Azeez v. The City of New York

Filing 91

MEMORANDUM & ORDER, The court GRANTS Defendants' motion for summary judgment (Dkt. 80 ) and DENIES Plaintiff's motion for summary judgment (Dkt. 58 ). The court also DENIES Plaintiff's appeal from Judge Tiscione's August 21, 201 7, order (Dkt. 76 ). The Clerk of Court is respectfully DIRECTED to enter judgment and close the case. The Clerk of Court is further respectfully DIRECTED to send a copy of this memorandum and order to pro se Plaintiff at his address ofrecord by certified mail, return receipt requested. So Ordered by Judge Nicholas G. Garaufis on 8/20/2018. (c/m as directed, certified mail receipt no. 7011 2000 0000 4074 6974) (Lee, Tiffeny)

t?/f

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
-X

JAMAL ADEEN AZEEZ,
Plaintiff,

MEMORANDUM & ORDER

16-CV-342(NGG)
(SJB)

-againstCITY OF NEW YORK, WILLIAM J. BRATTON,
and BRETT STRAUSS,
Defendants.
-X

NICHOLAS G. GARAUFIS,United States District Judge.
Plaintiff Jamal A. Azeez, proceeding pro se. brings this action pursuant to 42 U.S.C.
§ 1983 alleging civil rights violations by Defendants the City of New York; then-Commissioner

ofthe New York City Police Department("NYPD")William J. Bratton; and NYPD Officer Brett
Strauss. (Compl.(Dkt. 1); Am.Compl.(Dkt. 14).) Pending before the court are the parties'
cross-motions for summary judgment. (PI. Mot.for Summ. J.("PI. Mot.")(Dkt. 58); Defs. Mot.
for Summ. J.("Defs. Mot.")(Dkt. 80).) For the following reasons, the court DENIES Plaintiff's
motion and GRANTS Defendants' motion.
I.

BACKGROUND
A.

Facts

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). tSee Defs. Statement of Material Facts

("Defs. 56.1")(Dkt. 82); PL Resp. to Defs. 56.1 ("PL 56.1 Resp.")(Dkt. 86 at ECF p.l).) The

parties agree on the following facts, except where otherwise noted.^
1.

The First Encounter

On an unspecified date in September 2013, Plaintiff, with his wife as a passenger, was
driving east along Atlantic Avenue when he decided to make a right-hand turn onto the
southbound Van Wyck Expressway service road (the "Service Road"). (Defs. 56.1

14,16; see

id. nil 44-45.) The Service Road is a one-way,three-lane road. (Id. 1|1[ 20-21.) At that same

time. Officer Strauss was driving his police car northbound—^against traffic—on the Service
Road. Qd.f 17.) Strauss, who was pursuing another motorist, used flashing lights, but no siren,
to alert other motorists to his presence. (Id UK 18-19;
^PL 56.1 Resp. K 18.) As Plaintiff

turned onto the Service Road, he was driving at about five miles per hour. (Defs. 56.1 H 24.)
About five to ten feet fi
"om the comer where Plaintiff had turned. Plaintiff's car and Strauss's car

almost collided, but Plaintiff came to a slow stop to allow Strauss's car to pass. (Defs. 56.1 m
23, 25;

id. H 13.) Plaintiff did not see the police car when he was driving along Atlantic

'
According to Local Civil Rule 56.1(d), both statements and counterstatements of material fact"must be followed
by citation to evidence which would be admissible." If a party's response to a statement of material fact does not
cite relevant evidence, the statement of material fact is deemed admitted. Local Civ. R. 56.1(c),(d); see, e.g.. Green
V. Rochdale Vill. Soc. Servs:. Inc.. No. 15-CV-5824(BMC),2016 WL 4148322, at *1 n.l (E.D.N.Y. Aug. 4,2016).
Pro se parties are not excused from the requirements of Rule 56.1.
Wali v. One Source Co..678 F. Supp. 2d
170, 178(S.D.N.Y. 2009). Nevertheless, the court is under an obligation to "liberally construe" pro se Plaintiffs
briefing, see McLeod v. Jewish Guild for the Blind. 864 F.Sd 154, 156(2d Cir. 2017), and view the facts ofthe case

"in the light most favorable" to him, as the non-moving party,
^Tolan v. Cotton. 134 S. Ct. 1861,1866(2014)
(per curiam). So while the court will deem admitted any statement by Defendants to which Plaintiff has no response
supported by record evidence, the court will, at the same time, exercise its "discretion to consider the substance of

the plaintiffs arguments, where actually supported by evidentiary submissions." See Wali.679 F. Supp.2d at 178.
Local Rule 56.1 also requires that an opposing party's counterstatement of material facts be "correspondingly
numbered" to the moving party's statement of material facts, or else the moving party's statement offacts will be
deemed admitted. Local Civ. R 56.1(b),(c). In this case, while Plaintiff has mostly adhered to that rule, some of
his counterstatements are slightly misnumbered. (See, e.g.. PI. 56.1 Resp.^19(responding to Defs. 56.1 H 20).)
Because the court is able to discern the paragraphs from Defendants' Rule 56.1 Statement to which each of
Plaintiffs counterstatements is intended to respond, the court will not hold these discrepancies against Plaintiff. Cf..
e.g.. Urena v. Wolfson. No.09-CV-l 107(KAM),2012 WL 958529, at *2 n.4(E.D.N.Y. Mar. 20,2012).

Avenue, and only saw it when he turned onto the Service Road. (Id. K 26.) This near-collision,

and the conversation that followed, is referred to as the "First Encounter." (See id.^ 13.)
Plaintiff, considering Strauss's driving to have been reckless because Strauss was driving
against traffic at approximately 40 miles per hour, decided to follow Strauss to get his name and
badge number so that Plaintiff could file a complaint. (Id.

27-28.) After driving for five or

ten minutes. Plaintifffound Strauss. (M.^ 29.) Plaintiff asked Strauss for his name and badge
number. (Id H 30.) He also told Strauss that he wanted to file a complaint for reckless driving

and said,"You nearly killed me and my wife." (Id If 31.) Strauss responded that any complaint

against him would not be the first or the last. (Id ^f 32.) Plaintiffs wife says that Strauss then
gave Plaintiff his name and badge number(id ^^f 35-37), while Plaintiff says that Strauss only

gave his badge number(PI. 56.1 Resp.^ 36).^ Plaintiff did not write down Strauss's license plate
number. (Defs. 56.1 If 39.) Plaintiff did not report his alleged near-collision with Strauss to the

police or other municipal authorities.^ (See id.

40-43.) Plaintiff did, however, briefly attempt

to find a lawyer to represent him in a complaint against Strauss. Qd If 46.)
2.

The First Summons(October 12. 2013")

On October 12, 2013,Plaintiff was again driving east on Atlantic Avenue. (Id If 53.)
Plaintiff was driving in the right-hand lane as he approached the intersection of Atlantic Avenue

and the Service Road. (Id If 54.) There was, however, a car stopped in the right-hand lane in
firont ofPlaintiff, so Plaintiff swerved into the middle lane. (Id If^f 55, 57.) Plaintiffthen made a

^ Regardless, PlaintijBfhas claimed that he did not report the alleged near-collision because Strauss refused to give
PlaintiEf his name

badge number on the day ofthe First Encounter. (Defs. 56.1 If 33.)

^ Defendants add that PlaintifiF filed a previous complaint against a driver who struck Plaintiff with his car while
Plaintiff was riding his bicycle. (Defs. 56.1 ^ 48.) In conjunction with that incident, Plaintifftook a photograph of

the driver and the car's license plate, and a video ofthe driver driving away from the scene ofthe accident.(^
Tf 49.) Plaintiffthen called the police to report the incident and subsequently filed a complaint agamst the driver,
whose identity he traced from the photograph ofthe license plate. Qd.

50-52.)

right-hand turn from the middle lane of Atlantic Avenue onto the Service Road, an illegal
maneuver. (Id

58-60.) Plaintiff testifies that the traffic light at the intersection had turned to

amber, but not red, before he crossed the white lines to enter the intersection. (Id 161.) This
intersection is "regarded as an Accident-Prone Location" within the 102nd NYPD Precinct.

(Decl. of Brett Strauss(Dkt. 85)If 13; see Defs. 56.1 ^ 65.)
Unbeknownst to Plaintiff, at the same time that he was executing this turn, Strauss was
sitting in his police car, parked on the sidewalk of Atlantic Avenue at the southwest comer ofthe

intersection, watching for traffic infractions. (Defs. 56.1 ^^f 62-63.) Strauss claims that he saw a
car—^now known to be driven by Plaintiff—run the red light at the intersection. (Id ^ 66.) At
the time that he saw the car go through the intersection, Strauss did not see that Plaintiff was

driving the car. (Id ^ 67.) For that matter, Strauss did not see "any physical characteristics of
the driver," including age, gender, or race, or "whether the driver was wearing any religious
clothing." (Id

68-69.) Strauss states that he did not recognize Plaintiffs car prior to issuing

Plaintiff a summons. (Id If 70.) Strauss followed Plaintiff along the Service Road and pulled
him over on or near the ramp to the Van Wyck Expressway, about 60 to 100 feet away from the

intersection. (Jd

71-72; see PI. 56.1 Resp.^ 71.) Strauss exited his car and approached the

driver's side window ofPlaintiffs car. (Defs. 56.1 If 73.) Strauss told Plaintiff that Plaintiff had
run a red light. (Id If 74.) Strauss then issued Plaintiff a traffic summons for violation of section

111 1(d)(1) ofthe New York Vehicle & Traffic Law (the "First Summons"). (Defs. 56.1 If 75.)

Plaintiff recognized Strauss as the officer from the First Encounter. (Id If 76.) Plaintiff
then told Strauss that he wanted to file a complaint against him, and Strauss again responded to
the effect that any complaint would not be the first or last against him. (Id ^^f 77-78.) Plaintiff
could see Strauss's shirt but he did not look for Strauss's badge, ask him for his name, or take a

photograph of his license plate at any time during the issuance ofthe First Summons. (Id.

80-

84.) Strauss's tax identification number was written on the summons, which Defendants state
could be used to obtain Strauss's identity. (Id Hlf 85-86.)

Plaintiff contested the First Summons at a hearing held before the Department of Motor

Vehicles (the "DMV")on October 14, 2014(the "First Hearing"). (Id H 87.) Both Plaintiff and
Strauss testified at the hearing, and Plaintiff cross-examined Strauss. (Id

88-89.) Plaintiff

presented his theory that Strauss issued the First Summons in retaliation for Plaintiff's criticism
of Strauss and his asking for Strauss's name and badge number during the First Encounter. Qd

K 90.) At the time ofthe First Hearing, Strauss could not recall ever having encountered Plaintiff
prior to issuing the First Summons. (Id K 93.) Strauss did remember the First Encoimter but did
not know that Plaintiff was the person involved in that incident. (Id 191•) Strauss is now aware

that Plaintiff was the person who approached him in the First Encounter. (Id ^ 92.) Regardless,
the DMV administrative law judge found Plaintiff guilty ofrunning the red light(id ^ 94)and

fined him $150 plus an $88 administrative surcharge (Tr. of Oct. 14, 2014,DMV Hrg.("1st Hrg.

Tr.")(Dkt. 84-8) 11:24-12:1). Plaintiff appealed the verdict to the DMV Appeals Board, which
affirmed the decision. (Id
affirmed once more. (Id
3.

95-96.) Plaintiff again appealed the guilty verdict, which was
97-98.)

The Second Summons(October 24. 20141

On October 24,2014, Strauss was sitting in his police car in the parking lot of a gas
station at the southwest comer of Atlantic Avenue and 111th Street, facing north. (Id H 99.)

This intersection is also "regarded as an Accident-Prone Location" within the 102nd NYPD

Precinct. (Id ^ 101.) From his police car, Strauss observed a car—^now known to be driven by
Plaintiff—^run a red light. (Id If 103.) Strauss did not recognize Plaintiffs car or see that
Plaintiff was driving the car. (Id ^ 104-05.) As with the First Summons, Strauss did not see

"any physical characteristics ofthe driver," including age, gender, or race, or "whether the driver

was wearing any religious clothing." (Id

106-07.)

Strauss drove after Plaintiffs car and pulled it over a minute or two later, on Atlantic
Avenue between 115th and 116th Streets. (Id

108-09.) Strauss told Plaintiff that he had run

a red light and issued a summons(the "Second Summons"). (Id

110-11.) Plaintiff knew at

that time that Strauss was accusing him ofrunning the traffic light at Atlantic Avenue and 111th

Street. (Id K 112.) Plaintiffs wife and imam were in the car with him. (Id

114.) Plaintiff

later represented to the DMV,"1 have a witness, another [M]uslim, who was behind me after
leaving the mosque,[who] will testify that 1 did not run any red light; neither did he." (Id

^113.) Plaintiff has admitted that he knows of no witness to the Second Summons who was
driving behind him. (Id 1115.)

Plaintiff, now represented by attorney Geoffrey Schotter, contested the Second Summons
at a hearing held before the DMV on July 21, 2015 (the "Second Hearing"). (Id f 116-17.)

Plaintiff states in the amended complaint that he met Schotter for the first time on the date ofthe
Second Hearing, but Schotter had previously represented Plaintiff in his hearing pursuant to

General Municipal Law, Section 50-h, held on May 6, 2015,pertaining to these summonses.
(Id fl 118-191 s^ Am. Compl.^ 62.) Plaintiff and Schotter also met several times to prepare
for the Second Hearing. (Id If 120.) Both Plaintiff and his wife testified on Plaintiffs behalf at
the Second Hearing. (Id If 121.) The Second Hearing was presided over by a differentjudge
than the judge who presided over the First Hearing. (Id ^ 122.) At the hearing, Strauss testified
that he had been parked,facing north (i.e.. facing Atlantic Avenue), in a parking lot at the
southwest comer of Atlantic Avenue and 111th Street, and that he drove from there to where he

pulled Plaintiff over. (Id ^ 123-24.) Strauss was asked where he pulled Plaintiff over,to which

he responded,"East Atlantic Avenue on 111th Street." (Id K 125.) Neither Plaintiff nor his
attorney pointed out that Strauss actually pulled Plaintiff over at 115th Street. (Id ^ 126.) The
administrative law judge found Plaintiff guilty ofrunning the red light. (Id f 127.) Because of

his prior violation, Plaintiff was fined $375 plus an $88 adrninistrative surcharge. (Tr. of July
21,2015,DMV Hrg.("2d Hrg. Tr.")(Dkt. 84-11) 14:4-5.) Plaintiff again appealed the guilty
verdict to the DMV Appeals Board, which affirmed the administrative law judge's decision.
(Defs. 56.1 HH 128-29.)

Since receiving the red light summonses firom Strauss, Plaintiff has paid more attention at
traffic lights. (Id ^ 142.)
4.

Plaintiff's Discrimination Complaints

After receiving the Second Summons,Plaintiff filed a complaint against Strauss, alleging
"Police Retaliation, False Charges, Racial Profiling, and Discrimination." Qd ^ 130.)

Defendants state that "Plaintiff ha[d] no evidence to support a beliefthat [Strauss] was biased

against him on the grounds of his race or religion," though Plaintiff contends that Defendants
refused discovery requests that"would have aided Plaintiffto better respond to this statement."

(Id ^ 131; PI. 56.1 Resp. H 131.) Defendants add that "[tjhe parts of Atlantic Avenue on which
Plaintiff was stopped are in an ethnically diverse neighborhood." (Defs. 56.1 ^ 132.)
Defendants also note that Plaintiff had previously been fired firom hisjob at Rye Brook
Labs "because he complained about the laboratory manager's work habits, and was unable to get
along with her, and for no other reason." (Id H 133.) In 2013,following his termination.
Plaintiff sued Rye Brook Labs, alleging that he was terminated as a result ofracial and religious

discrirnination. (Jd H 135.) Plaintifffiled a complaint with the New York State Division of
Human Rights, which found Plaintiff's complaint to be "meritless"(id K 137), though Plaintiff
notes that his complaint was dismissed for failure to exhaust administrative remedies (PI. 56.1

Resp. H 137). Plaintiff has also brought two other lawsuits alleging racial and religious
discrimination: one in 2014, against the company Medytox; and one in 2009, against Enzo Labs,
following his termination from that place of employment. (Defs. 56.1
B.

140-41.)

Procedural History

Plaintifffiled his complaint on January 21,2016(Compl.), and filed an amended
complaint on May 17,2016(Am. Compl.). Discovery was originally scheduled to be completed

by no later than August 31,2016. (May 17,2016, Min. Entry.) Following a number of
extensions oftime, discovery was eventually closed on March 18, 2017. tSee Max. 17,2017,
Order.) On April 3,2017, without having sought a pre-motion conference. Plaintiff moved for
summaryjudgment. (See PI. Mot.) Magistrate Judge Steven L. Tiscione set a briefing schedule
for both Plaintiff's motion and an anticipated motion for summary judgment by Defendants.

(See Apr. 11,2017, Min. Entry(Dkt. 60).) The cross-motions for summary judgment were fully
briefed on September 26,2017.

During the course of litigation, the various magistrate judges assigned to this action have

denied a number of motions made by Plaintiff:(1)a request for a certificate of default based on
the incorrect assertion that Defendants had not answered or otherwise timely responded to the
complaint or amended complaint(see June 2,2016, Order);(2)a motion to compel DMV

hearing records, which Magistrate Judge Marilyn D. Go had instructed Defendants to turn over
to Plaintiff(see June 9, 2016, Order);(3)a motion for appointment of counsel (see Sept. 15,
2016, Order(Dkt. 33));(4)a motion to compel responses to Plaintiffs third set of interrogatories
(though Magistrate Judge Steven L. Tiscione did direct Defendants to respond to Plaintiffs first
set ofrequests for admissions)(see Dec. 15, 2016, Mia. Entry(Dkt. 40));(5)a motion to compel

further responses to Plaintiffs requests for admissions(see Jan. 26, 2017, Min. Entry (Dkt. 45));

8

(6)a motion for sanctions(see Apr. 11,2017, Min. Entry(Dkt. 60));(7)a motion to compel

courthouse security video footage (see June 1, 2017, Order); and(8) another request for a

certificate of default(see Aug. 21,2017, Order). This court has upheld a number ofthese

decisions on appeal by Plaintiff."^ (See June 13,2016, Order(Dkt. 24); Mar. 31,2017, Order
(Dkt. 57); Jan. 19,2018, Order(Dkt. 89).)
n.

LEGAL STANDARD

A court must grant summary judgment when "the 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). "A 'material' fact is one capable ofinfluencing the case's outcome under

governing substantive law, and a 'genuine' dispute is one as to which the evidence would permit
a reasonable juror to find for the party opposing the motion." Fieueroa v. Mazza. 825 F.3d 89,
98(2d Cir. 2016)(citing Anderson v. Libertv Lobbv. Inc..477 U.S. 242,248 (1986)). "The
movant may discharge this burden by showing that the non-moving party has 'fail[ed] to make a
showing sufficient to establish the existence of an element essential to that party's case, and on

which that party will bear the burden of proof at trial.'" Lantheus Med.Imaging. Inc. v. Zurich
Am.Ins. Co.. 255 F. Supp. 3d 443,451 (S.D.N.Y. Apr. 28,2015)(citing Celotex Corp. v.
Catrett. 477 U.S. 317,322(1986)). "'The mere existence ofa scintilla of evidence' in support of
the non-movant wiU be insuSicient to defeat a summaryjudgment motion." Transflo Terminal
Servs.. Inc. v. Brooklvn Res. Recovery. Inc.. 248 F. Supp. 3d 397, 399(E.D.N.Y. 2017)(quoting
Libertv Lobby.477 U.S. at 252).

^ The appeal of Judge Tiscione's denial ofPlaintiffs request for a certificate of default is pending before this court.
(See Aug. 21, 2017, Order; PI. Aug.24,2017, Appeal(Dkt. 76).) The court DENIES Plaintiffs appeal. It is clear
that Defendants followed the court's rules by serving their motion papers on Plaintiff on July 20,2017, but waiting
to file the papers with the court, as the motion was not yet fully briefed. (See Defs. Aug. 17,2017, Letter(Dkt. 74).)

"In determining whether an issue is genuine,'[t]he inferences to be drawn from the
underlying affidavits, exhibits, interrogatory answers, and depositions must be viewed in the

light most favorable to the party opposing the motion.'" SCW West LLC v. Westport Ins. Corp..
856 F. Supp. 2d 514,521 (S.D.N.Y. 2012) rquoting Cronin v. Aetna Life Ins. Co..46
F.3d 196,202(2d Cir. 1995)). "[T]he judge's function is not Q to weigh the evidence and
determine the truth ofthe matter but to determine whether there is a genuine issue for trial."
Redd V. N.Y. Div. ofParole. 678 F.3d 166,173-74(2d Cir. 2012)rquoting Liberty Lobbv. 477

U.S. at 249). However,"[a] party may not rely on mere speculation or conjecture as to the true
nature ofthe facts to overcome a motion for summary judgment," and "[m]ere conclusory
allegations or denials ...cannot by themselves create a genuine issue of material fact where
none would otherwise exist." Hicks v. Baines, 593 F.3d 159, 166(2d Cir. 2010)(intemal

quotation marks and citation omitted).
The court must "liberally construe pleadings and briefs submitted by pro se litigants,
reading such submissions to raise the strongest arguments they suggest." McLeod v. Jewish
Guild for the Blind, 864 F.3d 154,156(2d Cir. 2017)(citation and quotation marks omitted).

Nevertheless, proceeding pro se does not relieve a litigant from the usual requirements of
summaryjudgment. See, e.g.. Marks v. Scalabrini. 204 F. Supp. 3d 514, 521 (S.D.N.Y. 2016).
"[A] pro se party's 'bald assertion,' completely unsupported by evidence, is not sufficient to
overcome a motion for summary judgment." Lee v. Coughlin. 902 F. Supp. 424,429(S.D.N.Y.

1995)(quoting Carev v. Crescenzi. 923 F.2d 18, 21 (2d Cir. 1991)); sqq Christian v. Powell. No.
16-CV-673(KBF),2017 WL398406,at *2(S.D.N.Y. Jan. 30, 2017)("[A] prosemovantfor

summary judgment must still provide 'a short and plain statement ofthe claim showing that the
pleader is entitled to relief and show that 'there is no genuine dispute as to any material fact and

10

the movant is entitled to judgment as a matter oflaw,'"(first quoting Fed. R. Civ. P. 8(a)(2), and

then quoting Fed. R. Civ. P. 56(a))).
m.

DISCUSSION

Liberally construing Plaintiff's amended complaint, he asserts the following claims under

42 U.S.C. § 1983: deprivation ofhis Sixth Amendment right to a fair trial; deprivation of his
Fifth and Fourteenth Amendment rights to due process; deprivation of his Fourteenth
Amendment right to equal protection; deprivation of his Eighth Amendment right to be free from

"unusual penalties"; retaliation in violation of his rights vmder the First Amendment; malicious
abuse of process; and malicious prosecution. (Am. Compl.^89;
^id. K 90.) He also asserts a
number ofcommon-law, constitutional, and statutory claims under state law. (See id.

78-86,

90.)
Both sides have moved for summary judgment on all claims. (See PI. Mot; Defs. Mot.)

After addressing the merits of both motions as they apply to each ofPlaintiffs federal claims,
the court DENIES Plaintiffs motion and GRANTS Defendants' motion.
A.

Rule 56.1 Statement

Defendants fust argue that Plaintiffs motion for summary judgment should be denied in

its entirety due to Plaintiffs failure to file an accompanying Rule 56.1 statement. (Defs. Mem.
in Opp'n to PI. Mot. and in Supp. of Defs. Mot.("Defs. Mem.")(Dkt. 83) at 8-9.) Defendants
are correct that, ordinarily, failure to comply with Local Rule 56.1 "may constitute grounds for
denial ofthe motion." Local Civ. R. 56.1(a); s^ MSF Hide. Ltd. v. Fiduciary Tr. Co..435 F.

Supp. 2d 285,304(S.D.N.Y. 2006)(denying a cross-motion for summary judgment "on the
ground that it has not complied with the requirements of Local Rule 56.1"). The court has

11

"broad discretion," however,"to overlook a party's failure to comply with local court rules."
Holtz V. Rockefeller & Co.,258 F.3d 62,73(2d Cir. 2001).

As a general matter. Rule 56.1(a)is not"an appropriate basis to deny reliefto a pro se

party." Goldstein v. Solucoro Indus.. Ltd.. No. ll-CV-6227(VB),2015 WL 6143813, at *4
(S.D.N.Y. Oct. 16,2015). That is true even where, as here. Plaintiff has not claimed that he was
unaware ofthe Rule 56.1 requirements. (Cf PI. Mot. to Reject Defs. 56.1 (Dkt. 86 at EOF p.21)

at 2("Defendants provided Plaintiff with a copy of[Rule 56.1].").) While Defendants may well
be correct that Plaintiff has not "unearth[ed] admissible evidence entitling [him] to summary

judgment"(Defs. Mem. at 9), the court will not relinquish its duty to scrutinize the substance ofa
pro se party's briefs simply because that party failed to comply with a technical requirement
which the court has discretion to overlook.
B.

Abandonment

Ordinarily, any issues not addressed in an opposition brief are deemed abandoned by the

party opposing the motion. Jackson v. Fed. Express. 766 F.3d 189,195(2d Cir. 2014)("[A]
partial response arguing that summary judgment should be denied as to some claims while not
mentioning others may be deemed an abandonment of the unmentioned claims."). The Second
Circuit has, however, urged courts to distinguish between pro se and counseled parties in this
regard:

In the case ofa pro se. the district court should examine every claim
or defense with a view to determining whether summary judgment
is legally and factually appropriate. In contrast, in the case of a
counseled party,a court may,when appropriate,infer from a party's
partial opposition that relevant claims or defenses that are not
defended have been abandoned.

Id. at 197. Nevertheless, courts sometimes apply the abandonment rule to pro se litigants, see
McAllister v. Ouik Park. 661 F. App'x 61,63(2d Cir. 2016)(summary order), especially those
12

who,like Plaintiff, are "capable of opposing motions, submitting evidence, and communicating
issues with the [cjourt." Tumer v. Sidowicz. No. 12-CV-7048(NSR),2016 WL 3938344, at *3
(S.D.N.Y. Julyl8,2016).

As Defendants point out. Plaintiff's briefin opposition to Defendants' motion for
summary judgment fails to respond to Defendants' arguments on the following claims: "against
former Police Commissioner Bratton, of municipal liability, supervisory liability, violations of

equal protection, retaliation, malicious abuse or process, and each and all of his purported state
law claims." (Defs. Reply at 4.) Instead, Plaintiff's briefin opposition to Defendants' motion

for summary judgment focuses almost entirely on the question of whether Strauss lied during his
testimony before the DMV. (See PI. Opp'n at 6-11.) Plaintiff also complains about the

discovery process(s^ id at 11)and misconstrues the evidentiary support for Defendants'
motion(s^ id at 4-5,11-12). Even under the most liberal construction ofthis brief, the court
would be forced to conclude that Plaintiff has abandoned the vast majority of his claims.

Nevertheless, the court will not simply grant Defendants' motion for summaryjudgment
as to the claims that Plaintifffailed to address in his opposition briefing. For one. Plaintiff did
address most of his claims in his motion for summary judgment. (See PI. Mot.) While this brief

obviously did not respond to the grounds for summary judgment put forth by Defendants in their
subsequent motion,the court takes this brief as a good indication that Plaintiff did not intend to
abandon his claims on motion for summary judgment. Second, the court does not believe that

application ofthe abandonment doctrine would be appropriate in this context. The court takes
seriously its obligation to "examine every claim or defense" put forth by a pro se party "with a
view to determining whether summary judgment is legally and factually appropriate." See
Jackson. 766 F.3d at 197. While the court would hold a pro se attomey, or even a non-attomey

13

pro se party with generally competent and thorough briefing, to a higher standard, c£ Sullivan v.
City ofNew York. 14-CV-1334(IMF),2015 WL 5025296, at *5 (S.D.N.Y. Aug. 25,2015), the
court chooses to exercise its discretion and not apply this rule to dismiss the vast majority of
Plaintiffs claims without further discussion. Cf.. e.g.. James v. Gage. No. 15-CV-106(KMK),

2018 WL 2694436, at *14 n.l5(S.D.N.Y. June 5,2018).
C.

Individual Liability Against Bratton

Defendants urge the court to dismiss all ofPlaintiffs claims against Bratton, the former
commissioner ofthe NYPD,"as duplicative of[Plaintiffs] claims against the City." (Defs.

Mem.at 17.) The court agrees. Official-capacity suits "generally represent only another way of
pleading an action against an entity of which an officer is an agent." Kentucky v. Graham.473
U.S. 159, 165(1985)(quoting Monell v. N.Y.C. Dep't of Soc. Servs.. 436 U.S. 658,690 n.55

(1978)). "[C]ourts routinely dismiss ofQcial-capacity claims where the plaintiff also sues the
municipality." Thomas v. Venditto. 925 F. Supp. 2d 352, 364(E.D.N.Y. 2013L see also Nogue
V. CitvofNewYork.No. 98-CV-3058 (JG), 1999 WL 669231, at *7 n.l3 (E.D.N.Y. Aug. 27,

1999)("To the extent the Police Commissioner is being sued in his official capacity, any claim
against him is merely duplicative ofthe action against the City."). Because Plaintiff has named
the City as a defendant in this action, his claims against Bratton are dismissed as duplicative.
D.

§ 1983 Claims-Individual Liability

Liberally construing all of Plaintiffs allegations and defenses, the court grants summary

judgment for Defendants on all of Plaintiff's claims ofindividual liability.
1.

Malicious Prosecution

a.

Plaintiff's§1983 Claim ofMalicious Prosecution

"To establish a malicious prosecution claim under New York law, a plaintiff must prove

(1)the initiation or continuation ofa criminal proceeding against plaintiff;(2)termination ofthe
14

proceeding in plaintiffs favor;(3)lack of probable cause for commencing the proceeding; and
(4)actual malice as a motivation for defendant's actions." Manganiello v. Citv ofNew York.
612 F.Sd 149,161 (2d Cir. 2010)(internal quotation marks omitted). A claim for malicious
prosecution under § 1983 additionally requires the plaintiffto "show a 'seizure or other

perversion of proper legal procedures implicating the claimant's personal liberty and privacy
interests under the Fourth Amendment.'" Mitchell v. Citv of New York. 841 F.3d 72,79(2d

Cir. 2016)Cquoting Washington v. Coimtv of Rockland. 373 F.3d 310, 316(2d Cir. 2004)).
Plaintiff argues that Strauss violated his Fourth Amendment right to be free from

malicious prosecution by bringing the First and Second Summonses "with malice towards
Plaintiff." (PI. Mot. at 13.) Because Plaintiff has failed to establish at least three ofthe required
elements for a claim of malicious prosecution, the absence of any one of which would be fatal to
his cause ofaction, summaryjudgment must be awarded to Defendants.

As Defendants point out, a plaintiff making a claim of malicious prosecution must allege
that the defendants initiated criminal—^not civil—^proceedings against him. S^ Laham v. Safir.
No. 98-CV-3115(RCC),2001 WL 1448441, at *3(S.D.N.Y. Nov. 15,2001); Lacarav. Town of
Islip. 791 F. Supp. 69,70(E.D.N.Y. 1992). Plaintiff was charged with two violations ofthe
Vehicle & TrafiSc Law, which New York law defines as "not a crime." N.Y. Veh. & Traf. Law

§ 155: see Glasgow v. Bearv.2 F. Supp. 3d 419,426(E.D.N.Y. 2014). Plaintiff cannot meet the
first element of his malicious prosecution claim.
Plaintiffs malicious prosecution claim also faUs at the second element. Plaintiff was
convicted of an offense and a guilty verdict against him was upheld on appeal—^twice. He
cannot argue that the proceedings terminated in his favor, a requirement of any claim of

15

malicious prosecution. See Rudai v. Treanor. No. ll-CV-7098(LAP),2011 WL 13128215, at
*3(S.D.N.Y. Dec. 7,2011)(citing, inter alia. Heck v. Humphrey.512 U.S. 477,489-90(1994)).
Finally, Plaintiff has failed to establish that Strauss lacked probable cause for

commencing proceedings against him. On this point. Defendants state that "[a]n adjudication of
guilt or liability by an administrative law judge establishes the existence of probable cause for
the charges, precluding a malicious prosecution claim." (Defs. Mem. at 21.) This is true, and
precludes Plaintiff's claim. See Nasca v. County of Suffolk. No. 05-CV-1717(JFB), 2008 WL
53247, at *4 n.4(E.D.N.Y. Jan. 2,2008). But while this fact would be enough to find for
Defendants on this point, the court will also here address Defendants' extensive briefing on
whether Plaintiffis collaterally estopped from relitigating the issue ofprobable cause. (See Defs.
Mem. at 9-10.)

b.

The Collateral-Estoppel Effect ofthe DMV Hearings

Defendants state that the DMV's finding that Plaintiff ran the red lights, upheld on

appeal,"is identical to the probable cause question...in the present case, requiring that Plaintiff
be estopped from relitigating it." (Id at 10.) Plaintiff, meanwhile, seems to argue that the prior
determinations of guilt in the DMV proceedings should be ignored because ofthe "peijury"
committed by Strauss when he stated during the Second Hearing that he pulled Plaintiffs car
over at 111th Street, when this interaction actually occurred at 115th Street, as well as other

allegedly inconsistent statements made by Strauss. (See PI. Mot. at 9-11; PI. Opp'n at 10.)
"Under the doctrine of collateral estoppel,'when an issue of ultimate fact has once been

determined by a valid and finaljudgment,that issue cannot again be litigated between the same

parties in any future lawsuit.'" United States v. U.S. Currency in Amount of$119.984.00. 304
F.3d 165,172(2d Cir. 2002)(quoting Schiro v. Farley. 510 U.S. 222,232(1994)). The party

16

seeking to preclude relitigation of an issue must show that the following prerequisites are
satisfied:

(1) the issues in both proceedings must be identical;(2) the issue
must have been actually litigated and actually decided in the prior
proceeding;(3) there must have been a full and fair opportunity to
litigate the issue in the prior proceeding; and (4) the resolution of
the issue must have been necessary to support a valid and final
judgment on the merits.

Id. The principles of collateral estoppel apply "[wjhether the prior adjudication occurred in the
context of an admmistrative determination... or a full-fledged judicial proceeding." United

States V. E. River Hons. Corp., 90 F. Supp. 3d 118,140(S.D.N.Y. 2015)(second alteration in
original)(quoting Staatsburg Water Co. v. Staatsburg Fire Dist., 527 N.E.2d 754, 756(N.Y.

1988)). "The burden ofshowing that the issues are identical and were necessarily decided in the

prior action rests with the party seeking to apply issue preclusion,... [while] the burden of
showing that the prior action did not afford a fuU and fair opportunity to litigate the issues rests
with...the party opposing the application ofissue preclusion." Kulak v. Citv ofNew York. 88
F.3d 63,72(2d Cir. 1996).

The court agrees that Plaintiffis precluded from relitigating whether he ran either ofthe
red lights in question. First, that issue—^insofar as it is relevant to the instant case—^is the same
here as it was in the administrative proceedings before the DMV. Second,this issue was

litigated before the DMV and actually decided, with two verdicts of guilty that were upheld on

appeal. Finally—jumping ahead to the fourth factor—^the answer to whether Plaintiff ran the red
light was necessary to support the DMV's valid and final judgment that he violated the Vehicle
& Traffic Law.

17

The court also finds that Plaintiff had a full and fair opportunity to litigate this factual

question during the state administrative proceedings. The Second Circuit has phrased the inquiry
for this factor as follows:

In determining whether a party had a full and fair opportunity to
litigate the issue, . . . the various elements which make up the
realities of litigation[] should be explored, including the size of the
claim, the forum of the prior litigation, the use of initiative, the
extent of the litigation, the competence and experience of counsel,
the availability of new evidence, indications of a compromise
verdict, differences in the applicable law and foreseeabUity offuture
litigation.
Curry v. Citv of Svracuse, 316 F.Sd 324, 332(2d Cir. 2003)(internal quotation marks omitted)

(quoting Kosakow v. New Rochelle Radiologv Assocs.. P.C.. 274 F.3d 706,734(2d Cir. 2001)).
Plaintiff has failed to meet his burden of proving that he did not have a full and fair opportunity
to litigate this issue before the DMV. By all accounts. Plaintiff zealously litigated the First and
Second Summonses,efforts which included appearing before an administrative judge to contest

the citations, questioning and cross-examining Strauss, and appealing the determinations of guilt.

After reviewing the record,the court finds that Plaintiff appears to have received competent

counsel in his losing attempt to fight the Second Summons.^ That Plaintiffrepresented himself
in the course ofthe First Hearing, meanwhile, does not, by itself, establish that he did not have a

full and fair opportunity to litigate the issue of whether he ran the red light at Atlantic Avenue
and the Service Road. See Goodson v. Sedlack,212 F. Supp. 2d 255, 258(S.D.N.Y. 2002)

("[T]he mere fact that the plaintiff proceeded pro se does not sufficiently establish that he was
denied a full and fair opportunity to be heard

"
(citation omitted)); cf Palmer v. Goss, No.

02-CV-5804(HE),2003 WL 22519446, at *5(S.D.N.Y. Nov. 5,2003)(holding that a prose

^ While Plamtiff claims that he and Schotter did not meet until the Second Hearing, he has separately admitted that
he and Schotter met prior to the Second Hearing numerous times to discuss his case. (See Defs. Mem. at 11 n.6.)
18

party was denied a full and fair opportunity to litigate his prior claim where he was "woefully
xmprepared to present his case and to counter the State's evidence").
Plaintiff's accusations that Strauss committed "peijury" do not upset this conclusion. For

one, Plaintiffs allegations are baseless. Strauss states that his inconsistency on whether he
pulled Plaintiffs car over at 111th Street or 115th Street was due to his having misspoken, a
totally plausible rationale that Plaintiff nonsensically rejects, fSee PL Mot. at 10.) Furthermore,

whether Strauss pulled Plaintiffs car over at 111th Street or 115th Street is immaterial—^the
question ofPlaintiffs guilt turned on whether he ran the red light. tSee Defs. Mem. at 13.)
Finally, even if Strauss had committed some sort offraud that threw the soundness ofthe DMV's
fact-finding into question,that claim needed to be addressed and remedied by a state court, not
by this court on collateral review. See W & D Imps, v. Lia, No. 1 l-CV-4144(SJF), 2013 WL

1750892, at *12(E.D.N.Y. Apr. 22, 2013)("The proper procedure for seeking relief from an
order procured by fraud is to petition the rendering court to vacate the judgment.... As long as

the state-courtjudgment remains in effect, it must be given preclusive effect, and the Court will
not speculate as to whether the state court would vacate the judgment in light ofthe [defendants']
alleged peijury.").

While the court agrees with Defendants that Plaintiffis collaterally estopped from
relitigating whether Strauss had probable cause to cite Plaintifffor violating the Vehicle &
Traffic Law,the court does not agree that this finding mandates the dismissal of"each claim

Plaintiff brings." (Defs. Mem. at 9;
^id at 10, 14.) The probable-cause finding is relevant to
some, but not all, of Plaintiffs claims. The court will apply the collateral-estoppel effect ofthe

probable-cause determination where necessary, but cannot condone Defendants' sweeping

19

statement that "collateral estoppel bars a finding that Plaintiff suffered miy constitutional
violation." (Id at 14(emphasis added).)
2.

Malicious Abuse ofProcess

"In New York, a malicious abuse-of-process claim lies against a defendant who(1)

employs regularly issued legal process to compel performance or forbearance ofsome act(2)
with intent to do harm without excuse or justification, and (3)in order to obtain a collateral

objective that is outside the legitimate ends ofthe process." Cook v. Sheldon. 41 F.Sd 73,80(2d
Cir. 1994). A plaintiff asserting an abuse-of-process claim under § 1983 must also establish "the
deprivation of a constitutional right." Hofhnan v. Town of Southampton. 893 F. Supp. 2d 438,
446(E.D.N.Y. 2012).

Like with his malicious-prosecution claim. Plaintiff seems to argue that it was an abuse

of process for Strauss to issue the First and Second Summonses. fSee Am.Compl.f 90; PI. Mot.
at 13-14.) The court need not accept Defendants' contention that "traffic summonses do not
constitute regularly issued process"(Defs. Mem. at 25)to find that Plaintiffs abuse-of process
claim must be dismissed. ^Crockett v. Citv ofNew York. No. 1 l-CV-4378(PKC),2015 WL

5719737, at *10(E.D.N.Y. Sept. 29,2015)(collecting cases establishing that "the issuance-oflegal-process element [is] met by an officer's arrest of, or issuance oftickets to, a plaintiff, so
long as the issuance was "for a collateral objective outside the legitimate ends of process"
(quoting Mangino v. Incorporated Village ofPatchogue. 739 F. Supp. 2d 205,231 (E.D.N.Y.
2010))). Nor must the court decide whether probable cause is a complete defense to an abuse-of-

process claim under New York law because it is an "excuse or justification," a question of
"considerable confusion" within this circuit.

Mangino v. Incorporated Village ofPatchogue.

808 F.3d 951, 958-59(2d Cir. 2015).

20

Instead, Plaintiff's claim founders at the third element ofthe abuse-of-process test:
whether Strauss issued the First and Second Summonses in order to obtain a collateral objective

that is outside the legitimate ends ofthe process. "In evaluating this element,the Second Circuit
expressly distinguishes between a 'malicious motive' and an 'improper purpose'; only the latter

suffices to meet the 'collateral objective' prong ofthe abuse of process standard." Hof&nan. 893
F. Supp. 2d at 448 (citing Savino v. Citv of New York. 331 F.3d 63,77(2d Cir. 2003)). Courts
typically require a plaintiff bringing an abuse-of-process claim to show that the defendant
initiated the process for the purpose of"extortion, blackmail, retribution, or [a] similar
extraneous harmful goal." Brandon v. Citv ofNew York. 705 F. Supp. 2d 261,275(S.D.N.Y.

2010k see Peterson-Hagendorf v. Citv of New York. 146 F. Supp. 3d 483,487(E.D.N.Y. 2015).
In other words,the defendant must have "aimed to achieve a collateral purpose bevond or in

addition to" the process itself—^in this case, citing Plaintifffor his violation ofthe Vehicle &
Traffic Law. Hof&nan,893 F. Supp. 2d at 448(emphasis added)(quoting Savino, 331 F.3d
at 77).

Plaintiff has failed to allege that Strauss had a collateral purpose beyond issuing, and

prevailing on,the First and Second Summonses. There is no evidence in the record that Strauss

sought to pursue an improper purpose at any point during his interactions with Plaintiff. Plaintiff
does not even allege such a thing; instead, in his amended complaint, he says that Strauss

"undertook [his] conduct for no purpose other than to unlawfully intimidate and harass Plaintiff
because Plaintiff dared to exercise his vested right to file a complaint to expose prior

misconduct." (Am. Compl.179.) Even iftrue—and,again, there is nothing in the record to
suggest that it is—such a fact would only support an allegation that Strauss acted with a
malicious motive,something that cannot, without evidence of an improper purpose, support an

21

abuse-of-process claim. See, e.g.. Cabbie v. City ofNew York, No. 04-CV-9413(LTS),2009
WL 890098, at *4(S.D.N.Y. Mar. 30, 2009).

Because Plaintiff has not shown that Strauss acted with an improper purpose in charging
him with violating the Vehicle & Traffic Law, his abuse-of-process claim fails.
3.

Equal Protection

"Proofthat discriminatory intent was a motivating factor is required to show a violation

ofthe Equal Protection Clause." Okin v. Vill. of Comwall-on-Hudson Police Dep't. 577 F.3d
415,438(2d Cir. 2009)(citing Village of Arlington Heights v. Metro. Hons. Dev. Corp.. 429
U.S. 252, 265-66(1977)). "[A]plaintiff seeking to estabhsh a violation of equal protection by

intentional discrimination may proceed ...by pointing to a law that expressly classifies on the
basis ofrace, a facially neutral law or policy that has been applied in an unlawfully
discriminatory manner, or a facially neutral policy that has an adverse effect and that was
motivated by discriminatory animus." Pvke v. Cuomo.258 F.3d 107, 110(2d Cir. 2001).
"Because discriminatory intent is rarely susceptible to direct proof, a district court facing a

question of discriminatory intent must make 'a sensitive inquiry into such circumstantial and
direct evidence ofintent as may be available.'" Mhanv Mgmt..Inc. v. County ofNassau. 819
F.3d 581,606(2d Cir. 2016)(quoting Village of Arlington Heights. 429 U.S. at 267).

Liberally construed. Plaintiff's pleadings allege that Strauss twice discriminated against
him "on the basis of[Plaintiff's] foreign ethnicity, color, religion, and/or race"(Am.Compl.% 2;
see id.^ 87): First, during the First Encounter, when Strauss refused to disclose his identity to
Plaintiff(i^ 1 8; PI. Mot. at 2,12); and second, when Strauss issued the First and Second
Summonses to Plaintiff(Am. Compl. fif 28,49; PI. Mot. at 2). The court agrees with Defendants
that Plaintiff has made

showing that Strauss issued traffic summonses to Plaintiff because of

racial or religious discrinaination.'' (Defs. Mem. at 19.) Plaintiff has not pointed to any facts—
22

beyond that he is "a colored, foreign-bom citizen [and] a practicing Muslim"(Am. Compl.

^ 13)—^that would lead the court to conclude that he was treated differently by Strauss because of
these characteristics, either during the First Encounter or during the issuance ofthe First and
Second Summonses. His only argument on this point is that "any fair-minded juror would

believe [Strauss]... discriminated against Plaintiff." (PI. Mot. at 12.) This type of speculation
cannot substitute for the evidence Plaintiff is required to marshal in support of his discriniination
claim. S^ Travlor v. Hammond,94 F. Supp. 3d 203,215(D. Conn. 2015); see also
Chandranaul v. Citv Univ. of N.Y.. No 14-CV-790(AMD),2016 WL 1611468, at *23

(E.D.N.Y. Apr. 20,2016)("[A]llegations of discrimination under the Equal Protection Clause
'require that intentional discrimination be alleged in a non-conclusory fashion.'"(quoting
Clvbum V. Shields. 33 F. App'x 552,555(2d Cir. 2002)). The court, having found no facts in
the record that would support Plaintiffs claim of discrimination in violation ofthe Equal
Protection Clause, grants summaryjudgment for Defendants on this claim.
4.

First Amendment Retaliation

"[T]he First Amendment prohibits government officials from retaliating against
individuals for engaging in protected speech." Lozman v. Citv of Riviera Beach, 138 S. Ct.

1945, 1949(2018). In order to state a claim for unlawful retaliation, a private-citizen plaintiff
must show:"(1) he has an interest protected by the First Amendment;(2)defendants' actions
were motivated or substantially caused by his exercise ofthat right; and(3) defendants' actions

effectively chilled the exercise of his First Amendment right." Kuck v. Danaher. 600 F.3d 159,
168(2d Cir. 2010)(quoting Curlev v. Village of Suffem. 269 F.3d 65,73(2d Cir. 2001)). In
cases involving criticism of public officials by private citizens, the plaintiff must show that that
he suffered an "actual chill" in his speech as a result ofthe protected activity. Zherka v.
Amicone. 634 F.3d 642,645(2d Cir. 20111: see Yuan v. Rivera, 48 F. Supp. 2d 335, 351
23

(S.D.N.Y. 1999)(holding that a plaintiff must show that the defendants actually chilled the

exercise of his First Amendment rights where he "alleges that the prosecution was in retahation
for [his] exercise of First Amendment rights, notwithstanding the fact that probable cause for the

prosecution is established").
Plaintiff claims that his "constitutionally protected right to bring a complaint was

impermissibly chilled by [Strauss,] who intentionally retaliated" against Plaintiff's threatened

complaint following the First Encounter,"and subsequently issued two back-to-back traffic
summons[es]." (PL Mot. at 6;
^id. at 12-13.) Defendants respond that Plaintiffs claim is
barred by the finding of probable cause, and that Plaintiff cannot show that Defendant's actions
actually chilled the exercise of his right to free speech. (Defs. Mem. at 23-24.) The court need
not decide the first question—^whether the finding ofprobable cause in this case serves as an
absolute bar to Plaintiffs retaliation claim^—^because it is clear that Plaintiff cannot meet the

third retaliation requirement.
Plaintiffs claim ofretaliation fails because he "cannot show that his speech was either

silenced or chilled—^i^,that his right to free speech was actually violated." Williams v. Tovm
of Greenburgh. 535 F.3d 71,78(2d Cir. 2008). Diuing the First Encounter, Plaintiff told Strauss

that he wanted to file a complaint against him. (Defs. 56.1 ^ 31.) He stated the same thing after
Strauss issued the First Summons. (Id,^ 78.) While Plaintiff did not file a complaint against
Strauss in conjimction with the First Encounter or the First Summons,he^file a complaint

^ The Second Circuit has long held that the existence of probable cause is a complete defense to a First Amendment
retaliation claim. See, e.g. Fabrikant v. French. 691 F.3d 193,215(2d Cir. 2012). The Suprenie Court recently

held, however, that it is an open question whether a civil claim for retaliatory arrest may lie against an individual
officer, even ifthere was probable cause for the arrest, if"the alleged constitutional violation was a but-for cause" of
the arrest. Lozman. 138 S. Ct. at 1952-54 (citing Mt. Healthv Citv Sch. Dist. Bd. ofEduc. v. Dovle.429 U.S. 274,

285-87(1977)); Higginbotham v. Sylvester. — F. App'x—,2018 WL 3559116, at *2(2d Cir. July 25,2018)
(summary order). While the court assumes that the Second Circuit's probable-cause defense will continue to apply
in cases such as this one—^where a plaintiff alleges he was issued a civil citation supported by probable cause—^the
court will not wade into this potentially thorny issue without needing to do so.
24

against Strauss after the issuance ofthe Second Summons. (See id. fli 33, 130.) Plaintiff cannot
show that either ofthe actions taken against him by Strauss actually chilled his right to express

his opinion about Strauss, and he does not attempt to argue to the contrary. "Without allegations
of even one example in which [Plaintiff] desired to exercise his First Amendment rights but was
chilled by [Djefendants' alleged actions," his First Amendment retaliation claim must be
dismissed. Femandes v. Moran. No. 17-CV-3430(ADS),2018 WL 2103206, at *7(E.D.N.Y.
May 7, 2018)(alteration adopted)(internal quotation marks and citation omitted).
5.

Other Claims

In a footnote, Defendants urge dismissal ofPlaintiffs remaining federal claims. (See
Defs. Mem. at 22 n.9.) The court agrees.
Plaintiff asserts a claim under the Sixth Amendment for violation of his rights "to a fair

trial and impartialjudge." (Am.Compl.f 89.) As Defendants point out, the Sixth Amendment
by its text only applies to "criminal prosecutions." (Defs. Mem. at 22 n.9(quoting U.S. Const.

Amend. VI).) See Turner v. Rogers,564 U.S. 431,441 (2011)("[T]he Sixth Amendment does
not govern civil cases."). Because Plaintiff was not criminally prosecuted,s^ supra Section
111(D)(1)(a), the court dismisses his claims under the Sixth Amendment.

Plaintiff also claims that the City violated his Eighth Amendment right "to be free from

unusual penalties." (Am. Compl.^ 89.) As set forth above. Plaintiff received a fine of$150 for
the First Summons and $375 for the Second Summons, plus $176 m adrnkustrative surcharges.

Even assuming that civil administrative penalties are subject to the Eighth Amendment

prohibition against excessive fines. Plaintiff has not successfully shown that the jQnes he received
were "grossly disproportionate to the gravity ofthe offense." N.Y. State Fed'n of Taxi Drivers.
Inc. V. Citv ofNew York.270 F. Supp. 2d 340, 343(E.D.N.Y.2003)(quoting United States v.
Baiakaiian, 524 U.S. 321,333(1998)); s^ Dubin v. Countv of Nassau. 277 F. Supp. 3d 366,402
25

(E.D.N.Y. 2017)(collecting cases showing that "both federal and New York State courts have
found that administrative and other civil penalties" are subject to the Excessive Fines Clause if

the penalties "can only be explained as serving in part to punish"(quoting Austin v. United
States. 509 U.S. 602,610(1993))). The minimum fine for the First Summons was $190 but the
administrative law judge lowered the jfine to $150 based on Plaintiffs "very good driving

record." (1st Hrg. Tr. 11:23-25.) The DMV imposed a higher fine for the Second Summons
because it was Plaintiff's second red-light violation iu 18 months. (2d Hrg. Tr. 14:2-3.) In view
ofthis set offacts, the court believes that the few hundred dollars in fines that Plaintiff received
for his two low-level driving offenses was reasonable and accordingly dismisses Plaintiffs
claims under the Eighth Amendment.

Finally, Plaintiff asserts a due-process claim under the Fifth and Fourteenth

Amendments. (Am. Compl. H 89.) Although Plaintiff does not specify how this deprivation

supposedly occurred,the court reads this claim as referring to Plaintiffs allegations that Strauss
lied both in issuing traffic citations and during his testimony before the DMV. Defendants argue

that "these are the same allegations which imderlie his Fourth Amendment malicious prosecution
claim,[so] his substantive due process claim is duplicative and should be dismissed." (Defs.
Mem. at 22 n.9.) Defendants' contention is not exactly correct: Plaintiff's malicious-

prosecution claim was factually based on the issuance ofthe citations by Strauss; whether
Strauss lied in the DMV hearings is relevant to the question of probable cause, which is a legal
element ofthe cause of action. But an examination ofthe substance ofPlaintiffs due-process

claims still motivates their rejection. For one. Defendants are correct that Plaintiffs claim under
the Fifth Amendment must be dismissed, as that amendment "solely governs the conduct ofthe

federal government and federal employees." (Defs. Mem. at 22 n.9.) See, e.g.. Pabon v. N.Y.C.

26

Transit Auth., 703 F. Supp. 2d 188,198-99(E.D.N.Y. 2010). Meanwhile,"it violates due

process under the Fourteenth Amendment for a govemment official to give false testimony in a
state court proceeding." Velez v. Revnolds. 325 F. Supp. 2d 293, 316(S.D.N.Y. 2004)(citing
Nflpue V. Tllinnis. 360 U.S. 264,270(1959));

United States ex rel. Washington v. Vincent,

525 F.2d 262,267(2d Cir. 1975). As discussed above,there is no legal basis to support the
contention that Strauss lied during his testimony before the DMV leading to a deprivation of
Plaintiffs right to due process. Finally, insofar as Plaintiffis due-process claim is construed to

allege harms stemming from Strauss's citing Plaintifffor his red-light violations, such a claim
would indeed impermissibly overlap with PlaintifPs malicious-prosecution claim. Cf., e.g.,
Osuna V. Citv ofNew York.No.08-CV-4759(JSR),2009 WL 2356424, at *5(S.D.N.Y. July

30,2009)(dismissing due-process claim "as both duplicative and merit less" where it was "based
on the same conduct that gave rise to plaintiffs now-dismissed false arrest and malicious
prosecution claims").
E.

§ 1983 Claims- Municipal Liability

"[A] municipality cannot be held liable under § 1983 on a resnondeat superior theorv."
Monell. 436 U.S. at 691. Instead, municipalities are only liable under § 1983 for constitutional
deprivations resulting from a governmental policy or custom. Id at 694; s^ Lozman. 138 8. Ct.

at 1951 ("[I]n a § 1983 case[,] a city or other local govenunental entity cannot be subject to
liability at all unless the harm was caused in the implementation of'official municipal policy.'"

(quoting Monell, 436 U.S. at 691)). A plaintiff may demonstrate that such a policy or custom
exists by introducing evidence of one ofthe following:
(1) a formal policy officially endorsed by the municipality; (2)
actions taken by govemment officials responsible for establishing
the municipal policies that caused the particular deprivation in
question;(3)a practice so consistent and widespread that, although
27

not expressly authorized, constitutes a custom or usage of which a
supervising policy-maker must have been aware; or(4) a failure by
policy makers 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.

Skates v. Incorporated Village ofFreeport. 265 F. Supp. 3d 222,235(E.D.N.Y. 2017). A
plaintiff bringing a Monell claim also must establish a causal connection between the
municipality's official policy and the underlying constitutional violation.

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 ofpersons with whom the [untrained employees] came into
contact.'" Connick v. Thompson. 563 U.S. 51,61 (2011)^quoting Citv of Canton.489 U.S. at

388). Likewise, to prevail on a Monell claim based on the theory that the municipality failed to
adequately supervise or discipline its employees(thereby implicitly encouraging or ratifying
their unlawful conduct), a plaiutiff must show that such a failure of supervision or discipline was
tantamount to deliberate indifference. Revnolds v. Giuliani. 506 F.3d 183,192(2d Cir. 2007)

(citing Amnesty Am. v. Town of West Hartford. 361 F.3d 113,127(2d Cir. 2004)(failure to
supervise), and Beirv v. Citv of Detroit. 25 F.3d 1342,1354(6th Cir. 1994)(failure to
discipline)). In this context,"[d]eliberate indifference is a stringent standard offault, requiring

proofthat a municipal actor disregarded a known or obvious consequence of his action."
Connick. 563 U.S. at 61 fquoting Bd. of Ctv. Comm'rs v. Brown.520 U.S. 397,410(1997)).
Plaintiff asserts claims of municipal liability on two bases. First, Plaintiff makes a

general allegation that Strauss's alleged misconduct"was consistent with an institutionalized
28

practice ofthe NYPD,which was known to and ratified by [the City]..., which at no time took
any effective action to prevent police personnel from continuing to engage in such misconduct."
(Am. Compl.^ 83.) Second, Plaintiff claims that the City "had prior notice ofthe vicious

propensities ofDefendant Strauss" but failed to train him, supervise him, or discipline him for
"his unlawful use of authority." (Id,f 84.) Defendants respond that all ofPlaintiff's allegations
of municipal liability must fail because he has not "establish[ed] that he suffered a denial of a
constitutional right" and, even if he had. Plaintiff"cannot prove the existence of a municipal
custom or policy that caused his alleged constitutional violation." (Defs. Mem.at 14-15.)
Defendants are correct that Plaintiffs claim fails for lack of any alleged constitutional

injury. Because the court today dismisses all of Plaintiffs claims pursuant to § 1983,these

incidents cannot support Plaintiff's Monell claim. See, e.g., Schultz v. Incorporated Village of
Bellport. 479 F. App'x 358,360(2d Cir. 2012)(summary order)("Because [the plaintiff] was
unable to establish an underlying violation of his constitutional rights ...,his ... Monell claim

necessarily fail[s] as well."(footnote omitted)). The court also fmds that, even ifPlaintiff did
have viable claims under § 1983, he has not pleaded facts sufficient to establish a municipal

policy leading to any constitutional injury. Accordingly,the court grants summary judgment for
Defendants as to Plaintiffs claims of municipal liability.
1.

Failure to Train

To establish that a municipality acted with deliberate indifference for purposes ofa
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 given situation. Thus,
a policymaker does not exhibit deliberate indifference by failing to
train employees for rare or unforeseen events.
Second,the plaintiff must show that the situation either presents the
employee with a difficult choice of the sort that training or
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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 deprivation 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.

Alwan V. Citv ofNew York. 311 F. Supp. 3d 570, 578-79(E.D.N.Y. 2018)(alteration in
original)(quoting Walker v. Citv ofNew York,974 F.2d 293, 297-98(2d Cir. 1992)). "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." Id.

(alteration in original)(quoting Cnnnick, 563 U.S. at 61-62). "Additionally, to prevail on a
failure-to-train clahn, 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.'" Id (quoting Wrav v. Citv ofNew York.490
F.3dl89, 196(2d Cir. 2007)).

Plaintiff has not come close to meeting his burden of establishing that the City

unconstitutionally failed to train Strauss. The amended complaint says simply that,"[ujpon
information and belief. Defendants... had prior notice ofthe vicious propensities ofDefendant
Strauss, but took no steps to tram him." (Am. Compl.^ 84.) Plaintiff has not pointed to a

supposed omission in the City's training program,shown that the City was aware ofthat shortfall
but nevertheless chose to retain it, or coimected any such problem to the harms he allegedly
suffered. This basic allegation, unsupported by a shred of evidence, is insufficient to survive
summaryjudgment.

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2.

Failure to Supervise or Discipline

"As with his failure-to-train theory, Plaintiffs failure-to-supervise and failure-to-

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

Alwan. 311 F. Supp. 3d at 580. "To prove such deliberate indifference, the plaintiff must show
that the need for more or better supervision to protect against constitutional violations was
obvious." Id. fquoting Vann v. Citv ofNew York. 72 F.3d 1040,1049(2d Cir. 1995)). "An
obvious need may be demonstrated through proof of repeated complaints of civil rights
violations ...." Id.(quoting Varm. 72 F.3d at 1049). "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.'" Id. at 581 n.2
(internal quotation marks omitted)(quoting Vann,72 F.3d at 1049).

Plaintiff has not produced either form of evidence required to show the City's failure to
supervise or discipline. Like with his failure-to-train claim. Plaintiff's allegations in the

amended complaint are wholly lacking in specificity or support. (See Am. Compl.

84, 85(a).)

Having gone through discovery. Plaintiff has not proffered evidence that there were repeated

civil-rights complaints lodged against Strauss, nor does he put forth expert testimony regarding
any ofthe City's policing practices. The court has only been made aware of one recorded prior

complaint against Strauss: In 2007, a complaint was lodged against him "for failing to provide
his name and badge number"; the allegation was investigated by the City's Civilian Complaint
Review Board and dismissed as unfounded. (Defs. 56.1 f 47.) Without more compelling

evidentiary support than a single dismissed complaint alleging facts that, even iftrue, would
probably not support liability under § 1983,Plaintiffs claim that the City failed to supervise or
discipline Strauss must be dismissed.
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3.

Official Practice

Fiaally, Plaintiff claims that he suffered injury pursuant to an "institutionalized practice"
ofthe NYPD,"known and ratified by" the City, that encouraged police misconduct. (Am.

Compl.f 83.) Plaintiff does not specify what this supposed practice is or how the City was

aware of and encouraged it. Plaintiffs allegations are wholly conclusory and fall far short ofthe
facts he would need to show that he suffered constitutional injury pursuant to a formal policy of
the City. See locovangelo v. Corr. Med. Care. Inc.. 624. F. App'x 10,13-14(2d Cir. 2015)

(summary order). Plaintiff also fails to allege that there was a causal connection between the
formal policy between that policy and the violation of his federally protected rights, a
requirement for any claim of municipal liability. See Berry v. Village of Millbrook. 815 F.
Supp. 2d 711, 719(S.D.N.Y. 2011).
F.

Supplemental Jurisdiction

Where a court dismisses all claims over which it has original jurisdiction, it may,in its

discretion, decline to exercise supplemental jurisdiction over remaining claims. 42 U.S.C.
§ 1367(c)(3). "[Wjhere, as here, the federal claims are eliminated in the early stages of
litigation, courts should generally decline to exercise pendentjurisdiction over remaining state
law claims." Klem & Co. Futures. Inc. v. Bd. of Trade.464 F.3d 255, 262(2d Cir. 2006); see
Cobbs V. CBS Broadcasting Inc.. No.97-CV-8284(MBM), 1999 WL 244099, at *8(S.D.N.Y.

Apr. 26, 1999)("When federal claims are dismissed early in the litigation—^for example, before
trial on a summary judgment motion—dismissal ofstate law claim[s]... is appropriate."

(emphasis added)). Although courts more often decline to exercise supplementaljurisdiction
when all federal claims are dismissed pursuant to a motion to dismiss, rather than a motion for
summaryjudgment, the court finds that declination is appropriate in this circumstance given that
the court's first review ofthe merits ofPlaintiffs amended complaint comes at the summary32

judgment stage. See Marom v. Town of Hempstead. No. 14-CV-3005 (SJF),2017 WL 5495808,
at *7(E.D.N.Y. Mar. 22, 2017).

Because the court has dismissed all federal-law claims asserted by Plaintiff, it declines to

exercise supplemental jurisdiction over any potential state-law claims asserted in his amended
complaint.
IV.

CONCLUSION

The court GRANTS Defendants' motion for summary judgment(Dkt. 80) and DENIES
Plaintiffs motion for summary judgment(Dkt. 58). The court also DENIES Plaintiff's appeal
from Judge Tiscione's August 21,2017, order(Dkt. 76). The Clerk of Court is respectfully
DIRECTED to enterjudgment and close the case. The Clerk of Court is further respectfully
DIRECTED to send a copy ofthis memorandum and order to pro se Plaintiff at his address of
record by certified mail, retum receipt requested.
SO ORDERED.

s/Nicholas G. Garaufis
Dated: Brooklyn, New York
August
,2018

NICHOLAS G. GARAUFR
Umted States District Judge

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