S. and New York State constitutions and New York tort law. (Compl.(Dkt. 1).)

Before the court is Defendants' motion for partial summary judgment as to Plaintiff's claims

against the NYPD,his claims under the New York State Constitution, his claims under 42 U.S.C.
§ 1983 against the City ofNew York, and his intentional-infliction-of-emotional-distress

('TIED") and negligence claims. (Defs. Mot. for Partial Summ. J.(Dkt. 41); Defs. Mem.in
Supp. of Mot. for Partial Summ. J.("Defs. Mem.")(Dkt. 42).) For the reasons that follow.
Defendants' motion for partial summary judgment is GRANTED IN PART and DENIED IN
PART.

1

I.

BACKGROUND

A. Factual History

The following statement offacts is largely taken from the parties' Local Rule 56.1
statements and deposition testimony, with the evidence "constru[ed]...in the light most
favorable to the non-moving party." Wandering Dago. Inc. v. Destito. 879 F.3d 20,30

(2d Cir. 2018)(internal quotation marks and citation omitted). (See Defs. 56.1; PI. Resp. to
Defs. 56.1 ("PI. 56.1 Resp.)(Dkt. 45 at EOF pp.1-3); PL Counterstatement of Material Facts("PI.
56.1 Counterstatement")(Dkt. 45 at EOF pp.3-15); Defs. Resp. to PI. Counterstatement of
Material Facts ("Defs. 56.1 Reply")(Dkt. 49).)

On September 8, 2013,Plaintiffs teenaged son was riding in a car that was struck by
another vehicle. (Defs. 56.1 ^ 5.) The son called Plaintiff, who came to the scene ofthe
accident. (Id

6-7.)

Soon afterwards, Hernandez and Nelson arrived at the scene ofthe accident as well. (Id

9-10.) According to Plaintiff, Nelson immediately began shouting at everyone present to
move back. (PI. 56.1 Counterstatement H 3; PI. Dep. Tr.(Dkt. 47-2) 30:7-8, 35:2-11.) Nelson
asked Plaintiff if Plaintiff had been in one ofthe cars involved in the accident; when Plaintiff

said that he was not. Nelson allegedly pushed him back. (PI. Dep. Tr. 38:25-39:4.) Plaintiff
allegedly then told Nelson that Plaintiffs son had been in the accident, that the son was scared,
and that Plaintiff needed to remain with him. (Id 35:12-36:11, 36:18-37:13.) According to
Plaintiff, Nelson then asked him for identification and, while Plaintiff was trying to get his

identification, pushed him "so hard," twisted his arm,threw him up against a wall, and, with
Hernandez's help, handcuffed him. (Defs. 56.1 ^15;PI. 56.1 Counterstatement

4-5; PI. Dep.

Tr. 36:13-17, 37:14-38:13, 38:25-39:10.) Nelson then allegedly threw Plaintiff to the ground,

dragged him by the handcuffs to a police car, slammed him against the police car, put him in the
2

back seat ofthe car, and punched him repeatedly in the torso. (Defs. 56.1 K

PI. 56.1

Counterstatement Hlf 6-7; PI. Dep. Tr. 39:24-40:1, 43:18-22, 45:19-46:4, 47:16-48:5, 50:352:18.) While allegedly punching Plaintiff, Nelson asked where Plaintiff was from; when

Plaintiff responded that he was from Yemen,Nelson allegedly said that "in Yemen they spit in
your face." (PI. 56.1 Counterstatementf 9; PI. Dep. Tr. 52:19-24.) Meanwhile, Hernandez, who
was sitting in the front ofthe cruiser, allegedly asked Plaintiff"was this worth it[?]" (PI. 56.1

Counterstatement K 10; PI. Dep. Tr. 53:22-54:1.)^
When two other officers arrived at the scene, Nelson allegedly uncuffed Plaintiff and told
him that he was lucky that the other officers had arrived to rescue him. (PI. 56.1

Counterstatement H 13; PI. Dep. Tr. 60:13-15.) Plaintiff was cited for disorderly conduct and
released, and he promptly headed to the 66th Precinct to file a complaint. (PL 56.1 Resp. K 20;
PI. 56.1 Counterstatement 117;PI. Dep. Tr. 63:13-16, 64:16-18.) The disorderly-conduct
charged was subsequently dismissed (Defs. 56.1 ^ 21; PI. Dep. Tr. 55:16-56:25), and two police
officers(whose names he could not remember)allegedly visited his home several months later to
apologize for his mistreatment and to say that Nelson needed additional training (PI. 56.1
Counterstatement 18; PI. Dep. Tr. 116:25-118:11).

^ In their depositions, Hernandez and Nelson offered a different account ofthe incident. They testified that they
arrived on the scene ofthe accident to find that Plaintiff was screaming at the driver ofthe car that hit the car in
which his son was riding, (Nelson Dep. Tr. 39:11-40:22,42:17-43:8; cf Hernandez Dep. Tr. 83:17-23, 84:4-14,
85:23-86:13.) According to the officers, Plaintiffrefused to stop screaming or to provide the officers with
identification. (Nelson Dep. Tr. 45:3-47:5,49:2-8, 51:2-53:12, 60:4-61:7; Hernandez Dep. Tr. 77:5-90:13.) Nelson
and Hernandez both denied that Nelson used significant force to arrest Plaintiff; that Nelson slammed Plaintiff
against a wall, dragged him along the ground, slammed him against a police car, punched him, or referred to
PlaintifPs country of origin in a derogatory way during the incident; or that Hernandez taunted Plaintiff while he
was detained in the back seat ofthe police car. (Nelson Dep. Tr. 61:11-74:24, 85:18-87:21; see also Hernandez
Dep. Tr. 90:14-17, 93:24-94:5, 96:25-97:21, 99:4-100:22.) Nevertheless,"[i]t is a settled rule that 'credibility
assessments, choices between conflicting versions ofthe events, and the weighing of evidence are matters for the
jury, not for the court on a motion for summaryjudgment.'" McClellan v. Smith. 439 F.3d 137, 144(2d Cir. 2006)
(alteration adopted)^quoting Fischl v. Armitaee. 128 F.3d 50,55(2d Cir.1997)). Accordingly,the court must
accept PlaintifPs plausible account ofthe incident as true for purposes ofthis motion.

B. Procedural History

Plaintiff served a notice of claim against the City ofNew York(the "City") and the
NYPD on November 15, 2013,and testified at a hearing held pursuant to Section 50-h ofthe

New York General Municipal Law, (Compl.(Dkt. 1)

7-8.) He thereafter commenced this

action, which asserts twelve claims against the City, NYPD,Hemandez,and Nelson under

42 U.S.C. § 1983 and New York State law. (Id

41-88.) With respect to Plaintiffs claims

under federal law. Plaintiff alleges(1)that Hemandez and Nelson violated his Fourteenth
Amendment right to equal protection ofthe laws by subjecting him to mistreatment based on his
country of origin(id HTj 41-44);(2)that they unreasonably searched and seized him,in violation
ofthe Fourth and Fourteenth Amendments(id UK 45-48);(3)that they used excessive force

against him,in violation ofthe Fourth and Fourteenth Amendments(id KK 49-52); and (4)that
he was injured as a result of municipal customs and policies, such that the City is liable under
Monell V. Department of Social Services. 436 U.S. 658 (1978),for the deprivation of his

constitutional rights(Compl. KK 53-60). With respect to his claims under New York State law.
Plaintiff alleges that Defendants violated his rights under the New York Constitution to the equal

protection oflaw (id KK 61-63)and not to be unlawfully searched and seized or subjected to
excessive force(id K164-66); that Defendants are liable in tort for unlawful infliction of
emotional distress(id KK 67-69), battery(id KK 70-74), assault(id KK 75-78), and negligence,
both in failing to protect him (id KK 79-82)and for hiring and retaining Nelson and Hemandez

(id. KK 83-85); and that the Municipal Defendants are liable under a theory ofrespondeat superior
for all of Hemandez's and Nelson's allegedly unlawful acts(id Kt 86-88).
As noted above. Defendants have moved for partial summary judgment. Defendants do

not seek summary judgment with respect to Plaintiff's § 1983 equal-protection, search-andseizure, or excessive-force claims against Hemandez and Nelson, his state-law assault or battery
4

claims, or his claim that the City is vicariously liable for Hemandez's and Nelson's intentional

torts. (C£ Defs. Mem.at 5-6.) Instead, Defendants only argue in their motion that they are
entitled to summary judgment as to Plaintiff's Monell. state constitutional, DED,and negligence
claims. (Id.)

After Defendants filed their motion for partial summary judgment. Plaintiff withdrew his
New York State constitutional claims against Nelson and Hernandez(PI. Mem.in Opp'n to Mot.

for Partial Summ. J.("PI. Mem.")(Dkt. 46) at 14), his IIED claim (id. at 15), and his negligent-

failure-to-protect claim (id.). Plaintiff refused, however, to withdraw his negligent-training-andsupervision claim "absent a clear concession that Officers Nelson and Hernandez were acting
within the scope oftheir employment" at the time of his arrest. (Id. at 16-17.) Defendants

conceded this point in their reply brief(Defs. Reply in Supp. of Mot. to Dismiss ("Defs. Reply")
(Dkt. 48)at 10), so the parties appear to agree that Plaintiffs state-law negligent-training-andsupervision claim is untenable.

Passucci v. Home Depot. Inc.. 889 N.Y.S.2d 353, 355(App.

Div. 2009)(stating that, under New York law, a negligent-training-and-supervision claim "does
not lie where ...the employee is acting within the scope of his or her employment"(quoting
Drisdom v. Niagara Falls Mem.Med. Ctr.. 861 N.Y.S.2d 919, 921 (App. Div. 2008))).

Thus, only two claims remain in dispute, for purposes ofthis motion;(1)Plaintiffs
Monell claim against the City(Compl.

53-60); and(2)his claims under the New York State

Constitution, to the extent he asserts them against the City under a respondeat superior theory
(id.
n.

61-66, 86-88). The court discusses these claims in turn.
LEGAL STANDARD

The court may enter summary judgment "ifthe movant shows that there is no genuine

dispute as to any material fact and the movant is entitled to judgment as a matter oflaw." Fed.
R. Civ. P. 56(a). On a motion for summary judgment,the court draws all reasonable inferences

and resolves all ambiguities in favor ofthe non-moving party. Anderson v. Liberty Lobby,

Inc.. 477 U.S. 242, 254-55 (1986). The court may enter summary judgment ifthe evidence, so
construed, would not allow a reasonable jury to find in non-movant's favor. Id at 249-50.
III.

DISCUSSION

A. Monell / Failure to Train, Supervise, and Discipline

Although Plaintiff initially asserted a sweeping Monell claim (see Compl.

54, 56-57),

he has since focused this claim on allegations that the City failed to train, supervise, or discipline

its police officers (particularly Nelson)regarding their use offorce, and that this failure
amounted to deliberate indifference to his Fourth Amendment rights. (PI. Opp'n at 7-12.)
Defendants advance several reasons why,in their view. Plaintiff has not shown that he was

injured pursuant to a municipal policy or custom, as is necessary to establish Monell liability.
(Defs. Mem. at 5.) First, they argue, to the extent Plaintiffs Monell claim relies on a failure-totrain theory, he has not identified specific deficiencies with respect to the City's police-officer-

training program or shovm that such deficiency is "closely related to the ultimate injury" Plaintiff
suffered. (Id (quoting Dekuyper v. City ofNew York. No. 14-CV-8249(DLC),2016 WL
7335662(S.D.N.Y. Dec. 16,2016)).) Second,they contend,to the extent this claim relies on a
theory that the City acted with deliberate indifference in failing to supervise or discipline its

officers (particularly Nelson), he has not shown that there was an obvious need for better
supervision or discipline or that any deficiencies in supervision or discipline actually resulted in
the deprivation ofPlaintiffs constitutional rights. (Id; Defs. Reply at 3-4.) The court agrees
with Defendants that Plaintiff has not adduced evidence from which a rational factfinder could

conclude that the City acted with deliberate indifference in failing to train, supervise, or

discipline its police officers(and especially Nelson)regarding the use offorce.

Municipalities cannot be vicariously liable under § 1983 for their employees' acts.

Monell,436 U.S. at 694-95. Instead, municipalities are only liable under § 1983 for
constitutional deprivations resulting from a governmental policy or custom. Id. at 694. A

plaintiff may demonstrate that such a policy or custom exists by introducing evidence of one of
the following:

(1)a formal policy officially endorsed by the municipality;
(2)actions taken by government officials responsible for
establishing the municipal policies that caused the particular
deprivation in question;(3)a practice so consistent and widespread
that, although not expressly authorized, constitutes a custom or
usage of which a supervising policy-maker must have been aware;
or (4)a failure by policymakers to provide adequate training or
supervision to subordinates to such an extent that it amounts to
deliberate indifference to the rights of those who come into contact
with the municipal employees.

Jones V. Westchester Countv. 182 F. Supp. 3d 134, 158(S.D.N.Y. 2016)fquoting Brandon v.

Citv ofNew York. 705 F. Supp. 2d 261, 276-77(S.D.N.Y. 2010)). To prevail on a Monell
claim, a plaintiff must show that "there is a direct causal link between [the] municipal policy or
custom and the alleged constitutional deprivation" he suffered. Citv of Canton v. Harris. 489
U.S. 378, 385 (1989).

When a Monell claim relies on the theory that the municipahty failed to "train certain

employees about their legal duty to avoid violating [individuals'] rights," the plaintiff must show
that the "municipality's failure to train its employees in a relevant respect... amount[ed] to
'deliberate indifference to the rights of persons with whom the [xmtrained employees] came into
contact.'" Connick v. Thompson. 563 U.S. 51,61 (2011)(quoting Canton,489 U.S. at 388).

Likewise, to prevail on a Monell claim based on the theory that the mimicipality failed to
adequately supervise or discipline its employees (thereby implicitly encouraging or ratifying
their unlawful conduct), a plaintiff must show that such a failure ofsupervision or discipline was

tantamount to deliberate indifference. Reynolds v. Giuliani. 506 F.3d 183,192(2d Cir. 2007)
(citing Amnesty Am v. Town of W.Hartford, 361 F.3d 113,127(2d Cir. 2004)(Sotomayor, J.)
(failure to supervise), and Berry y. City of Detroit. 25 F.3d 1342,1354(6th Cir. 1994)(failure to

discipline)): see also Vann y. City of New York. 72 F.3d 1040,1049(2d Cir. 1995)(failure to
superyise); Batista y. Rodriguez. 702 F.2d 393, 397(2d Cir. 1983)(failure to discipline). In this
context,"[d]eliberate indifference is a stringent standard offault, requiring proofthat a
municipal actor disregarded a known or obyious consequence ofhis action." Connick,563 U.S.

at 61 (quoting Bd. of Cty. Comm'rs of Bryan Cty. y. Brown. 520 U.S. 397,410(1997)).
1. Failure to Train

The court first considers whether Plaintiffs Monell claim might be sustainable under the

theory that the City failed to train its police officers in general, or Nelson in particular, in the use
offorce.

To establish that a municipality acted with deliberate indifference for purposes of a
failure-to-train claim, a plaintiff must meet three requirements.
First, the plaintiff must show that a policymaker knows "to a moral
certainty" that her employees will confront a giyen situation. Thus,
a policymaker does not exhibit deliberate indifference by failing to
train employees for rare or unforeseen eyents.

Second, the plaintiff must show that the situation either presents the
employee with a difficult choice of the sort that training or
supervision will make less difficult or that there is a history of
employees mishandling the situation....
Finally, the plaintiff must show that the wrong choice by the city
employee will frequently cause the depriyation of a citizen's
constitutional rights.
Thus, municipal policymakers may
appropriately concentrate training and supervision resources on
those situations where employee misconduct is likely to deprive
citizens of constitutional rights.

Walker v. City ofNew York. 974 F.2d 293, 297-98(2d Cir. 1992)(internal quotation marks and
citations omitted). To make out such a claim, a plaintiff generally must also show that "city

policymakers [were] on actual or constructive notice that a particular omission in their training
program causes city employees to violate citizens' constitutional rights" but nevertheless chose
to retain the program. Connick.563 U.S. at 61-62. "A pattem of similar constitutional
violations by untrained employees is 'ordinarily necessary' to demonstrate deliberate
indifference for failure to train.'" Id. at 62(quoting Brvan County. 520 U.S. at 409).

Additionally, to prevail on a failure-to-train claim, a plaintiff must "identify a specific deficiency
in the city's training program and establish that that deficiency is closely related to the ultimate
injury, such that it actually caused the constitutional deprivation." Wrav v. Citv ofNew York,
490 F.3d 189,196(2d Cir. 2007)fquoting Amnestv Am.. 361 F.3d at 129).

Plaintiff has not produced any pohcy manuals or training materials in support ofthe
theory that the City acted with deliberate indifference in failing to train its officers in the use of
force. (See Defs. Mem. at 5.) Instead, he relies on a 2015 report prepared by the Office ofthe

Inspector General for the NYPD("OIG-NYPD")regarding the NYPD's use offeree (the "IG
Report"), which discusses the City's use-of-force training (Off. ofthe Inspector Gen., N.Y.C.

Dep't ofInvestigation, Police Use ofForce in New York City: Findings and Recommendations
on NYPD's Policies and Practices(2015)(Dkt. 47-19) at 39-44), and on the deposition testimony
ofNelson and Hemandez. In the IG Report, the OIG-NYPD reviewed how the NYPD trains
academy cadets and active-duty officers in the use offorce, ultimately concluding that the NYPD

should both place greater emphasis in training on how to de-escalate tense situations and increase
the police academy's use of"scenario and simulation trainings." (IG Report at 39-44.) In their

depositions, both Hemandez and Nelson were questioned about the use-of-force training they

received as cadets and on the job. While Hernandez gave conflicting testimony about whether
she could remember receiving any such training(compare Hernandez Dep. Tr. 12:11-15, with id.
107:13-17,^id id, 107:22-108:4), Nelson testified that he had received such training both in the

academy and on the job, although he could not remember the precise meaning of"Level II force"
or recall the NYPD Patrol Guide's procedures regarding the use offorce (Nelson Dep. Tr. 14:1721,126:20-127:3; 127:11-128:8,129:2-5,129:19-130:7,130:16-131:4).

After reviewing this evidence,the court cannot discern any "specific deficiency in the

city's training program" that was "closely related" to Plaintiffs alleged injuries. As an initial
matter, the evidence before the court shows that the NYPD does,in fact, train its officers in the
use of excessive force, and that Nelson in particular received such training. Simply alleging that

Nelson used excessive force against Plaintiff does not show that Nelson received inadequate

training about when and how to use force. See, e.g.. Jenkins v. Citv of New York,478 F.3d 76,

95(2d Cir. 2007)("A training program is not inadequate merely because a few ofits graduates
deviate firom what they were taught."). For the same reason, the fact that Nelson could not
remember details about his training—or that Hernandez apparently could not remember anything
about her training—does not show that the training was itself inadequate. While Plaintiff
insinuates that Nelson's on-the-job training was inadequate because it "came in the form of
watching a video tape"(PI. Mem. at 7), Plaintiff offers no evidence that videotapes are a
deficient means oftraining or, even assuming solely for the sake of argument that they are, that
the choice to train Nelson using videotapes, rather than some other means oftraining, was
responsible for Plaintiffs alleged constitutional injuries.

The best evidence in support of Plaintiffs position is the IG Report, which expressly
recommends that the NYPD enhance its training on the de-escalation of hostile encounters. (IG

10

Report at 43-44.) Courts in this district have repeatedly refused, however, to impose Monell
liability on the basis ofthe IG Report. See Hanson v. Citv ofNew York, No. 15-CV-1447

(MKB),2018 WL 1513632, at *21 (E.D.N.Y. Mar. 27,2018)(collecting cases). Even assuming
that the IG Report did establish that the NYPD's training on the de-escalation of hostile
encounters was deficient, however. Plaintiffs failure-to-train claim is nevertheless xmavailing,

because, by his own account, Plaintiff was not interacting with Nelson or Hernandez in a way

that would call for de-escalation. fSee PI. Dep. Tr. 35:2-56:3.) Thus,Plaintiff cannot show that
this specific alleged deficiency in the NYPD's training program is causally connected to his
claimed constitutional injuries.

Because Plaintiff has not produced "evidence of any deficient or absent training program
related to ... excessive force that could have caused the instant alleged violations," he cannot

show that the City acted with deliberate indifference in failing to train its police officers, or

Nelson in particular. See Underwood v. Citv ofNew York. No. 14-CV-7531 (RRM),2018 WL
1545674, at *5(E.D.N.Y. Mar. 28,2018).

2. Failure to Supervise or Discipline

Nor can the City be liable under the theory that it acted with deliberate indifference by

failing to "supervise, monitor and/or discipline" its police officers. (PI. Mem. at 10.) This is
because Plaintiff has not introduced evidence from which a rational factfinder could conclude

that the City deliberately chose not to act in the face of an obvious risk that its police officers(or
Nelson in particular) would use excessive force against members ofthe public.
As with his failure-to-train theory. Plaintiff's failure-to-supervise and failure-to-discipline

theories require him to establish that the City acted with deliberate indifference.

Reynolds.

506 F.3d at 192; Amnesty Am.. 361 F.3d at 127-28. "To prove such deliberate indifference, the
plaintiff must show that the need for more or better supervision to protect against constitutional
11

violations was obvious." Vann v. Citv ofNew York. 72 F.3d 1040,1049(2d Cir. 1995)(citing
Canton. 489 U.S. at 390). "An obvious need may be demonstrated through proof of repeated

complaints of civil rights violations ...." Id.: see Fiacco v. Citv of Rensselaer. 783 F.2d 319,
328(2d Cir. 1986). Plaintiff must also "show that the city was deliberately indifferent to these
obvious constitutional violations." Underwood. 2018 WL 1545674, at *4. "[D]eliberate

indifference may be inferred ifthe complaints are followed by no meaningful attempt on the part

ofthe municipality to investigate or to forestall further incidents." Vann,72 F.3d at 1049. The
municipality's failure to take action must constitute "deliberate indifference, rather than mere
negligence or bureaucratic inaction." Anmestv Am.. 361 F.3d at 128; see also Connick. 563 U.S.

at 61 ("Municipal liability under § 1983 attaches where—and only where—a deliberate choice to
follow a course ofaction is made from among various altematives by the relevant officials."

(alterations adopted)(quoting Pembaur v. Citv of Cincinnati. 475 U.S. 469,483(1986)(op. of

Brennan, J.)).^
a. Police Officers in General
The court first considers whether Plaintiff has demonstrated the existence of a triable

issue as to whether the City turned a blind eye to an obvious risk that NYPD officers often use
excessive force against civilians, thereby evincing the City's deliberate indifference to those
civilians' Fourth Amendment rights. In support ofthis contention. Plaintiff points to the IG
Report, in which the OIG-NYPD analyzed 207 allegations of non-lethal force in 179 cases
between 2010 and 2014 and concluded that, among other things, the NYPD provided insufficient

^ A plaintiff may also show deliberate indifference "through expert testimony that a practice condoned by the
defendant municipality was 'contrary to the practice of most police departments' and was 'particularly dangerous'
because it presented an unusually high risk that constitutional rights would be violated. Vann. 72 F.3d at 1049-50
(quoting Dodd v. Citv ofNorwich. 827 F.2d 1, 4-6(2d Cir.), modified on reh'g on other grounds. 827 F.2d 1, 7(2d
Cir.1987)). Plaintiff has presented no such evidence here.
12

guidance to officers about how to handle confrontations with members ofthe public and

"frequently failed to impose discipline even when provided with evidence of excessive force."
(IG Report at 1, 3-5.) As alluded to above, courts in this circuit have been hesitant to impose

Monell liability on the basis ofthe IG Report alone. In particular, it is not clear that the IG

Report rationally supports a finding that it was obvious that NYPD officers required additional
supervision or discipline to prevent them from using excessive force against civilians. Compare
Delorbe-Bell v. Citv ofNew York. No. 15-CV-2344(LGS),2016 WL 1451581, at *3-4

(S.D.N.Y. Apr. 12,2016)(concluding that reliance on the IG Report alone was insufficient to
state a Monell claim, as "the 207 substantiated allegations of excessive force ... represent'a
notably modest number, given the size ofthe NYPD and a positive indication ofthe NYPD's

restraint,'" and "the NYPD imposed discipline in the majority of cases where allegations of
excessive force were substantiated"(quoting IG Report at 1)), ^id Boddie v. Citv of New York.
No. 15-CV-4275(GHW),2016 WL 1466555, at *3(S.D.N.Y. Apr. 13, 2016)(concluding that
the IG Report did not support allegations of a "persistent" failure to discipline officers for the use
of excessive force), with Marlin v. Citv ofNew York.No. 15-CV-2235(CM),2016 WL
4939371, at *19-21 (S.D.N.Y. Sept. 7,2016)(concluding that, in conjunction with other
evidence, the IG Report's finding that officers in more than 35 percent of substantiated
excessive-force cases were not disciplined sufficed to allow the plaintiffs failure-to-discipline
claim to withstand a motion to dismiss).

Even assuming that the IG Report could support such a conclusion in some other case,
however, it cannot here, because it was issued well after Plaintiffs arrest. As noted above, the

incident at issue in this suit took place in September 2013,but the IG Report was not published
imtil March 2015. Absent some additional evidence—^for example, about why the report was

13

commissioned and what the City knew as of September 2013—^the IG Report alone does not
create a triable issue as to whether the City was deliberately indifferent to the need for greater

supervision or discipline to prevent the use of excessive force by NYPD officers in general. See
Boddie. 2016 WL 1466555, at *3.
b. Hernandez and Nelson

It is a somewhat closer call as to whether the City ignored an obvious need to better

supervise or discipline Hernandez and Nelson, in particular, to attenuate the risk that either
would use excessive force against members ofthe public. In support ofthis theory. Plaintiff

points to evidence that both officers have been the subject of prior misconduct complaints. The
court first discusses whether these complaints are sufficient to create a triable issue regarding the
City's supervision or discipline of Hernandez, then turns to Nelson.
i.

Hernandez

The City cannot be liable based on its failure to supervise or discipline Hernandez. The
record indicates that Hernandez was the subject oftwo prior Civilian Complaint Review Board

("CCRB")complaints: a 2008 complaint regarding "the use ofphysical force, discourteous
words and offensive language regarding race" and a 2009 complaint "regarding offensive

language relating to someone's race." (PI. 56.1 Counterstatement 1|1[ 42-43.) Hernandez has also
been the subject ofthree NYPD Internal Affairs Bureau("lAB")investigations, none of which

involved complaints offalse arrest or the use of excessive force. (Id

44-46.)^ Thus, only one

ofthese five complaints actually involved conduct similar to Plaintiffs Monell claim, which is

'
Plaintiff also directed the court's attention to Bass v. City ofNew York. No. 14-CV-7201 (E.D.N.Y. filed Dec. 10,

2014s), iu which the plaintiffs alleged that Hernandez and Nelson violated their rights under the U.S. Constitution
and state tort law in connection with an incident that occurred six days after the incident at issue in this suit. See
Am. Compl.(Dkt, 12), Bass. Because this incident occurred after Plaintiffs arrest, it has no logical bearing on the
City's awareness, at the time ofPlaintiffs arrest, ofthe risk that Hernandez and Nelson would engage in
unconstitutional conduct. See Olschafskie v. Town of Enfield. No. 15-CV-67(MPS),2017 WL 4286374, at *15(D.

Conn. Sept. 27, 2017); Naples v. Stefanelli. 972 F. Supp. 2d 373,388(E.D.N.Y. 2013).
14

based on the City's alleged deliberate indifference to its officers' use offorce. Without

something more—for example, evidence that the 2008 incident involved such "extreme" use of
force that the need for additional supervision or discipline should have been obvious, see
Amnesty Am.,361 F,3d at 129—a single, five-year-old complaint about excessive force is

insufficient to support a rational conclusion that it was "obvious" to the City that Hernandez
required additional supervision or discipline.

Marshall v. Town of Middlefield. No. 10-CV-

1009(JCH),2012 WL 601783, at *4-5(D. Conn. Feb. 23, 2012)(single prior complaint

insufficient to show that municipality was deliberately indifferent to constitutional rights).
ii.

Nelson

Nor can the City be liable for failure to supervise or discipline Nelson,though it is a
closer call in light ofNelson's lengthy and troubling history of civilian complaints.
Nelson's record with the NYPD has been checkered, to put it gently. From early 2010

until the date ofPlaintiff's arrest. Nelson received at least 11 CCRB complaints, the majority of

which pertained to the use of physical force, verbal abuse, or discourtesy. (CCRB History(Dkt.
47-9 at ECF p.24) at ECF pp.25-26.) It appears that none ofthese complaints resulted in

discipline, because the allegations against Nelson were unsubstantiated. Nelson was exonerated,
or the complainant would not cooperate with the investigation. (Id.I During his deposition.
Nelson testified that he had also been the subject of an additional CCRB complaint pertaining to
an allegedly unlawful stop, threatened and actual use of physical force, and discourteous words.
(PI. 56.1 Counterstatement ^ 61; Nelson Dep. Tr. 103:20-104:22.) As a result of having received
three CCRB complaints within one year, Nelson was subject to "Level I" force monitoring

beginning on June 19,2012. (PI. 56.1 Counterstatement ^ 69.)^ Nelson was also the subject of

'* Due to the receipt of additional civilian complaints, Nelson was placed on Level II force monitoring on October
15,2013. (PI. 56.1 Counterstatement If 72.) Because this upgrade in Nelson's force monitoring happened after the
15

five lAB investigations based on similar civilian complaints(which overlap in part with the
CCRB complaints discussed above). (lAB Officer Resume (Dkt. 47-7); Defs. 56.1 Reply T[ 63.)
Prior to the incident in question. Nelson was also the subject of at least three domesticviolence complaints,including(1)a 2009 incident in which Nelson pushed and choked his
girlfriend (PI. 56.1 Counterstatement ^ 64);(2)an April 2010 incident in which Nelson

threatened to mutilate a man he saw with his former girlfriend (id. ^ 65); and(3)a September
2012 incident in which Plaintiff was accused of ransacking another girlfnend's house during a

verbal dispute(id f 71). In April 2010,as a result ofthe first two incidents. Nelson was placed
on "modified assignment," his firearm was taken away, and he was docked 20 vacation days.
(Id.

66-67.) The third incident was, however,found by NYPD investigators to be largely

unsubstantiated. (Feb. 19, 2014, Report(Dkt. 47-14 at ECF p.8) at ECF pp.8,12.)

Finally, Plaintiff also notes that Nelson was named as a defendant in two civil-rights
lawsuits based on incidents that took place before Plaintiffs arrest. (PI. 56.1 Counterstatement

K 75.) In the first suit, the plaintiff alleged that, in May 2009, Nelson and other police officers
falsely arrested him, used excessive force against him, and misrepresented that he had engaged in
disorderly conduct. 1st Am. Compl.(Dkt. 1)

8-23, Moselv v. Citv of New York. No. 09-CV-

2613(E.D.N.Y. filed Nov. 13,2009). In the second, the plaintiff alleged that, in response to a

call about a domestic incident that took place in another apartment within the plaintiffs building,
Nelson and other police officers broke into the plaintiffs apartment, assaulted him, and
subjected him to false charges. 3d Am. Compl.(Dkt. 28)UTI16-24, Patrizio v. Citv ofNew
York. No. 14-CV-7497(E.D.N.Y. filed Dec. 24, 2014). Both ofthose cases have since been

incident at issue in this suit, it cannot be relevant to the question of what the City was aware of at the time ofthe
incident.

16

settled. Stip. & Order of Settlement(Dkt. 17), Moselv (filed Jan. 5, 2010); Stip. & Order of
Dismissal(Dkt. 92), Patrizio (filed Oct. 13,2016).

The court assumes without deciding that Nelson's history of civilian complaints and

disciplinary history are sufficient to create a triable issue as to whether the City was aware of a
risk that Nelson would use excessive force against arrestees. "Courts in the Second Circuit

routinely hold that multiple civilian complaints against an officer regarding conduct similar to

that exhibited toward a plaintiffis enough for ajury to find the requisite degree ofindifference to
support failure to supervise liability under Monell." Coggins v. County of Nassau,254 F. Supp.
3d 500, 520-21 (E.D.N.Y. 2017)(collecting cases); see also Vann. 72 F.3d at 1049; Fiacco, 783
F.2d at 238; White v. Citv of New York. No. 13-CV-7421 (KPF),2015 WL 4601121, at *8

(S.D.N.Y. July 31, 2015)("Courts have taken into account the existence of similar lawsuits when
deciding whether a plaintiff has adequately alleged a Monell claim."); Tieman v. Citv of
Newburgh. No. 13-CV-4178(KMK),2015 WL 1379652, at *21 (S.D.N.Y. Mar. 26,2015).

Although the court need not resolve the question, it seems safe to say that Nelson's history of
complaints—^which includes eight CCRB complaints,two additional LAB complaints, and two
lawsuits alleging the use of excessive force, as well as several domestic- or domestic-related

violence complaints—^would suffice to create a triable issue as to whether it was obvious to the

City that there was a risk that Nelson would use excessive force against arrestees.^

^ Some courts appear to have held that prior incidents of domestic violence by a police officer are insufficient to put
a municipality on notice that the officer may be likely to use excessive force against civilians with whom he
interacts in his professional capacity. 8^ Burgos-Yantin v. Municipality ofJuana Diaz.669 F. Supp. 2d 191,19899(D.P.R. 2009); Brown v. Citv ofPittsburgh. No.05-CV-859,2007 WL 320833, at *5(W.D. Pa. Jan. 30, 2007).
The court sees no reason, however, why complaints of off-duty domestic violence are necessarily insufficient to
apprise a municipality of an obvious risk that the complained-of officer may have a tendency to engage in
unwarranted violence. See Vann. 72 F.3d at 1051 (obvious risk of violence existed where police "officer had been
identified by the police department as a 'violent-prone' individual who had a personality disorder manifested by
fi-equent quick-tempered demands for 'respect,' escalating into physical confrontations for which he always
disavowed responsibility"); cf Parrish v. Luclde. 963 F.2d 201,205-06(8th Cir. 1992)(evidence that police chief
was aware that officer had faced felony child abuse charges for whipping his child with an extension cord could be
17

Regardless of whether the City was aware of such a risk, however,Plaintiffs failure-tosupervise and failure-to-discipline theories are unavailing because he has not presented evidence
from which a rational factfinder could conclude that the City acted with deliberate indifference to
this risk. As noted above,"deliberate indifference may be inferred if[prior complaints of

misconduct] are followed by no meaningful attempt on the part ofthe municipality to investigate
or to forestall further incidents," Vann. 72 F.3d at 1049, or ifthe City's response is "so patently

inadequate to the task as to amount to deliberate indifference," Revnolds v. Giuliam. 506 F.3d
183,192-93(2d Cir. 2007): see also Mahan v. City ofNew York. No. OO-CV-6645,2005 WL
1677524, at *7(E.D.N.Y. July 19, 2005)("complete failure to investigate"). Plaintiff has not
identified any complaints to which the City simply failed to respond. To the contrary, it appears
to the court that the City investigated the complaints against Nelson and,to the extent those

complaints were found to be substantiated, disciplined him,subjected him to increased force
monitoring, and warned him that civilian complaints could derail his career.

Mahan.2005

WL 1677524, at *5 (noting that the force monitoring program "is itself evidence of disciplinary

action"). To the extent the complaints against Nelson were found to be unsubstantiated or were
settled without an admission of liability by the City, those complaints do not provide a valid
basis for concluding that the City was deliberately indifferent to his use of excessive force,
because they do not, by themselves, establish that he used excessive force in the first place. See
Tieman. 2015 WL 1379652, at *21; cL Hart v. Citv of Binehamton. No. lO-CV-1064, 2012 WL

1565085, at *7(N.D.N.Y. May 2, 2012)("[T]he mere fact that the City has been sued does not
mean that the prior suits were meritorious.").

used to show that the chief was aware ofthe officer's propensity for violence, in § 1983 suit based on officer's
subsequent sexual assault ofa detainee).
18

Plaintiff contends that the increased force monitoring to which Nelson was subjected

after racking up numerous civilian complaints was "nothing more than a sham or a feigned
attempt at discipline" because Nelson was unaware that he was subject to "Level 11" force

monitoring. (PL Opp'n at 9.) Nelson was aware, however, that he had been subject to "Level I"
force monitoring because he had accumulated multiple CCRB complaints. (Nelson Dep. Tr.

27:5-24.) While it is true that Nelson did not recall being subject to "Level 11" force monitoring
(id. 28ill-29:24), this fact does little to help Plaintiffs case. Because the City subjected Nelson
to "Level 11" force monitoring after Plaintiffs arrest. Plaintiff cannot show that any deficiency

with respect to this level offorce monitoring actually caused him to suffer constitutional injury.
Moreover,the fact that the City increased Nelson's force monitoring soon after Plaintiffs arrest

shows that the City^supervise and discipline Plaintiffin response to complaints about his

alleged use of excessive force, and tends to undermine any inference that the City acted with
deliberately indifference to his violations of constitutional rights. (See NYPD Central Personnel
Index Round Robin Report(Dkt. 47-8 at ECF p.2) at ECF p.4.)

Finally, Plaintiff argues, based on the fact that Nelson continued to receive civilian

complaints while being monitored, that the NYPD's force-monitoring system is so ineffective as
to constitute deliberate indifference to civilians' constitutional rights. (PI. Opp'n at 9.)

Complaints, without more, do not prove that a police officer actually violated anyone's
constitutional rights, so those xmsubstantiated complaints cannot support a rational conclusion
that the NYPD's force-monitoring system was "so deficient as to reflect a policy of deliberate
indifference to the civil rights ofthe citizenry." Mahan.2005 WL 1677524, at *5 (quoting Sams
vRotundo. 831 F.2d 397,401-02(2d Cir. 1987)).

19

Because Plaintiff has not produced evidence from which a rational factfinder could
conclude that the City acted with deliberate indifference in failing to train, supervise, or

discipline NYPD officers in general, or Hernandez and Nelson in particular, regarding the use of
force against the public, the court GRANTS Defendants' motion for summary judgment as to
Plaintiffs Monell claim.
B. State Constitutional Claims

Defendants next argue that Plaintiffs claims under the New York State Constitution
should be dismissed because New York courts recognize a private right of action for
constitutional torts only in cases in which no alternative remedy is available. (Defs. Mem. at 6.)
Because Plaintiff may maintain his equal-protection, search-and-seizure, and excessive-force
claims under § 1983, Defendants argue, he may not also do so under the New York State
Constitution. (Id.) The court accepts this argument in part and rejects it in part.
Like the U.S. Constitution, the New York State Constitution prohibits unreasonable
searches and seizures, the use of excessive force against arrestees, and the denial ofthe equal

protection ofthe laws. S^N.Y. Const., art. I, §§ 11,12; Bancroft v. Citv of Mount Vemon.672
F. Supp. 2d 391,404(S.D.N.Y. 2009)(noting that excessive-force claims brought by arrestees
are analyzed under Article One,§ 12, ofthe New York State Constitution, which is New York's
analogue to the Fourth Amendment to the U.S. Constitution). New York courts have recognized
a private right of action to enforce these guarantees against the state under certain limited
circumstances. Hewing closely to the reasoning ofBivens v. Six Unknown Named Agents of
Federal Bureau of Narcotics. 403 U.S. 388 (1971), which recognized a private right of action
under the Fourth Amendment against federal officials, the New York Court of Appeals held in

Brown v. State. 674 N.E.2d 1129(N.Y. 1996),that the state constitution provides a private right

20

of action for money damages against the state for violations ofthe state Equal Protection and
Search and Seizure Clauses. Brown.674 N.E.2d at 1137-41.

The Court of Appeals subsequently narrowed Brown's "narrow remedy," holding that a

private right of action for violations of the New York State Constitution exists only where such a
right of action is necessary to address both "the private interest that citizens harmed by
constitutional violations have an avenue of redress, and the public interest that future violations
be deterred." Martinez v. City of Schenectadv. 761 N.E.2d 560,563(N.Y. 2001). Accordingly,

New York courts have held that a private right of action for violations ofthe state constitution is
imavailable if an alternative remedy is available elsewhere, such as under state tort law or

through a New York Civil Practice Law and Rules Article 78 action. See, e.g.. Blake v. State. 42
N.Y.S.3d 875, 875-76(App. Div. 2016); Shelton v. N.Y. State Liauor Auth.. 878 N.Y.S.2d 212,

218(App. Div. 2009); Ken Mar Dev.. Inc. v. Dep't ofPub. Works. 862 N.Y.S.2d 202,206(App.
Div. 2008); Waxterv. State. 826 N.Y.S.2d 754, 754-55(App. Div. 2006); Bullard v. State. 763
N.Y.S.2d 371, 374(App. Div. 2003).

Federal courts in this circuit have apparently uniformly held that no private right of action
exists for violations ofthe New York State Constitution where the plaintiff has an alternative
remedy under § 1983 for violations of parallel provisions ofthe U.S. Constitution. See, e.g..

Allen V. Antal. 665 F. App'x 9,13(2d Cir. 2016)(summary order); Othman v. Citv ofNew
York. No. 13-CV-4771 (NGG),2018 WL 1701930, at *17(E.D.N.Y. Mar. 31, 2018); Coleman
V. Annucci. No. 17-CV-5031(MKB),2017 WL 6622544, at *4 n.9(E.D.N.Y. Dec. 28,2017);
Sullivan v. Metro. Transit Auth. Police Dep't. No. 13-CV-7677(NRB),2017 WL 4326058, at

*10(S.D.N.Y. Sept. 13,2017). These decisions rely on the premise that § 1983 provides an
"adequate" alternative remedy for violations ofthe New York State Constitution. While that

21

premise may not be entirely sound,^ Plaintiff concedes that § 1983 provides an adequate
alternative remedy for his state-constitutional claims against Nelson and Hernandez(PL Opp'n

at 14), so the court need not consider whether § 1983 c^ provide an adequate alternative remedy
for violations ofthe New York State Constitution.

Instead, the court need only consider whether Plaintiff can maintain his state-

constitutional claims against the City. Plaintiff contends that § 1983 does not supply an adequate
altemative remedy for his state-constitutional claims against the City because he seeks to hold
the City liable under a theory ofrespondeat superior, which is cognizable as a matter of state
constitutional-tort law, but not under § 1983. Compare MonelL 436 U.S. at 691-95, with Brown,

674 N.E.2d at 1142. (PI. Opp'n at 14-15.) Defendants appear to concede this general point.
(Defs. Reply at 9.)

The court agrees with Plaintiff that § 1983 does not provide an adequate altemative

remedy for Plaintiffs state-constitutional claims, to the extent they are asserted against the City
under a theory ofrespondeat superior. Because § 1983 does not authorize respondeat-superior
liability,^MonelL 436 U.S. at 691-95, it cannot provide an adequate altemative,remedy for

^ Section 1983 only provides a cause of action for deprivations "ofrights, privilege, or immunities secured by the
Constitution or laws ofthe United States." Comeio v. Bell. 592 F.Sd 121,127(2d Cir. 2010)(emphasis added)

(quoting Pitchell v. Callan. 13 F.3d 545,547(2d Cir. 1994)). "It is axiomatic that violations ofstate law alone are
insufBcient to state a claim for [§] 1983 relief." Powers v. Coe. 728 F.2d 97,105(2d Cir. 1984)). Because § 1983

cannot be used to vindicate the rights guaranteed to New Yorkers by their state constitution—only the parallel rights
guaranteed by the U.S. Constitution—the notion that § 1983 provides an adequate altemative remedy for violations
ofstate-constitutional rights is at least formally unsatisfying.

Moreover, state courts do not appear to have clearly endorsed the view that a plaintiff may not assert a claim under
the New York State Constitution based on the same factual allegations that support a parallel § 1983 claim. See,
e.g.. Coleman.2017 WL 6622544, at *4 n.9 (stating that a Brown claim "cannot be maintained where ...the factual

allegations underlying any such claim are identical to the allegations of[pjlaintiffs[§] 1983 claim, which provides
adequate remedies for the alleged violations"). The Appellate Division, Third Department,seems to have accepted
that the availability ofa § 1983 remedy may obviate the need to imply a private right of action under state law for
violations ofparallel provisions ofthe New York State Constitution. See Shelton. 878 N.Y.S.2d at218. At least
one other state court has, however,rejected as contrary to Brown the notion that no private riglit of action under the
New York State Constitution is available simply because § 1983 furnishes some remedy for violations ofparallel
provisions ofthe federal Constitution. See Boggs v. State ofNew York. 25 N.Y.S.3d 545 (Ct. Cl. 2015)
(disagreeing with, inter alia. Wahad v. FBI.994 F. Supp. 237,240(S.D.N.Y. 1998)).
22

Plaintiffs New York State constitutional claims, to the extent they are asserted against the City.

As the Court of Appeals recognized in Brown,"[a] plaintiff seeking to recover on the basis of

respondeat superior simply does not come within the terms of[§] 1983." 674 N.E.2d at 1142.
Indeed, the weight of case law in this circuit supports the conclusion that § 1983 is not an

adequate alternative remedy for state-constitutional claims that rely on a theory ofrespondeat
superior. See Brown v. City ofNew York. No. 13-CV-6912,2017 WL 1390678, at *15
(S.D.N.Y. Apr. 17,2017); Espinoza v. City ofNew York. 194 F. Supp. 3d 203, 208(E.D.N.Y.

2016); Campbell v. Citv ofNew York. No.09-CV-3306(FB),2011 WL 6329456, at *5
(E.D.N.Y. Dec. 15,2011); Vilkhu v. Citv of New York. No. 06-CV-2095(CPS),2008 WL
1991099, at *9(E.D.N.Y. May 5,2008). To the extent other courts in this district have held that

§ 1983 furnishes an adequate altemative remedy to state constitutional claims premised on a
theory ofrespondeat superior, notwithstanding that § 1983 does not recognize respondeat
superior liability, the court respectfully finds these cases unpersuasive and declines to follow
them for the reasons discussed above.

Felmine v. Citv of New York. No. 09-CV-3768

(CBA),2012 WL 1999863, at *7(E.D.N.Y. June 4,2012); Wahadv. FBI. 994 F. Supp. 237, 240

n.4(S.D.N.Y. 1998)."^
That does not mean, however,that all ofPlaintiffs claims against the City under the New

York State Constitution can proceed to trial. Defendants argue that Plaintiffs allegations of

' particular, the court in Wahad reasoned that requiring only some remedy,rather than an eauivalent remedy,to
In
displace the implied private right of action under the New York State Constitution was consistent with post-Bivens
case law, in which the Supreme Court had "refused to imply constitutional damages where Congress has created an
alternative remedy, even where the altemative remedy offers significantly less protection to plaintiff." 994 F. Supp.
at 240 n.4 (citing Bush v. Lucas. 462 U.S. 367, 388-90(1983)). In Brown, however,the Court of Appeals based its
decision in significant part on Bivens despite expressly acknowledging that the Supreme Court had subsequently
narrowed Bivens's scope. 674 N.E.2d at 1138. This court does not see why the Supreme Court's "general
reluctance to extend judicially created private rights ofaction," Jesner v. Arab Bank.PLC. — S. Ct. —,2018 WL
1914663, at *15(2018), implies that the New York Court of Appeals would be similarly reluctant to recognize
private rights of action under state law, see generallv Uhr ex rel. Uhr v. E. Greenbush Cent. Sch. Dist.. 720 N.E.2d
886, 888(N.Y. 1999)(stating New York's test for implying a private right of action in a state statute).
23

excessive force in violation of Article I, § 12, ofthe New York State Constitution are essentially

duplicative of his assault and battery claims. (Defs. Reply at 9.) Under New York law, a state
constitutional-tort claim will not lie when state tort law provides an altemative means ofredress.
E.g.. Waxterv. State. 826 N.Y.S.2d 754,754-55(App. Div. 2006); Lvles v. State. 770 N.Y.S.2d

81, 82(App. Div. 2003). Plaintiffs claim ofexcessive force under the state constitution
effectively duplicates his assault and battery claims, as state-law excessive force claims are
analyzed using substantially the same standard that applies to assault and battery claims. See
Posr V. Dohertv. 944 F.2d 91,94-95(2d Cir. 1991)(stating that the requirements of an
excessive-force claim under the Fourth Amendment to the U.S. Constitution were "substantially

identical" to the requirements for an assault-and-battery claim under New York law, except that

the former requires state action); People v. Johnson. 488 N.E.2d 439,449(N.Y. 1985)(noting
that courts generally read Article I, § 12, ofthe New York State Constitution in line with the
Fourth Amendment). Defendants have not challenged the legal sufficiency ofPlaintiffs assault
and battery claims, nor have they argued that the City cannot be vicariously liable for such
claims. Accordingly, the court concludes that Plaintiff has an adequate altemative remedy under
state tort law for his state-constitutional excessive-force claim, and that this claim therefore is
unavailing.

Defendants offer no persuasive explanation, however, as to why state law provides
Plaintiff adequate altemative remedies for his state-constitutional equal-protection and searchand-seizure claims. Defendants seem to argue that these claims are duplicative of his assault and

battery claims. (Defs. Reply at 9.) But the intentional torts of assault and battery do not share
the elements of the state constitutional claims in dispute, which protect wholly different legal
interests—^namely,the right not to be unreasonably detained and searched, and the right not to be

24

subject to racially discriminatory government action, as opposed to the right not to be physically
threatened and injured. While Defendants assert that plaintiff could have brought his equalprotection or search-and-seizure claims "under state law, but he chose not to," this assertion is
hard to understand, as Plaintiff asserted these claims under the New York State Constitution,

which is, ofcourse,"state law." More importantly. Defendants fail to identify any specific state

causes of action that would render Plaintiffs state equal-protection and search-and-seizure
claims unnecessary. Defendants have not shown that Plaintiff has an adequate altemative
remedy for these claims, to the extent these claims are asserted against the City.

Accordingly,the court GRANTS Defendants' motion for summary judgment with

respect to all claims asserted under the New York State Constitution against Nelson and
Hernandez; GRANTS the motion with respect to Plaintiffs state-constitutional excessive-force
claim,to the extent it is asserted against the City; and DENIES the motion with respect to

Plaintiffs state-constitutional equal-protection and search-and-seizure claims, to the extent they
are asserted against the City.
C. Claims Against the NYPD

Finally, Defendants briefly argue that any claims against the NYPD should be dismissed
because the NYPD is not a suable entity. (Defs. Mem. at 3 n.l.) Defendants' argument is

correct. S^ Jenkins. 478 F.3d at 93 n.l9. Accordingly, all claims against the NYPD are
DISMISSED with prejudice.

25

IV.

CONCLUSION

Defendants' motion for partial summaryjudgment(Dkt. 42)is GRANTED IN PART and
DENIED IN PART. The court dismisses the following claims with prejudice:
• Plaintiff's fourth(Monell) cause of action;

• Plaintiff's fifth cause of action(New York State equal protection), to the extent
this claim is asserted against Nelson and Hernandez;

• Plaintiff's sixth cause of action(New York State search and seizure and excessive
force), to the extent he alleges that Nelson and Hemandez subjected him to an
unreasonable search and seizure or that any Defendant used, or is vicariously
liable for the use of, excessive force against him;
• Plaintiff's seventh cause of action (IIED);
• Plaintiffs tenth cause of action (negligence); and

• Plaintiffs eleventh cause of action (negligent hiring and retention).
Furthermore,the court dismisses all claims against the NYPD with prejudice.

The court denies Defendants' motion for summary judgment with respect to Plaintiffs

New York State equal-protection and search-and-seizure claims,to the extent he asserts these
claims against the City under a theory ofrespondeat superior.
SO ORDERED.

s/Nicholas G. Garaufis

Dated: Brooklyn, New York

NICHOLAS G. GARA^JFIS

May J_, 2018

United States District Judge

26