Patterson v. City of New York et al

Filing 64

MEMORANDUM & ORDER, For the reasons set forth above, the Municipal Defendants' motion to dismiss (Dkt. 50 ) is GRANTED; Defendant Braver's motion for judgment on the pleadings (Dkt. 52 ) is GRANTED; and Defendant Herskovic's motion to dismiss (Dkt. 63 ) is GRANTED. All claims against the moving defendants are DISMISSED WITH PREJUDICE. So Ordered by Judge Nicholas G. Garaufis on 8/8/2017. (Lee, Tiffeny)

t/if

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
-X

TAJ PATTERSON,
MEMORANDUM & ORDER

Plaintiff,

16-CV-3525(NGG)
(SMG)

-against-

THE CITY OF NEW YORK et al.
Defendants.
X

NICHOLAS G. GARAUFIS,United States District Judge.

Plaintiff Taj Patterson initiated this civil rights action on June 27,2016, asserting claims
under 42 U.S.C. §§ 1983 and 1985 against the following groups of Defendants:
• The "Municipal Defendants," consisting ofthe City ofNew York("the City")
and three New York City Policy Department("NYPD")officers(die "Officer
Defendants"), Police Officer Rodrigo Fernandez, Sergeant Ivan Furda, and
Sergeant Joseph Zaikowski, sued in their individual capacities;
• The"WSP Groups," consisting ofthe Williamsburg Safety Patrol, Inc., and the
Shmira Volunteer Patrol Corp; and
• The"WSP Individual Defendants," consisting ofPinchas Braver, Mayer
Herskovic, Abraham Winkler, Aharon Hollender, Joseph Fried, Yoeli Itzkowitz,
and John Does #1 through #10.

(See Compl.(Dkt. 1); Am. Compl.(Dkt. 43).) Plaintiff asserts that Defendants violated his
constitutional rights in connection with an alleged assault on Plaintiff and the NYPD's
investigation thereof. Pending before the court are three dispositive motions:

• A motion to dismiss filed by the Municipal Defendants(Dkt. 50);
• A motion forjudgment on the pleadings filed by WSP Individual Defendant
Braver(Dkt. 52); and
• A motion to dismiss filed by WSP Individual Defendant Herskovic(Dkt. 63).

The WSP Groups and the non-moving WSP Individual Defendants have neither answered nor
appeared.
1

For the reasons set forth below, all three pending dispositive motions are GRANTED.

Accordingly, all claims against the Municipal Defendants, Defendant Braver, and Defendant
Herskovic are DISMISSED WITH PREJUDICE.
I.

BACKGROUND

A. Plaintiffs Allegations
1. The Relationship Between the Citv and the WSP Groups

The WSP Groups are "two of several neighborhood safety patrols organized and operated
by volunteer orthodox Jews in different neighborhoods throughout Brooklyn," collectively
referred to as the "Shomrim Groups." (Am. Compl. H 10.) "The City [has] substantially []
funded and continues to fund the Shomrim groups," including by "purchas[ing] specific law

enforcement equipment such as bullet proof vests, police radios for WSP to communicate

directly with NYPD precincts,'search and rescue command posts', and vehicles and uniforms
that are virtually indistinguishable from NYPD vehicles." (Id. H 11.) The WSP Individual
Defendants named in this case were, at all relevant times,"members and employees ofthe
Shomrim, or were working on behalfofthe Shomrim." (Id 121.)

Plaintiff alleges that the WSP Groups have a close relationship with various City and
NYPD officials, including a "uniquely close working relationship" with the NYPD's 90th
Precinct in the Williamsburg neighborhood ofBrooklyn,New York. (Id ^ 24; see also id

11-21, 52-56.) "Within the communities where the Shomrim groups operate, the majority of
the orthodox Jewish citizens report law enforcement issues to the Shomrim groups fnst and
usually exclusively, in lieu ofthe NYPD." (Id H 28.) "The Shomrim groups, including [the
WSP Groups], often make arrests for and with the NYPD,and enjoy ready access to areas of

NYPD precincts not otherwise open to the public." (Id 112.) "When arresting individuals, the

[WSP Groups] profess to act pursuant to" New York's statutory authority for citizens' arrest.
(Id. H 13 (citing N.Y. Crim. Proc. Law § 140.30).)
Further,"Orthodox Jewish communities and the Shomrim groups have well known

'fixers' and '[liaisons]' to the NYPD,with desks within the very precincts." Qd H 53.) "[T]hose
'fixers'... assist in avoiding and voiding arrests of Jewish crime suspects, undercharging Jewish

crime suspects, giving preferential treatment to those Jewish [c]rime suspects who are actually
arrested by issuing discretionary 'desk appearance tickets'...,and intervening with the Kings
County District Attomey's office." (Id.) The District Attomey's office, too, allegedly
maintained a "full-time 'liaison' to the Hasidic community...,who had to be kept in the loop in

virtually every case involving either orthodox Jewish victims or defendants." (Id. 154.) "The
office had no such councils or liaison[s] to any other religious or racial commumty." (Id.)
2. The Assault

Plaintiff is a Black, gay, non-Jewish man who lives in a Brooklyn neighborhood with a

large population of Orthodox Jews. Qd.

7, 23.) Plaintiff was walking through Brooklyn early

in the morning on December 1, 2013, when he was spotted by two individuals, a Shomrim

"enthusiast" and a former Shomrim employee.^ (Id.^ 25.) Those individuals "believed Plaintiff
was acting suspiciously"—one ofthe individuals later testified "that he believed ... Plaintiff was
vandalizing cars"—so they called the Williamsburg Safety Patrol "to report the suspicious
behavior." (Id.

26-27.)

Plaintiff was then chased by a group that included WSP Individual Defendant Itzkowitz
and "[m]any other individuals." (Id

30-31.) "As Plaintiff struggled to escape the WSP

members, he was attacked and beaten so severely it left him blind in one eye. As they were

'
Neither ofthese individuals was named as a defendant in this action.
3

assaulting Plaintiff, defendants were using homophobic slurs." (Id K 33.) "Witnesses at the
scene" called 911. (Id.1[34.) The assault"ceased" once witnesses "got involved." Qd) The
Officer Defendants arrived and "gathered witness names and contact phone numbers," as well as
witness accounts of"the assailants and their clothing, which consisted ofsome in official looking

uniforms, and many in traditional orthodox Jewish clothing," as well as a license plate number
for a car used by the assailants. (Id ^ 35.) An ambulance delivered Plaintiffto a hospital,
where he received medical treatment. (Id

36-37.)

3. The City's Investigation ofthe Assault

"While Plaintiff was being treated at the hospital," Shomrim members made "[c]alls to

the precinct." Qd K 37.) "[T]he case was closed out, marked 'Final, No Arrests.'" (Id) AJl
three Officer Defendants "personally participated in the decision not to pursue an investigation
into crimes committed against Plaintiff." (Id ^ 9.) Defendant Furda was "directly involved" in
the decision "to close the case out with no further investigation or arrests," and ultimately had

"disciplinary charges [] brought against him and he lost ten days' vacation in a negotiated

disposition ofthe disciplinary matter." (Id ^ 46.) "Although witnesses [had] described the
assailants in detail to the police at the scene ofthe incident, including that they appeared in every

way to be orthodox Jews based on their clothing and hairstyles. Sergeant Furda claims he was
the first officer to respond, and further claims that he did not even know the assailants appeared
to be Jewish." (Id)

After Plaintiff and his mother generated "press coverage ofthe matter," they "were

contacted by the Hate Crimes Unit ofthe NYPD." (Id.^ 38-39.) The Hate Crimes Unit"worked

the case up" and "develop[ed] probable cause to arrest[WSP Individual Defendants] Winkler,
Hollender, Herskovic, Fried, and Braver." (Id.^ 40.) Plaintiff asserts, however,that

Pijad the case been properly immediately forwarded to the Detective
Squad at the 90th Precinct, [] further suspects would have been
identified, and the evidence against the suspects that were identified
would have been much stronger. Instead, evidence quickly

disappeared, witnesses were able to prepare to be confronted by
questioning, and as the criminal case proceeded, witnesses who
were close to the Shomrim,who had identified some ofthe suspects,

began to recant their statements, including their sworn Grand Jury
testimony.

(Id,nil 41-42.)

Ultimately, the criminal cases against Hollender and Fried were dismissed. Braver and
Winkler each "pled guilty to misdemeanor unlawful imprisonment for their roles in the matter,
2

and Herskovic was convicted of gang assault in the second degree and unlawful imprisonment.
(Id. nil 43-44.)

In May 2015,"while [Braver's] criminal case was still pending. Braver received a special
tour ofthe NYPD's 19th Precinct station house, where he was granted access to the 'muster

room'—^an area ofthe precinct that is not open to members ofthe public." (Id K 47(footnote
omitted).)
B. Plaintiffs Causes of Action

Plaintiff asserts four causes of action under 42 U.S.C. § 1983:

(1) Fourth Amendment violations by the WSP Individual Defendants on the grounds
that they acted under color oflaw while subjecting Plaintiffto false arrest, false
imprisonment, and excessive force. (Am. Compl. KH 57-62.)
(2) Fourth Amendment violations by the City and the WSP Groups on the grounds
that the City "essentially created a private police force with special connections to
the NYPD,funded and outfitted by the City, without any supervision ofthat
^ Defendant Herskovic's state conviction occurred after the filing ofthe Amended Complaint, but was discussed at a
conference before the undersigned on April 6,2017. Plaintiff does not dispute that the conviction occurred. (See
PI. Mem.in Opp'n to Herskovic Mot. to Dismiss(Dkt. 63-3) at 1.)

force," and so the City "is liable for the damages suffered by Plaintiff because it
has created policies or customs under which unconstitutional practices regularly
occur." 04111163-68.)

(3) Fourteenth Amendment violations by the Officer Defendants on the grounds that
"the unequal treatment they gave Plaintiff as a gay Black gentile, as opposed to
the more favorable treatment they would have accorded similarly situated crime
victims who were straight, Caucasian and Jewish, as well as the more favorable
treatment they gave Plaintiffs assailants, who they knew to be straight, white
Jews." 04 UK 75-77.)

(4) Fourteenth Amendment violations by the City and the WSP Groups on the
grounds that "[t]he unequal treatment Plaintiffreceived from the NYPD was
based upon the fact that he was a gay Black gentile, as opposed to the more
favorable treatment accorded similarly situated crime victims who were straight,
Caucasian and Jewish." 04 KK 69-74.)
Plaintiff asserts two causes of action imder 42 U.S.C. § 1985:

(5) Conspiracy to violate Plaintiffs civil rights by the WSP Individual Defendants
based on the alleged assault. (Id KK 78-81.)

(6) Conspiracy to violate Plaintiffs civil rights by the Officer Defendants and the
WSP Individual Defendants based on the alleged interference with the
investigation. (Id KK 82-86.)
Plaintiffs final cause of action arises under the doctrine ofrespondent superior:

(7) Respondent superior liability for the WSP Groups for the actions ofthe WSP
Individual Defendants. (Id KK 87-88.)
n.

SUMMARY OF HOLDING

The Amended Complaint describes a network ofinappropriate ties between the NYPD,
Orthodox Jewish communities, and community policing organizations. Ifthese allegations are

true, it would appear that certain NYPD officials have woven preferential treatment into the

fabric of policing operations, producing disarmingly powerful private policing organizations that
operate without formal training or supervision. Worse still, the police may be looking the other
way when members ofthose organizations engage in criminal activity. Such behavior would
merit immediate attention from policymakers, and may well support civil liability against the
individuals involved.
6

In this action, however, no such civil liability will lie against the moving defendants.

Plaintiffs allegations tell a troubling tale, but the facts of Plaintiffs case make a poor vehicle for
certain claims, and the allegations in the Amended Complaint fail to meet the required elements
of others. Plaintiff has failed to plausibly establish that the assault constituted "state action," and
has therefore failed to establish a Fourth Amendment violation by the WSP Individual

Defendants. Plaintiff alleges that various individuals acted with discriminatory intent, but

muddles his Equal Protection claims by conflating discrimination in favor of Orthodox Jews with
discrimination against Plaintiff on the basis of his race or sexuality. Plaintiff offers generalized

accounts of preferential treatment, but offers neither concrete examples to substantiate those
claims, nor particularized allegations that provide a clear connection to this case.
Thus, even ifPlaintiffs allegations are true, they are insufficient as a matter oflaw to

sustain his claims against the Municipal Defendants or WSP Individual Defendants Braver and
Herskovic. Accordingly, the court dismisses with prejudice all claims asserted against the
moving defendants.
m.

LEGAL STANDARD FOR MOTIONS UNDER RULES 12(B)(6) AND 12(C)

Courts in the Second Circuit"employ the same standard" when analyzing motions to
dismiss under Federal Rule of Civil Procedure 12(b)(6) and motions forjudgment on the

pleadings under Rule 12(c). In re Arab Bank.PLC Alien Tort Statute Litig., 808 F.3d 144, 151
(2d Cir. 2015), as amended (Dec. 17,2015)(alterations omitted)(quoting Johnson v. Rowlev.
569 F.3d 40,43(2d Cir. 2009)). The court must"accept as true factual allegations made in the
complaint, and draw all reasonable inferences in favor ofthe plaintiff[]." Id.(alterations
omitted)(quoting Town ofBabvlon v. Fed. Hous. Fin. Agencv.699 F.3d 221,227(2d Cir.

2012)). This leniency, however,is "inapplicable to legal conclusions" or "[tjhreadbare recitals

ofthe elements of a cause of action, supported by mere conclusory statements." Ashcroft v.
Iqbal 556 U.S. 662,678(2009).

To survive a motion to dismiss,"a complaint must plead specific facts sufficient to

support a plausible inference that the defendant is liable for the misconduct alleged. While 'the
plausibility standard is not akin to a probability requirement, it asks for more than a sheer
possibility that a defendant has acted unlawfully.'" Doe v. Columbia Univ., 831 F.3d 46, 54
(2d Cir. 2016)(internal citations and alterations omitted)(quoting Iqbab 556 U.S. at 678).
IV.

SECTION 1983 CLAIMS

A. Legal Standard

"To state a claim under § 1983, a plaintiff must allege that defendants violated plaintifPs

federal rights while acting under color of state law."^ McGugan v. Aldana-Bemier. 752 F.3d
224,229(2d Cir. 2014), cert, denied. 135 S. Ct. 1703(2015)(citing 42 U.S.C. § 1983;
Washington v. Ctv. of Rockland. 373 F.3d 310, 315(2d Cir. 2004)).

"[A] municipality may not be held liable under [Section] 1983 for an injury inflicted by
its agents unless 'the challenged acts were performed pursuant to a municipal policy or custom."

Vill. ofFreeport v. Barrella. 814 F.3d 594,616(2d Cir. 2016)(quoting Little!obn v. City of
N.Y.. 795 F.3d 297, 314(2d Cir. 2015^1: see generally Monell v. Dep't of Soc. Servs.. 436 U.S.

658 (1978). A corollary ofthat standard is that if a plaintiff"fail[s] to allege any underlying
violation of bis statutory or constitutional rights by a municipal official, there can be no Monell
liability." Alston v. Sebelius. No. 13-CV-4537(SJF)(ARL),2014 WL 4374644, at *16
(E.D.N.Y. Sept. 2,2014)(citation omitted).

^ "If a defendant's conduct satisfies the state-action requirement ofthe Fourteenth Amendment,the conduct also
constitutes action 'under color of state law' for § 1983 purposes." Brentwood Acad. v. Terni. Secondary Sch.
Athletic Ass'n. 531 U.S. 288,295 n.2(2001)(citing Lugar v. Edmondson Oil Co.. 457 U.S. 922,935(1982)).
8

B. The Fourth Amendment Claim Against Defendants Braver and Herskovic
Plaintiff asserts that the WSP Individual Defendants "acted under color of law" when

they chased and assaulted him,thereby depriving Plaintiff of his Fourth Amendment rights
against false arrest, false imprisonment, and excessive force. (Am. Compl.158.) The court
finds that Plaintiff has failed to sufficiently allege state action by Defendants Braver and
Herskovic, and therefore dismisses Plaintiffs Section 1983 Fourth Amendment claim against
these individuals.

"A private entity acts under color ofstate law for purposes of § 1983 when:
(1) the State compelled the conduct [the "compulsion test"],
(2)there is a sufficiently close nexus between the State and the
private conduct [the "close nexus test" or "joint action test"], or
(3)the private conduct consisted of activity that has traditionally
been the exclusive prerogative of the State [the "public function
test"]. The fundamental question under each test is whether the
private entity's challenged actions are fairly attributable to the state.

McGugan.752 F.3d at 229(internal quotation marks and citations omitted). Plaintiff argues that
the WSP Groups and WSP Individual Defendants qualify as state actors imder both the "joint

action" and "public function" tests."^ (See Am. Compl. 20.)
1. The "Joint Action" Test

The parties spar over the proper formulation ofthe "joint action" test. In particular, they
dispute whether the court should focus on the specific conduct at issue, or on the broader

relationships that contextualize that conduct. (Compare, e.g.. Municipal Defs. Mem.in Supp. of
Mot. to Dismiss(Dkt. 51)at 8-10, with PI. Mem.in Opp'n to Municipal Defs. Mot.& Braver

^ The phrasing in the Amended Complaint could also be read as asserting a claim under the "compulsion test." (Am.
Compl.^ 59.) However,Plaintiff made no argument under that theory in opposing Defendants' dispositive motions,
and so the court deems the argument waived.

Mot.("PL Opp'n")(Dkt. 54)at 2-12.) Both formulations find support in the case law. The court
finds that Plaintiff has failed to successfully allege state action under either standard.

Courts "begin the fair attribution inquiry by identifying 'the specific conduct of which the
plaintiff complains, rather than the general characteristics ofthe entity.'" Groean v. Blooming
Grove Volunteer Ambulance Corps. 768 F.3d 259, 264(2d Cir. 2014)(quoting Fabrikant v.

French. 691 F.3d 193,207(2d Cir. 2012)). "It is not enough []for a plaintiffto plead state
involvement in 'some activity ofthe institution alleged to have inflicted injury upon a plaintiff;

rather, the plaintiff must allege that the state was involved 'with the activitv that caused the
injury' giving rise to the action." Svbalski v. Indep. Grp. Home Living Prog.. Inc.. 546 F.3d 255,
257-58(2d Cir. 2008)(emphasis added)(quoting Schlein v. Milford Hosp.. Inc.. 561 F.2d 427,
428(2d Cir. 1977)).

The court finds no allegation suggesting direct state involvement in the assault itself.
Plaintiff has not alleged that an NYPD officer or other state official played any role in targeting,
pursuing, or assaulting Plaintiff. The NYPD was first contacted by witnesses after the assault on
Plaintiff had already begun, and the assault ended before the police arrived on the scene. Thus,
under the narrower formulation ofthe "joint action" test. Plaintiff has failed to plausibly allege
that "the state is 'responsible for the specific conduct'" that caused his injuries. Fabrikant.
691 F.3d at 207(emphasis omitted)(quoting Cranlev v. Naf1 Life Ins. Co. of Vt.318 F.3d 105,
111 (2d Cir. 2003)); see, e.g.. McGugan.752 F.3d at 229-30(holding that "the forcible

medication and hospitalization of[the plaintiff] by private health care providers" could not
"fairly be attributed to the state," even though "state actors transported her" to the hospital,

because the plaintiff did "not allege that state actors requested, much less compelled [the
hospital] or its staff to involuntarily hospitalize her"(citing Doe v. Rosenberg. 166 F.3d 507

10

(2d Cir. 1999)); Grogan. 768 F.3d at 269(finding no state action in plaintiffs suspension by the
volunteer ambulance corps based, in part, on plaintiffs failure to "present[] any evidence to

suggest that the Town played any role in the disciplinary process that resulted in her
suspension").

Plaintiff is correct, however,that the "joint action" test has also been applied in a more

expansive marmer. Under the so-called "entwinement" theory,^ "state action may exist when a
private entity 'is entwined with governmental policies, or when government is entwined in its
management or control.'" Grogan,768 F.3d at 268 (quoting Brentwood Acad. v. Term.
Secondary Sch. Athletic Ass'n. 531 U.S. 288, 296(2001)). Here,too. Plaintiffs allegations fail
to plausibly establish state action.

Plaintiff emphasizes his allegations of substantial public funding for WSP Group

equipment. (PI. Opp'n at 4; see also Am.Compl.^ 20(The WSP Groups "are controlled by the
City Council through its ability to fund them.").) The Second Circuit has clearly stated,

however,that"a private entity does not become a state actor for purposes of§ 1983 merely on
the basis of'the private entity's creation, funding, licensing, or regulation by the government.'"
Fabrikant 691 F.3d at 207(quoting Cranlev. 318 F.3d at 112); see, e.g., Grogan,768 F.3d at 269

(finding no entwinement even though the volunteer ambulance corps "derives the vast majority
of its funding from public sources").

Plaintiff also highlights allegations concerning friendly interactions among WSP Group

members and NYPD personnel, public statements from NYPD and City officials applauding the

^ Plaintiff argues in favor of applying the "symbiosis" theory derived from the Supreme Court's decision in Burton
V- Wilmington Parking Authority. 365 U.S. 715(1961). (See, e.g.. PL Opp'n at 11.) "Supreme Court decisional law
has given Burton a very narrow interpretation," however. Khulumani v. Barclav Nat'l Bank Ltd.. 504 F.3d 254,
314 n.8(2d Cir. 2007)(Korman, J., concurring). This court will, instead, apply the related "entwinement" theory
that has been favorably applied in more recent Supreme Court and Second Circuit case law, as Plaintiff himself
acknowledges. (See PI. Opp'n at 11 (citing Brentwood. 531 U.S.288).)
11

WSP Groups for their work, and the various types of activities that the WSP Groups perform on
behalf of, or in conjunction with,the NYPD, (See PL Opp'n at 4-5; Am. Compl.

11-28.)

Crucially absent, however, is any allegation that the City is "entwined" in the "management or

control" ofthe WSP Groups' operations. Grogan,768 F.3d at 268(emphasis added)(citation
omitted). Indeed, although Plaintiff asserts that the WSP Groups are essentially "an extension of
the NYPD",Plaintiff explicitly acknowledges that they "are completely outside the authority of
the City of New York." (Am. Compl.f 19.)

On the facts ofthis case, the allegations of state collaboration—^without any allegation of
state control—do not rise to the level of state action necessary to impose Section 1983 liability

on a private party. See Grogan,768 F.3d at 263("The purpose ofthe state action requirement
is," in part, to "avoid imposing 'responsibility on a State for conduct it could not control.'"

(quoting Brentwood,531 U.S. at 295)); see also, e.g.. id. at 269(finding no state action in a
volunteer ambulance corps' decision to suspend the plaintiff where plaintiff"introduced no
evidence suggesting that the Town appoints any portion of[corps'] Board or has any say in [the
corps'] management or persoimel decisions"); id. at 268-69(discussing Horvath v. Westport
Library Assoc., 362 F.3d 147(2d Cir. 2004), and noting that "the decisive factor" in that case

was "the amount of control that Westport could potentially exercise over the library's 'internal
management decisions,' as shown by the town's authority to appoint one-half ofthe library's
board of directors"); Svbalski. 546 F.3d at 259("While the State ofNew York has established

procedures governing the limitations that mental health facilities place on the ability of patients
to receive visitors, the administrators ofthose facilities make the decision about whether such

limitations should be imposed," and "the state's involvement" via regulation "is insufficient to
render that decision 'state action.'").

12

The court finds that Plaintiff has failed to plausibly allege "joint action" sufficient to

impose Section 1983 liability on WSP Individual Defendants Braver or Herskovic.
2. The "Public Function" Test

"Under the public function test, [s]tate action may be found in situations where an
'

activity that traditionally has been the exclusive, or near exclusive, function ofthe State has been
contracted out to a private entity.'" Grogan. 768 F,3d at 264-65(quoting Horvath. 362 F.3d
at 151). "This test...focuses not on whether the activity delegated to the private entity has been
regularly performed by governments, but instead on whether the activity historically has been 'an
exclusive prerogative ofthe sovereign.'" Id at 265 (quoting Flagg Bros.. Inc. v. Brooks,
436 U.S. 149,159(1978)).

Plaintiff alleges that the WSP Groups purport to make arrests pursuant to New York's

statutory authority for citizens' arrest.^ (Am. Compl. 13 (citing N.Y. Crim. Proc. Law
§ 140.30).) "[I]t is well-established," however,"that private citizens may effectuate arrests

without becoming state actors."^ Forbes v. Citv of N.Y.. No. 05-CV-7331 (NRM),2008 WL
3539936, at *5 (S.D.N.Y. Aug. 12,2008)(collecting casesk see also Walters v. Suffolk Ctv.,
No.09-CV-556(MKB),2014 WL 940734, at *8(E.D.N.Y. Mar. 11,2014)(collecting cases in

^ Plaintiff argues that "the Shomrim perform [various] policing functions, including crowd control, responding to
emergency calls, and apprehension ofcriminal suspects." (PI. Opp'n at 9.) Only that last function is at issue in this
cause of action, however. There is no allegation that Plaintiffs assault was connected with WSP Group crowd
control activities. Rather, this case involves an instance where "orthodox Jewish citizens report[ed a]law

enforcement issue[] to the Shomrim groups first and []exclusively, in lieu ofthe NYPD." (Am. Compl.f 28.) This
case, then, does not present a scenario in which the WSP Groups "intervene[d] in law enforcement matters." (Id.
^ 20.) Plaintiffs assault did not become a "law enforcement matter" until eyewitnesses independently called 911.
04111134-35.)

' principle may derive from the fact that"New York law applies different substantive standards to citizens' and
This
ofiHcers' arrests." Liranzo v. United States. 690 F.3d 78,96(2d Cir. 2012)(citing 59 N.Y. Jur.2d False

Imprisonment § 37). Unlike a police officer,"a private citizen who makes an arrest does so at his peril; ifthe person
arrested did not in fact commit the crime for which he is arrested, the person who arrests him is liable for false arrest
even if he acts in good faith or has probable cause to make an arrest." Id (alteration omitted)(quoting White v.
Albanv Med. Ctr. Hosp.. 151 A.D.2d 859, 860(N.Y. App. Div. 1989)). Citizens' arrest is thus far from coextensive
with the police arrest power, and is clearly intended as an adjunct to—and not a substitute for—^that power.
13

support ofthe proposition that "[djetaining a supposed criminal while police respond does not
expose a private actor to § 1983 liability"). Plaintiff has failed to establish that the WSP Groups'
alleged reliance on the citizens' arrest statute transformed all related conduct into state action
under the "public function" test.
*

*

*

Plaintiff has failed to plausibly allege state action in connection with the assault under

either the "joint action" or "public function" tests. The court therefore dismisses Plaintiffs
Section 1983 Fourth Amendment claim against Defendants Braver and Herskovic.
C. The Fourth Amendment Claim Against the City

The City can only be held liable under Section 1983 ifPlaintiff first establishes a primary
constitutional violation. Barrella, 814 F.3d at 616. Plaintiff has failed to plausibly allege a

primary Fourth Amendment violation by Defendants Braver and Herskovic, and has not asserted
Fourth Amendment claims against any ofthe Officer Defendants. At this time, the court has not

been called upon to adjudicate the validity ofPlaintiffs Fourth Amendment claims against the
WSP Groups or the non-moving WSP Individual Defendants, The court notes, however,that

Plaintiffs pertinent allegations are substantially identical as to all WSP Individual Defendants.^
Based on the analysis above,therefore, the court finds that Plaintiff has failed to plausibly allege
state action by any WSP Individual Defendant in connection with Plaintiffs assault. Absent
state action by any individual involved in the assault. Plaintiff has failed to establish a primary
Fourth Amendment violation. Plaintiffs Fourth Amendment claim against the City must
therefore be dismissed.

® Defendant Itzkowitz is alleged to have been one of"[t]he first three people chasing Plaintiff" before the other WSP
Individual Defendants arrived. (Am. Compl.^ 30.) The court finds no basis for concluding that this allegation
might affect the determination of whether or not any Defendant's conduct constituted "state action."
14

D. The Fourteenth Amendment Claims Against the Municipal Defendants
Plaintiff asserts that the Officer Defendants "intentionally violated Plaintiffs

constitutional right to have police services administered in a nondiscriminatory manner" based
on "the unequal treatment they gave Plaintiff as a gay Black gentile, as opposed to the more
favorable treatment they would have accorded similarly situated crime victims who were

straight, Caucasian and Jewish, as well as the more favorable treatment they gave Plaintiffs
assailants, who they knew to be straight, white Jews." (Am. Compl.^ 76.) Plaintiff asserts that

the City,too, is liable for these violations. (Id. HI 70-72.) Though Plaintiff asserts these claims
under the heading "Fourteenth Amendment Equal Protection Rights" in the Amended Complaint,
Plaintiffs allegations could also be construed as asserting claims under the Due Process Clause
ofthe Fourteenth Amendment. The court finds, however,that Plaintiffs allegations fail to

adequately support either legal theory, and therefore dismisses Plaintiffs Fourteenth
Amendment claims against both the Officer Defendants and the City.
1. Legal Standards

a. Equal Protection and Selective Denial ofServices

"It is well-settled that § 1983 does not create a federal right or benefit; it simply provides
a mechanism for enforcing a right or benefit established elsewhere." AYDM Assocs.. LLC v.

Town ofPamelia. 205 F. Supp. 3d 252, 264(N.D.N.Y. 2016), affd. No. 16-3269-CV,2017 WL
2471234(2d Cir. June 8, 2017)tquoting Morris-Haves v. Bd. ofEduc. of Chester Union Free
Sch. Dist.. 423 F.3d 153,159(2d Cir. 2005)). "[T]he Equal Protection Clause Ts essentially a

direction that all persons similarly situated should be treated alike.'" Kwong v. Bloomberg.
723 F.3d 160,169(2d Cir. 2013)Iquoting Citv of Clebume v. Clebume Living Ctr.. Inc..
473 U.S. 432,439(1985)). Although "the benefit that a third party may receive fiom having
someone else arrested for a crime generally does not trigger protections under the Due Process
15

Clause." Harrington v. Ctv. of Suffolk. 607 F.3d 31,34(2d Cir. 2010)(emphasis added)(citation

omitted),"[t]he State may not, of course, selectively deny its protective services to certain
disfavored minorities without violating the Equal Protection Clause," DeShanev v. Winnebago
Ctv. Dep^t of Soc. Servs.. 489 U.S. 189,197 n.3(1989)(emphasis added)(citing Yick Wo v.

Hopkins. 118 U.S. 356(1886)); see also, e.g., Mvers v. Ctv. of Orange. 157 F.3d 66(2d Cir.
1998)(holding that a municipal policy ofinvestigating only first-filed complaints—and ignoring
cross-complaints—^violated the Equal Protection Clause).
i.

Discriminatory Intent

"It is well established that '[p]roof ofracially discriminatory intent or purpose is

required' to show a violation ofthe Equal Protection Clause." Revnolds v. Barrett,
685 F.3d 193,201 (2d Cir. 2012)tguoting Citv of Cuvahoga Falls v. Buckeve Cmtv. Hope
Found.. 538 U.S. 188,194(2003)). "[I]ntent, like any state of mind, may be proved by

circumstances reasonably supporting an inference ofthe requisite intent." United States v. Citv
ofN.Y.. 717 F.3d 72,93(2d Cir. 2013)(emphasis added) tciting Blue v. Koren. 72 F.3d 1075,

1084(2d Cir. 1995)). That said,"purposeful discrimination requires more than intent as volition
or intent as awareness of consequences. It instead involves a decisionmaker's undertaking a
course of action because of, not merely in spite of,[the action's] adverse effects upon an
identifiable group." Id.(quoting Iqbal. 556 U.S. at 676-77).
a.

Selective Prosecution vs. Selective Denial ofServices

District courts within the Second Circuit have applied two distinct formulas when

assessing challenges like the one presented here. Some courts have applied the framework for

selective prosecution—also called "selective enforcement" or "selective treatment"—^which
requires a plaintiff to show "(1)[that] the person, compared with others similarly situated, was
selectively treated; and(2)that such selective treatment was based on impermissible
16

considerations such as race [or] religion." Freedom Holdings. Inc. v. Spitzer, 357 F.Sd 205,234

(2d Cir. 2004)(quoting Lisa's Party City. Inc. v. Town of Henrietta, 185 F.3d 12,16(2d Cir.
1999)); see, e.g.. Trow. CitvofN.Y.. No. 13-CV-5082(AJN),2014 WL 4804479, at *10

(S.D.N.Y. Sept. 25,2014), affd.614 F. App'x 32(2d Cir. 2015)(applying this framework to the
claim that a detective "refused to investigate Plaintiffs complaint and threatened to arrest
Plaintiff because she is a woman and because she is Jewish").

This court agrees with the alternative view, however, which holds that selective

prosecution claims are properly "brought by plaintiffs against whom state actors selectively
enforced the law in an allegedly discriminatory manner." White v. Citv of N.Y.. 206 F. Supp. 3d

920(S.D.N.Y. 2016)(emphasis added)(collecting cases); see also Pvke v. Cuomo("Pvke I"),
258 F.3d 107,109(2d Cir. 2001)("[A] plaintiff alleging a claim of selective prosecution...
must plead and establish the existence of similarly situated individuals who were not
prosecuted."(second emphasis added)). Such claims require explicit comparators "because

courts grant special deference to the executive branch in the performance ofthe 'core' executive
function of deciding whether to prosecute." Id

This court will, instead, apply the more general ffamework for "discriminatory

application ofthe law" articulated in Pvke I. Id at 109. In that case, the Second Circuit
addressed a claim similar to the one presented here: the plaintiffs alleged that state officials
"discriminatorily declined to provide plaintiffs with police protection on the reservation because
the persons in need of protection were Native Americans." Id at 108. As the Second Circuit
explained:

[A] plaintiff seeking to establish a violation of equal protection by
intentional discriinination may proceed in "several ways," including
by pointing to a law that expressly classifies on the basis of race, a
facially neutral law or policy that has been applied in an unlawfully
17

discriminatory manner, or a facially neutral policy that has an
adverse effect and that was motivated by discriminatory animus.

Id at 110(quoting Brown v. Citv of Oneonta,221 F.3d 329, 337(2d Cir. 2000)). A plaintiff
asserting any ofthese three theories "is not obligated to show a better treated, similarly situated
group ofindividuals ofa different race in order to establish a claim of denial ofequal

protection."^ Id
In this case. Plaintiff has not alleged any express racial classifications, and so the court

construes Plaintiffs Equal Protection claim as challenging the application ofa facially neutral
policy. Plaintiff therefore '"bear[s] the burden of making out a prima facie case'" that
"Defendants' actions were 'motivated by discriminatory animus,"' and that their "'application

results in a discriminatory effect.'" Pvke v. Cuomo f'Pvke n"\ 567 F.3d 74,78(2d Cir. 2009)

(quoting Jana-Rock Constr., Inc. v. N.Y. State Dep't ofEcon. Dev.. 438 F.3d 195,204(2d Cir.
2006)).

b. Substantive Due Process and State-Created Dangers

Plaintiff acknowledges that his "argument is less a due process argument than an equal

protection argument." (PI. Opp'n at 18.) Indeed, the Amended Complaint explicitly labels the
Fourteenth Amendment claims as "Equal Protection" violations. (Am. Compl. at 19-20.) In

Plaintiffs opposition papers, however, he asserts in a footnote that "the Amended Complaint is
sufficient to support a Due Process argument as well." (PI. Opp'n at 18 & n.6 (citing Pena v.
DePrisco. 432 F.3d 98,111 (2d Cir. 2005)).

^ Though the court affirmatively selects the Pvke I standard for selective denial of services because of its
endorsement in a precedential opinion, the court notes that this choice has no bearing on the outcome ofthe case.
Under the "selective prosecution" standard described above,PlaintifPs Equal Protection claims would be dismissed
due to Plaintiffs failure to include allegations regarding any similarly situated comparators.
18

The court is conscious that the "[f]ederal pleading rules ... do not countenance dismissal

of a complaint for imperfect statement ofthe legal theory supporting the claim asserted."
Tnhnson v. Citv of Shelby. 135 S. Ct 346,346(2014)(per curiam); see also 5 Charles Alan

Wright et al., Fed. Prac. & Proc. § 1219(2016 ed.). Even "[a] failure to specify 42 U.S.C.

§ 1983 as the vehicle for pleading a constitutional claim is not a defect warranting dismissal" as

long as "plaintiffs have 'informed [the defendant] ofthe factual basis for their complaint.'"
Smith V. Camnbelh 782 F.3d 93,99(2d Cir. 2015)(quoting Johnson. 135 S. Ct. at 347)). Thus,
the court will also consider whether Plaintiff has adequately pled a Due Process violation against
either the Officer Defendants or the City.

It is well-settled that Plaintiff cannot assert a constitutionally protected property interest

based on the expectation that the NYPD would prosecute his assailants. Harrington,607 F.3d
at 34-36; Town of Castle Rock v. Gonzales,545 U.S. 748,768(2005). Under the so-called

"state-created danger" doctrine, however,"state actors may be liable under section 1983"for a
substantive Due Process violation "ifthey affirmatively created or enhanced the danger of

private violence." Okin v. Vill. of Comwall-on-Hudson Police Den't 577 F.3d 415,428(2d Cir.
2009)(emphasis added)(citing Dwares v. Citv of N.Y.. 985 F.2d 94,99(2d Cir.1993), overruled
on other grounds bv Leatherman v. Tarrant Ctv. Narcotics Intel. & Coord. Unit. 507 U.S. 163,

164(1993)).

"[T]he Due Process Clause may be violated when police officers' affirmative conduct...

creates or increases the risk of private violence." Id.(discussing Hemnhill v. Schott. 141 F.3d
412(2d Cir. 1998)). In addition,"repeated, sustained inaction by government officials, in the
face ofpotential acts of violence, might constitute 'prior assurances' rising to the level of an
affirmative condoning of private violence, even if there is no explicit approval or

19

encouragement." Id (quoting Dwares. 985 F.2d at 99, and citing Pena,432 F.3d 98). Finally,

"[t]o establish a violation of substantive due process rights, a plaintiff must demonstrate that the
state action was 'so egregious, so outrageous, that it may fairly be said to shock the

contemporary conscience.'" Id at 431 (quoting Ctv. of Sacramento v. Lewis,523 U.S. 833,
847 n.8(1998)); see also id ("[I]ntentionally inflicted injuries are the 'most likely to rise to the
conscience-shocking level.'"(quoting Lewis. 523 U.S. at 849)).
c. Qualified Immunity

"Government officials are entitled to qualified immunity with respect to 'discretionary

fimctions' performed in their official capacities." Zielar v. Abbasi. 137 S. Ct. 1843,1866(2017)
(quoting Anderson v. Creighton,483 U.S.635,638 (1987)). "The doctrine of qualified
immunity shields officials fiom civil liability so long as their conduct does not violate clearly

established constitutional rights of which a reasonable person would have known."^® Hernandez
V. Mesa. 137 S. Ct. 2003,2007(2017)(per curiam)(alteration omitted)(quoting Mullenix v.
Luna. 136 S. Ct. 305, 308(2015)(per curiam)). While the plaintiff need not show "'a case

directly on point'" to prove that"a right [is] clearly established,'existing precedent must have

placed the statutory or constitutional question beyond debate.' In other words,immunity
protects 'all but the plainly incompetent or those who knowingly violate the law.'" White v.
Paulv, 137 S. Ct. 548, 551 (2017)(per curiam)Iquoting Mullenix. 136 S. Ct. at 308).
It is clear that "[t]he Equal Protection right" against discriminatory denial ofstate
services "was clearly established" long before the conduct at issue in this lawsuit. Brown-

Thus, the qualified immunity analysis consists of"two [separate] questions:(1) whether the evidence, viewed in
the light most favorable to the plaintiff, makes out a violation ofa statutory or constitutional right, and(2)whether
that right was clearly established at the time ofthe alleged violation." Johnson v. Perry, 859 F.3d 156,170(2d Cir.
2017)fquoting Tracv v. Freshwater. 623 F.3d 90,96(2d Cir. 2010)). Courts may "exercise [their] sound discretion
in deciding which ofthe two prongs...should be addressed &st." Id,(quoting Tracv.623 F.3d at 96); see also
Pearson v. Callahan. 555 U.S. 223,236(2009).
20

Allevnev. White. No. 96-CV-2507(EHN), 1999 WL 1186809, at *5 (E.D.N.Y. Oct. 11,1999)

(citing DeShanev.489 U.S. at 197 n.3). "psr]o reasonable government official could believe it

lawful...to withhold police protection on the basis of race."'^ Id "Indeed, the 'selective
withdrawal of police protection, as when the Southern states during the Reconstruction era
refused to give police protection to their black citizens, is the prototypical denial of equal
protection.'" Carmichael v. City ofN.Y.. 34 F. Supp. 3d 252,261 (E.D.N.Y. 2014)(quoting
Hilton V. City of Wheeling. 209 F.3d 1005,1007(7th Cir. 2000)). The state-created danger

doctrine, too, was clearly established by the time of all conduct relevant here with regard to both

affirmative and passive conduct by state officials. See Okin. 577 F.3d at 427-29.
In general, courts considering qualified immunity "use an objective standard for judging
the actions ofstate and federal officials," meaning that courts "do not consider [their] subjective

intent, motives, or beliefs." Abrams v. Den't ofPub. Safetv. 764 F.3d 244,255(2d Cir. 2014)

(internal quotation marks and citations omitted). With Equal Protection claims, however,the
defendant officer's subjective intent is an element ofthe plaintiffs prima facie case of
discrimination. Revnolds. 685 F.3d at 201 (requiring "proof ofracially discriminatory intent").
The Second Circuit has articulated a blended approach for assessing motions for summary

judgment in such circumstances, which this court modifies for the procedural posture of a motion
to dismiss: when a defendant asserts "a qualified immunity defense in an action in which an

official's conduct is objectively reasonable but an unconstitutional subjective intent is alleged.
For the purpose of qualified immunity^ it is immaterial that district courts have disagreed on whether a plaintiff
must plead similarly situated comparators in order to establish a prima facie case, as described above. See, e.g.. City
ofN.Y.. 717 F.3d at 92-93 ("If a public official intentionally acts to the detriment of current or prospective public
employees on the basis ofrace, the official is not shielded by qualified immunity simply because the official might
have been unaware that at trial a burden-shifling scheme would regulate the conduct of ensuing litigation.") "For a
constitutional right to be clearly established,its contours must be sufficiently clear that a reasonable official would
understand that what he is doing violates that right." Id at 93(quoting Hope v. Pelzer. 536 U.S. 730,739(2002)).

21

the plaintiff must proffer particularized [allegations] of direct or circumstantial facts ...
supporting the claim of an improper motive in order to avoid [dismissal]." Blue,72 F.3d
at 1084. That "particularized evidence ofimproper motive may include expressions by the
officials involved regarding their state of mind, circumstances suggesting in a substantial fashion

that the plaintiff has been singled out, or the highly unusual nature ofthe actions taken." Id.
Thus, qualified immunity will not protect an officer against a claim ofrace discrimination in
determining whether a crime ought to be investigated or prosecuted, as long as the allegations of
improper motive are pled with sufficient particularity.
2. Analysis

The foregoing discussion yields the following general principles. A plaintiff who has
been denied state protective services can potentially assert Section 1983 claims under both the
Equal Protection Clause and the Due Process Clause. Those claims require very different types
of allegations, however. A successful Equal Protection claim must show that the defendant
intentionally discriminated against the plaintiff based on the plaintifFs membership in a

protected class. A "state-created danger" Due Process claim must show that the defendant
created or enhanced the danger for the plaintiff based on the defendant's assurances to a third

party. The Amended Complaint contains allegations that gesture toward both ofthese standards,
but the court finds that Plaintiff has failed to satisfy either. Plaintiffs Section 1983 Fourteenth
Amendment claims must therefore be dismissed against both the Officer Defendants and the
City.

a. The Equal Protection Claim Against the Officer Defendants
Plaintiff asserts that he received "unequal treatment" from the Officer Defendants based

on his status "as a gay Black gentile, as opposed to the more favorable treatment they would
have accorded similarly situated crime victims who were straight, Caucasian and Jewish."
22

(Am. Compl.f 76.) The court will assume, without deciding,that the circumstances surrounding
the initial closure ofPlaintiffs case were "highly unusual," Blue, 72 F.3d at 1084, given the

severity ofPlaintiffs injuries, the quality ofthe information allegedly available from

eyewitnesses, and the speed with which the matter was closed out. Even so, a police officer's
decision not to pursue a strong lead will not, standing alone, establish an Equal Protection
violation. See Lonez v. Citv ofN.Y.. 186 F. Supp. 3d 304, 312-13(S.D.N.Y. 2016)("[I]n police
failure-to-serve cases, the courts consistently have required more evidence of discriminatory

intent than a simple failure of diligence, perception, or persistence in a single case involving
minority victims."(quoting CarmichaeL 34 F. Supp. 3d at 262)). The court will therefore
consider Plaintiffs other allegations for evidence of discriminatory intent based on Plaintiffs
membership in a protected class.

As a preliminary matter, the court fmds no allegations that suggest intentional

discrimination by any Officer Defendant—or any other City official—on the basis ofPlaintiffs
Black race or gay sexual orientation. Thus,the court focuses on Plaintiffs argument that he was
denied police services based on the fact that he is not Jewish. See Sherman v. Town of Chester,
752 F.3d 554,567(2d Cir. 2014)("Jews are considered a race for the purposes of'civil rights
claims,(citing United States v. Nelson, 277 F.3d 164,177(2d Cir. 2002)).

The Amended Complaint is replete with generalized allegations that Jews receive special
treatment from the 90th Precinct and the NYPD,but these allegations all focus on criminal

suspects rather than victims. (See, e.g.. Am. Compl.

52(quoting a retired police captain as

saying in 2003 that "it almost seemed like there were two penal codes, one for the Hasidic

Such allegations might be actionable, for example, in a "selective prosecution" Equal Protection claim brought by
a non-Jewish criminal suspect, but do not appear directly relevant to an Equal Protection claim brought by a nonJewish victim.

23

community and one for everyone else"); 53 (describing "fixers" within the NYPD who "assist in
avoiding and voiding arrests of Jewish crime suspects").) Plaintiff's only comment on Jewish
victims alleges that a "full-time 'liaison' to the Hasidic community" was posted in the Kings

County District Attomey's office—^not the NYPD—^and that this liaison "had to be kept in the
loop in virtually every case involving either orthodox Jewish victims or defendants, and [] was
very influential in the disposition ofsuch matters." (Id ^ 54.) This allegation is insufficient to
establish an inference that any ofthe Officer Defendants closed out Plaintiffs case specifically
because he was not Jewish. Compare, e.g.. Bush v. Citv of Utica. No.6:12-CV-1444,2016 WL

3072384, at *7(N.D.N.Y. May 31, 2016)("[A]fact fmder could [] conclude that [Fire] Chief
Brooks's statement that he would not 'risk the lives or equipment of any fire fighters for anybody

on James Street' actually reflected [the fire department's] alleged ... policy of providing only
diminished protective services to the City's low-income neighborhoods.").
The court finds that Plaintiff has failed to sufficiently allege that any Officer Defendant

intended to discriminate against Plaintiff by deciding to close his case with no arrests. As a

result. Plaintiff has failed to establish an Equal Protection violation against the Officer
Defendants.

h. The Equal Protection Claim Against the City

Plaintiff's Equal Protection claim against the City fails for the same reasons outlined
above. Plaintiff has failed to sufficiently allege differential treatment of Jewish vesus nonJewish crime victims, and he has not offered any specific allegations at all in support of his claim

that any municipal official discriminated against him based on his Black race or gay sexual
orientation.

24

c. The Substantive Due Process Claim Against the Officer Defendants
Plaintiff fares no better under the Due Process "state-created danger" doctrine. Though

Plaintiff alleges that, in general, the orthodox Jewish community receives "[fjavoritism and

preferential treatment"(Am. Compl.152),Plaintiff has failed to offer allegations specific to any
individual Officer Defendant. "[T]he key question is whether [any] individual defendants told,
or otherwise communicated to," PlaintifFs assailants that they could accost and assault Plaintiff

"without fear ofpunishment." Pena,432 F.3d at 111. The Amended Complaint offers no basis
for concluding that, prior to Plaintiffs assault, any Officer Defendant "created or enhanced the
danger ofprivate violence" against Plaintiff. Okin. 577 F.3d at 428(citing Dwares,985 F.2d
at 99).

d. The Substantive Due Process Claim Against the City

Plaintiffs Due Process claim against the City similarly fails due to a dearth of specifics.

"[TJhere are several different ways of establishing municipal hability under Section 1983,"
Chreen v. Citv ofN.Y..465 F.3d 65,80(2d Cir. 2006),including by alleging(1)the existence of

a formal policy,(2) actions taken by officials with policymaking authority,(3)a failure to

properly train or supervise municipal employees, or(4)a practice so persistent and widespread
that it constitutes a "custom or usage," Morav v. Citv of Yonkers. 924 F. Supp. 8,12(S.D.N.Y.

1996)(collecting authority). The Amended Complaint uses language that tracks all four theories

of municipal liability for this claim. (Am.Compl.

64-66,^^ 70-71.) Plaintiff has failed to

substantiate any ofthose theories, however, and so the claim must be dismissed.

Some ofthese paragraphs appear under the heading ofPlaintiffs Fourth Amendment cause of action against the
City, but the allegations contained therein could be read as supporting a "state-created danger" theory of municipal
liability.
25

The court dispenses summarily with the first three theories described above. First,

Plaintiff has not described any explicit NYPD policies affording favorable treatment to criininal
suspects who are Jewish. Second, while the Amended Complaint does discuss actions taken by
policymakers, those decisions all relate to decisions to fund the WSP Groups' activities; such
actions cannot reasonably be construed as an assurance that future criminal activity would go

unpunished. Third, Plaintiff accuses the City offailing to train the WSP Groups—a claim that
might be actionable if the WSP Groups were found to be state actors—^but nowhere discusses
any specific failure to train or supervise municipal officials.
The final theory merits additional discussion. Plaintiff may establish municipal liability

by showing that the alleged unconstitutional practice was "so persistent or widespread as to
constitute a custom or usage with the force of law." Littleiohn, 795 F.3d at 315 (quoting
Patterson v. Ctv. of Oneida, 375 F.3d 206,226(2d Cir. 2004)). Plaintiff offers grave allegations

to this effect, most notably that "[t]he NYPD has regularly taken custody ofindividuals initially

apprehended by the Shomrim, who have significant injuries, and yet has failed to inquire into the
source ofthe injuries, which often resulted firom excessive force by the Shomrim members."

(Am.Compl.^ 64.) Further, as noted above,"Orthodox Jewish communities" allegedly have
"'fixers' and '[liaisons]' to the NYPD," who "assist in avoiding and voiding arrests ofJewish
crime suspects." (Id H 53.) If true, these allegations raise serious concerns. Plaintiff has failed
to substantiate those allegations, however, or to connect them to the particular misconduct
alleged in this case.

26

"The broader the policy a plaintiff seeks to plead, the greater the factual allegations that
are required to render it plausible." White. 206 F. Supp. 3d at 937 n.2. As District Judge Brian
M. Cogan wrote in a recent opinion:

It is one thing to assert, for example, that a municipality is training
its officers to use a particular choke-hold that carries a high risk of
asphyxiation not used by other municipalities.... It is quite
another matter to allege broadly that as a general practice, a
municipality fails to give "adequate" remedial training for officers'
violations ofthe full panoply of constitutional rights, for which the
appropriate remedial action might vary infinitely with the distinct
facts of any police encounter.

Rasmussen v. Citv ofN.Y.. 766 F. Supp. 2d 399,408(B.D.N.Y. 2011). The allegations in this
case more closely resemble the latter scenario: Plaintifflodges generalized accusations of
widespread preferential treatment of Jewish criminal suspects, apparently as against all other

groups and across all types of criminal conduct, but in a form that varies from case to case. (See
Am. Compl.^ 53 (alleging that "fixers" assist by,for example,"avoiding and voiding arrests,"
"undercharging Jewish crime suspects,...issuing discretionary 'desk appearance tickets' to
Jewish crime suspects, and intervening with the Kings County District Attorney's office").)

A plaintiff may not avoid dismissal merely by "tender[ing]'naked assertion[s]' devoid of
'further factual enhancement.'" Iqbal. 556 U.S. at 678 (quoting Bell Atl. Corp. v. Twomblv.550

U.S. 544(2007)). Absent specific examples or some other form of supporting evidence.

Plaintiffs generalized allegations of widespread misconduct are insufficient to sustain his Due
Process Monell claim. See, e.g.. White. 206 F. Supp. 3d at 938 (assessing a complaint that

alleged "[h]alf a dozen dissimilar incidents spread over the past five years" and finding those
examples insufficient "to render [plausible] the generalized, conclusory allegations ofthe
existence ofa policy of abuse towards transgender persons"); Walker v. Citv of N.Y.. No. 14-

CV-808(ER),2015 WL 4254026, at *7(S.D.N.Y. July 14,2015)(declining to impose Monell
27

liability based on generalized allegations "that the NYPD has subjected 'innocent citizens' to
excessive force during other arrests and that it has established a practice to conceal its abuse of
authority").

Even if Plaintiff had adequately alleged the existence of a widespread policy of

favoritism for Jewish criminal suspects, Plaintiff would bear the additional burden of explaining

how that policy "affirmatively created or enhanced the danger of private violence" in this
specific case. Okin. 577 F.3d at 428. Plaintiff has not alleged that any WSP Individual
Defendant was aware ofthe alleged preferential treatment for Jewish suspects, or argued that

they acted more violently as a result. Nor has Plaintiff alleged that a "iQxer" was involved in the
Officer Defendants' decision to close out Plaintiff's case without making arrests.

In sum,though the Amended Complaint paints a troubling picture, that picture does not

contain the key details necessary to assert a claim for municipal liability under the "state-created
danger" theory.
^

:jc

Plaintiffs allegations are insufficient to establish that any Officer Defendant violated the

Equal Protection Clause by intentionally discriminating against Plaintiff, or that any Officer
Defendant violated the Due Process Clause by providing assurances to Plaintiff's assailants that

their behavior would go unpunished. Plaintiff has also failed to plausibly allege a basis for
imposing liability on the City under either theory. Accordingly,the court dismisses Plaintiffs
Section 1983 Fourteenth Amendment claims against all Municipal Defendants.

28

V.

SECTION 1985 CONSPIRACY CLAIMS

A. Legal Standard

Section 1985(3) prohibits individuals from conspiring to violate a person's civil rights.
A conspiracy claim under Section 1985(3) requires a plaintiff to
allege: "(1) ^ conspiracy;(2) for the purpose of depriving, either
directly or indirectly, any person... of the equal protection of the
laws, or of equal privileges and immunities under the laws; and (3)
an act in furtherance of the conspiracy; (4) whereby a person is

either injured in his person or property or deprived of any right or
privilege ofa citizen ofthe United States."
Dolan V. Connollv. 794 F.3d 290,296(2d Cir. 2015)(quoting Britt v. Garcia,457 F.3d 264,
269 n.4(2d Cir. 2006)).

To successfully allege a conspiracy,"a plaintiff'must provide some factual basis
supporting a meeting ofthe minds, such that defendants entered into an agreement, express or
tacit, to achieve the unlawful end.'" Webb v. Goord. 340 F.3d 105,110(2d Cir. 2003)(quoting
Romer v. Morgenthau. 119 F. Supp. 2d 346, 363(S.D.N.Y. 2000)). "The conspiracy must also

be 'motivated by some racial or perhaps otherwise class-based, invidious discriminatory
animus.'" Dolan,794 F.3d at 296(quoting Cine SK8,Inc. v. Town of Henrietta, 507 F.3d 778,

791 (2d Cir. 2007)(internal quotation marks omitted)). Unlike claims under Section 1983,
claims under Section 1985 may target conduct by private parties.
B. The Section 1985 Claim Based on the Assault

Plaintiff asserts that the WSP Individual Defendants "conspired among themselves

between approximately 3:00 AM on December 1,2013, and 5:00 AM on December 1,2013,for
the purpose of depriving Plaintiff' of"equal privileges and immunities under the law,including

the privilege of using the public streets." (Am. Compl.^ 79.) The Amended Complaint contains
no indication that Plaintiff was targeted or assaulted based on the fact that he was Black or nonJewish. Plaintiff does allege, however,that after the full contingent of WSP members had
29

arrived, pursued him,and caught him, certain WSP Individual Defendants "were using

homophobic slurs" as they were assaulting him.'"^ (Id H 33.)
Prejudiced remarks can form the basis for a Section 1985(3)claim insofar as they evince
discriminatory intent; those remarks must be coupled, however, with sufficient evidence "that
defendants entered into an agreement" to achieve an unlawful end. Webb. 340 F.3d at 110. In

Walker v. Shepard, 107 F. Supp. 2d 183(N.D.N.Y. 2000),for example,the court found plausible

evidence that a group of White assailants acted with racial animus where, on the night ofthe
assault, they accosted two separate groups of Black individuals, displaying physically
threatening behavior, making verbal threats of violence, and using hostile racial slurs.
107 F. Supp. 2d at 189-90.

Here, by contrast. Plaintiff alleges that he was identified by two individuals who
"believed [he] was acting suspiciously," and who called the WSP Groups "to report [that]

suspicious behavior." (Am. Compl.

26-27.) Thus,the pursuit and assault appear to have been

motivated by suspicions of wrongdoing, with no evidence ofex ante prejudice, homophobic or
otherwise. The fact that certain unspecified individuals may have used homophobic slurs during

the assault does not permit the inference that any ofthe WSP Individual Defendants had entered
into a conspiracy to attack Plaintiff because of his sexuality. Accordingly, this claim is
dismissed against Defendants Braver and Herskovic.
C. The Section 1985 Claim Based on the Investigation
Plaintiff asserts that the Officer Defendants and the WSP Individual Defendants

conspired among themselves "for the purpose ofimpeding, hindering, obstructing, or defeating

The court assumes without deciding that homophobia can qualify as "iuvidious discriminatory animus"for the
purpose of Section 1985(3)claims. Dolan. 794 F.Sd at 296 (citation omitted);s^ Windsor v. United States.
699 F.Sd 169, 181 (2d Cir. 2012), affd. 133 S. Ct. 2675(2013)(finding that "homosexuals" constitute a "quasisuspect class" entitled to "heightened scrutiny").
30

the due course ofjustice, with intent to deny Plaintiffthe equal protection of the laws." (Am.
Compl. H 83.)
As discussed above in Section IV.D.2, however,Plaintiff has not sufficiently alleged any
connection between the Officer Defendants' decision to close out Plaintiffs case and Plaintiffs

status as a Black person, a gay person, or a non-Jewish person. Based on Plaintiffs own
allegations, the ostensible impetus appears to be linked to the identity ofthe assailants rather than
the identity ofthe victim. The inadequate basis for finding discriminatory intent proved fatal to
Plaintiff's Equal Protection claim under Section 1983, and it proves equally fatal to Plaintiff's
Section 1985(3)conspiracy claim. Dolan,794 F.3d at 296(explaining that Section 1985(3)

claims require a showing of"invidious discriminatory animus" as part of a conspiracy to violate
Equal Protection rights). Moreover,there is no allegation that any WSP Individual Defendant
played a role in the Officer Defendants' actions that night; for example. Plaintiff does not

specifically allege that any WSP Individual Defendant made "[cjalls to the precinct" on the night
ofthe assault. (Am. Compl.^ 37.)

Accordingly, this claim must be dismissed against the Officer Defendants and WSP
Individual Defendants Braver and Herskovic.
VI.

CONCLUSION

For the reasons set forth above, the Municipal Defendants' motion to dismiss(Dkt. 50)is
GRANTED;Defendant Braver's motion forjudgment on the pleadings(Dkt. 52)is GRANTED;
and Defendant Herskovic's motion to dismiss(Dkt. 63)is GRANTED. All claims against the
moving defendants are DISMISSED WITH PREJUDICE.
SO ORDERED.

s/Nicholas G. Garaufis
NICHOLAS G. GARAWFIS

Dated: Brooklyn, New York

August ^,2017

United States District Judge
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