Fraser v. City of New York et al

Filing 27

MEMORANDUM & ORDER granting in part and denying in part the City's 19 Motion to Dismiss. The NYPD is removed as a Defendant because the NYPD is not a suable entity. The court declines to issue an order prohibiting Ms. Fraser from further amending her complaint. So Ordered by Judge Nicholas G. Garaufis on 7/29/2022. (Lee, Tiffeny)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
JOAN FRASER,
MEMORANDUM & ORDER

Plaintiff,

20-CV-5741 (NGG) (RER)

-againstCTIY of NEW YORK, NEW YORK CTIY POLICE
DEPARTMENT, and POLICE OFFICERS JOHN
DOE 1-5
Defendants.

NICHOIAS G. GARAUFIS, United States District Judge.
Plaintiff, Joan Fraser, brings this action against the City of New
York (the "City''), the New York City Police Department (the
"NYPD"), and five unnamed NYPD officers (the "Officers"). Ms.
Fraser asserts claims under the First, Fourth, and Fourteenth
Amendments, and for assault and battery, intentional and negligent infliction of emotional distress, and negligent hiring,
retention, and supervision. Additionally, Ms. Fraser alleges two
Monell claims against the City for its unconstitutional policies and
inadequate training of police officers. The City filed a partial motion to dismiss Ms. Fraser's First and Fourteenth Amendment
claims, intentional and negligent infliction of emotional distress
claims, negligent hiring, retention, and supervision claim, and
Monell claims. The City also contends that the NYPD should be
removed as a defendant since it is not a suable entity and that
Ms. Fraser should be prohibited from making additional amendments to her complaint.
For the reasons set forth below, the City's motion to dismiss Ms.
Fraser's Fourteenth Amendment claim, intentional and negligent
infliction of emotional distress claims, negligent hiring, retention,
and supervision claim, and Monell claim for unconstitutional policies is GRANTED. The City's motion to dismiss Ms. Fraser's First

1

Amendment claim and Monell claim for inadequate training is
DENIED. The NYPD is removed as a Defendant because the
NYPD is not a suable entity. The court declines to issue an order
prohibiting further amendments to the complaint.
I.

BACKGROUND

The following summary is drawn from the facts alleged in the
Amended Complaint, which the court accepts as true. See N. Y.
Pet WelfareAss'n v. CityofN.Y., 850 F.3d 79, 86 (2d. Cir. 2017). 1
Ms. Fraser attended and recorded a protest in Brooklyn on May
29, 2020, following the death of George Floyd. (Am. Compl.
(Dkt. 14) 'l'l 13, 17.) At approximately 10:15 p.m., near the intersection of Classon and Lafayette Avenues, one or more NYPD
officers struck her twice, using their hands and batons. (Id. 'lf! 13,
18.) Ms. Fraser alleges that she was ''violeritly knocked ... to the
ground," which caused "severe, serious, and permanent injuries."
(Id. '119.) Ms. Fraser was treated in an ambulance at the scene
and sought follow-up treatment the next day at a local hospital.
(Id. 'l'I 21-23.) Ms. Fraser continues to require medical care for
the injuries sustained. (Id. 'I 23.)
II. STANDARD OF REVIEW

On a motion to dismiss for failure to state a claim under Federal
Rule of Civil Procedure 12(b)(6), the court assesses "the legal
sufficiency of the complaint, taking its factual allegations to be
true and drawing all reasonable inferences in the plaintiffs favor." Harris. v. Mills, 572 F.3d 66, 71 (2d Cir. 2009). The
complaint must "state a claim [for] relief that is plausible on its
face" by "plead[ing] factual content that allows the court to draw
the reasonable inference that the defendant is liable for the misconduct alleged." Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009).
1 When quoting

cases, and unless otherwise noted, all citations and quotation marks are omitted, and all alterations are adopted.

2

"Mere labels and conclusions or formulaic recitations of the elements of a cause of action will not do; rather, the complaint's
factual allegations must be enough to raise a right to relief above
the speculative level." Arista Records, LLCv. Doe 3,604 F.3d 110,
120 (2d Cir. 2010) (emphasis in original).
III. DISCUSSION
A. NYPD as a Suable Entity

The City argues that the NYPD should be removed as a defendant
since it is not a suable entity. The New York City Charter provides
that "[a]ll actions and proceedings for the recovery of penalties
for the violation of any law shall be brought in the name of the
city of New York and not in that of any agency." N.Y.C. Charter
Ch. 17 § 396. The NYPD is an agency of the City of New York and
is therefore a non-suable entity. See Jenkins v. City of N. Y., 478
F.3d 76, 93 n.19 (2d Cir. 2007) (affirming the district court's dismissal of claims against the NYPD as a non-suable entity).
Accordingly, the City's motion to remove the NYPD as a defendant is GRANTED. The case may proceed against the City, and if
Ms. Fraser ascertains the identities of the John Doe police officers
such that she may properly serve them, the case may proceed ·
against them as well.
B. Constitutional Claims

The City moves to dismiss Ms. Fraser's claims that (i) the Officers'
use of excessive force and indifference to her medical needs violated her rights under the Fourteenth Amendment, and (ii) the
Officers violated her rights under the First Amendment, as incorporated by the Fourteenth Amendment.
1.

Fourteenth Amendment Claim

Ms. Fraser alleges that Defendants violated her Fourteenth
Amendment rights when they restrained her, which "depriv[ed]
her of her personal liberty," and when they "fail[ed] to properly

3

and adequately address" her "physical injuries." (Am. Compl. '['[
100-07.)
a.

Excessive Force

When a plaintiff brings both Fourth and Fourteenth Amendment
claims that arise out of the same conduct by defendants, the two
claims may not proceed simultaneously. See Graham v. Connor,
490 U.S. 386,395 (1989); Bogartv. CityofN.Y., No. 13-CV-1017
(NRB), 2016 WL 4939075, at *7 (S.D.N.Y. Sept. 6, 2016). 2 In
these circumstances, courts must "identif[y] the specific constitutional right allegedly infringed by the challenged application of
force" and judge the claim by "reference to the specific constitutional standard which governs that right." Graham, 490 U.S. at
394-95 (expressing a preference for "an explicit textual source of
constitutional protection" over "the more generalized notion of
substantive due process").
Excessive force claims arising out of an arrest or seizure are evaluated under the Fourth Amendment using an "objective
reasonableness" standard. See id. at 397-98 (explaining that this
covers "excessive force-deadly or not-in the course of an arrest, investigatory stop, or other 'seizure' of a free citizen").
Where plaintiffs do not allege "that they were arrested or seized,"
courts analyze the use of excessive force under the Fourteenth
Amendment's more stringent "shocks the conscience" standard.
Tiemeyv. Davidson, 133 F. 3d 189, 199 (2d Cir. 1998).
Because Ms. Fraser's Fourteenth and Fourth Amendment claims
rely on the same alleged use of excessive force, the court cannot
allow both to proceed and must determine which constitutional
right was specifically infringed in this case. Ms. Fraser alleges that
the Officers "wrongly and affirmatively restrain[ed]" her, "depriving her of her personal liberty, by twice forcibly pushing and
2 The

City has moved to dismiss the Fourteenth Amendment claim but not
the Fourth Amendment claim.

4

striking her, and pushing her to the ground." (Am. Compl. 'I
102.) The court thus finds that the Fourth Amendment addresses
the specific constitutional right allegedly infringed because Ms.
Fraser alleges that she was seized in the course of this incident.
See Graham, 490 U.S. at 395; (see also Am. Compl. 'I 15.) Accordingly, Ms. Fraser's excessive force claim may proceed under
the Fourth Amendment standard. However, her Fourteenth
Amendment excessive force claim cannot proceed.
b.

Deliberate Indifference to Medical Needs

Ms. Fraser also alleges that Defendants "were deliberately indifferent to [her] condition and needs," in violation of the
Fourteenth Amendment. (Id. 'I 104.) Since the allegations about
the seizure and force are more appropriately brought under the
Fourth Amendment, the court construes the deliberate indifference claim to concern the alleged failure to "properly and
adequately address [her] physical injuries." (Id. '1103.)
"[T]he Supreme Court has recognized that conduct exhibiting
'deliberate indifference' to harm can support a substantive due
process claim," where the conduct shocks the conscience. Lombardi v. Whitman, 485 F.3d 73, 82 (2d Cir. 2007).3 The Court
explafoed that:
[d]eliberate indifference that shocks in one environment
may not be so patently egregious in another, and our concern with preserving the constitutional proportions of

3

Though Ms. Fraser alleges that she "was in the custody of the Defendants," (Am. Compl. '1101), she has not alleged that she was handcuffed,
arrested, or brought to a police precinct or vehicle. Since Ms. Fraser was
not in custody at the time of the incident, she can bring her deliberate indifference claim only under the Fourteenth Amendment, not under the
Eighth Amendment. See DeShaney v. Winnebago Cnty. Dept' of Soc. Servs.,
489 U.S. 189, 198-200 (1989).
.

5

substantive due process demands an exact analysis of circumstances before any abuse of· power is condemned as
conscience-shocking.
Cnty. of Sacramento v. Lewis, 523 U.S. 833,850 (1998). In Lewis,
the Court held that police conduct during a car chase does not
reach this conscience-shocking level without the "intent to harm
suspects physically or to worsen their legal plight." Id. at 854.
Courts up to and including the Supreme Court have differentiated between ''occasion[s] calling for fast action" and instances
where officials "hav[e] time to make unhurried judgments." Id.
at 851-53 ("As the very term 'deliberate indifference' implies, the
standard is sensibly employed only when actual deliberation is
practical."). In these fast-action situations, courts have noted that
"when unforeseen circumstances demand an officer's instant
judgment," the standard for what shocl<S the conscience is even
higher. Id. at 852-53. Neither negligently inflicted harm nor "an
intermediate level of fault, such as recklessness is ... enough to
impose constitutional liability." Pena v. DePrisco, 432 F.3d 98,
113 (2d Cir. 2005).
Here, the Officers were responding to the protest and did not
have time to deliberate, so a more demanding standard for deliberate indifference is appropriate. Ms. Fraser has not pleaded
any facts indicating that the Officers "fail[ed] to properly and adequately address [her] physical injuries," (see Am. Compl. 'I
103)-certainly not to the conscience-shocking level required for
a finding of deliberate indifference. She apparently quickly made
her way to an ambulance on the scene after the alleged assault.
Thus, she has failed to raise a cognizable claim for deliberate indifference under the Fourteenth Amendment.

*

*

Accordingly, because Ms. Fraser's Fourteenth Amendment excessive force claim is more appropriately brought under the Fourth

6

Amendment, and her deliberate indifference claim is not cognizable, the City's motion to dismiss the Fourteenth Amendment
claim is GRANTED.
2.

First Amendment Claim

Ms. Fraser claims that Defendants violated her First and Fourteenth Amendment rights ''by engaging in conduct that is
shocking to the conscience and is offensive to the community's
sense of fair play and decency," and that Defendants were aware
of the violations of her rights because the "First Amendment
Right to freedom of expression and speech is a Right that is so
clearly established that a reasonable person under the circumstances presented herein would have known the said conduct
was a violation," specifically her right "to assemble for peaceful
and lawful protests." (Am. Compl. 'l'f 41, 44, 46.) The City moves
to dismiss this cause of action because "it is duplicative of [her]
excessive force claim under the Fourth Amendment," and she
"fails to clearly allege what this conduct is." (Mem. in Supp. of
Mot. to Dismiss ("Mot.") (Dkt. 20) at 9.)
As to the City's claim that Ms. Fraser's First Amendment claim is

duplicative of her Fourth Amendment claim, a plaintiff may allege First and Fourth Amendment claims arising out of the same
alleged conduct. See Salmon v. Blesser, 802 F.3d 249, 255-56 (2d
Cir. 2015) (finding that the plaintiff could have properly alleged
both First and Fourth Amendment claims had plaintiff sufficiently asserted he was exercising his First Amendment rights at
the time the officers used force); Pluma v. City of N.Y., No. 13CV-2017 (LAP), 2015 WL 1623828, at *6-*8 (S.D.N.Y. 2015)
(reasoning that plaintiff could have brought a Fourth Amendment excessive force claim and a First Amendment claim had the
plaintiff alleged facts that satisfied the requirements of each
claim). Consequently, the court declines to dismiss Ms. Fraser's
claim on that basis.

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k. to the City's claim that Ms. Fraser has not clearly alleged what

the conduct is, the court agrees that the Amended Complaint
could more clearly apprise the court of the First Amendment conduct. However, that is not fatal here.
''To state a First Amendment claim, a plaintiff must allege facts
admitting a plausible inference that the defendant's actions restricted, or were retaliation against, speech or conduct protected
by the First Amendment." Salmon, 802 F.3d at 255. Ms. Fraser
alleges sufficient facts to establish that she was plausibly engag- ·
ing in expressive conduct protected by the First Amendment at
the time of the incident: She asserts that Defendants prevented
her from attending a protest and recording police activity. (Arn.
Compl. 'I 44.) Attending a protest is clearly protected under the
First Amendment. See Cox v. Louisiana, 379 U.S. 559, 574
(1965). Courts in this circuit have found that recording police
activity is also protected under the First Amendment. See Higginbotham v. City of N. Y., 105 F. Supp. 3d 369, 380 (S.D.N.Y.
2015) (holding that the First Amendment protects the filming of
police activity); Pluma, 2015 WL 1623828, at *6-*8 (S.D.N.Y.
2015) (same, and noting that "some Courts of Appeals have held
that the First Amendment protects the right to film the police,"
but "neither the Supreme Court nor the Second Circuit has addressed [it]").
At the motion to dismiss stage, the court finds that these allegations amount to a: plausible inference that the Defendants
restricted Ms. Fraser's First Amendment conduct by interfering
with her ability to participate in and record the protest. The court
recognizes, however, "that the claim, like all claims, may look
very different at the summary judgment stage." Marom v. City of
N.Y., 15-CV-2017 (PKC), 2016 WL 916424, at *11 (S.D.N.Y. Mar.
7, 2016). For these reasons, the City's motionto dismiss Ms. Fraser's First Amendment claim is DENIED.

8

C. State Law Tort Claims

The City has also moved to dismiss Ms. Fraser's claims of intentional infliction of emotional distress (IIED), negligent infliction
of emotional distress (NIED), and negligent hiring, retention, and
supervision.
1.

Intentional Infliction of Emotional Distress

Defendants move to dismiss Ms. Fraser's IIED claim because she
also alleges assault and battery,· a traditional tort, arising out of
the same set of facts. Under New York law, an IIED claim may
''be invoked only as a last resort," Turleyv. ISG Lackawanna, Inc.,
774 F.3d 140, 158 (2d Cir. 2014), "to provide relief in those circumstances where traditional theories of recovery do not," Sheila
C. v. Povich, 781 N.Y.S. 2d 342,351 (1st Dep't 2004). As a result,
the New York Court of Appeals has considered the possibility that
an IIED claim can never be brought when the challenged conduct
"falls well within the ambit of other traditional tort liability."
Fischer v. Maloney, 43 N.Y.2d 553, 557-58 (1978). The four appellate division courts in New York have concluded that it may
not. See Salmon, 802 F.3d at 256 (collecting cases). Thus, courts
in this circuit have consistently concluded that IIED claims are
duplicative of traditional tort claims. See, e.g., id. at 256-57 (holding that where the challenged conduct "would have been
actionable under state law as a battery," the IIED claim was
properly dismissed); Rubio v. Cnty. of Suffolk, No. 01-CV-1806
(TCP), 2007 WL 2993830, at *5 (E.D.N.Y. Oct. 9, 2007) (holding
that the IIED claim was duplicative of other state tort claims, including assault and battery).
Ms. Fraser's IIED claim fails because "the conduct complained of
falls well within the ambit of other traditional tort liability." Turley; 774 F.3d at 159. Specifically, the challenged conduct
amounts to an assault, and Ms. Fraser has alleged assault as a
cause of action in the Amended Complaint. Accordingly, the

9

City's motion to dismiss Ms. Fraser's claim for intentional infliction of intentional distress is GRANTED.
2.

Negligent Infliction of Emotional Distress

Defendants move to dismiss Ms: Fraser's NIED claim because, as
with IIED claims, a claim for NIED should be asserted as a last
resort. Courts in the Second Circuit have described NIED claims
as "an even greater stretch" than IIED claims given "the narrow
band of negligent emotional distress cases recognized under New
York law." Jackson v. Nassau Cnty., 552 F. Supp. 3d 350, 386
(E.D.N.Y 2021); see also Broadnax v. Gonzalez, 2 N.Y.3d 148, 153
(2004) (explaining that New York courts have shown a
"longstanding reluctance to recognize causes of action for negligent infliction of emotional distress").
As a result, NIED claims are generally dismissed when the claim

arises out of the same facts that give rise to .a traditional tort
cause of action. See, e.g., Doe v. Uber Techs., Inc., 551 F. Supp. 3d
· 341, 364 (S.D.N.Y 2021) (dismissing NIED claim because "the
allegations supporting the NIED claim track the allegations supporting plaintiffs negligent screening, hiring, and supervision
claim, as well as her negligence claim"); Buoniello v. Ethicon
Women's Health & Urology, No. 19-CV-4021 (DRH) (ARL), 2020
WL 5802276, at *4 (E.D.N.Y. Sept. 29, 2020) (dismissing plaintiffs NIED claim because it was duplicative of other tort causes
of action); Berriov. Cityof N.Y., No. 15-CV-9570 (ALC), 2017WL
118024, at *7 (S.D.N.Y. Jan. 10, 2017) ("New York does not recognize NIED or IIED causes of action where the conduct
underlying them may be addressed through traditional tort remedies."); C.T. v. Valley Stream Union Free Sch. Dist., 201 F. Supp.
3d 307, 327-28 (E.D.N.Y. 2016) (granting summary judgment to
defendants on NIED claim because it "mirror[ed]" another tort
claim).
Like her IIED claim, Ms. Fraser's NIED claim arises out of the
same facts and circumstances as her claim for assault and battery,

10

a traditional tort claim. (See Am. Compl. '1'161-69.) And she has
not provided any basis on which the court can conclude that this
claim is distinct. Ms. Fraser therefore cannot pursue the same
claim under a NIED theory. Accordingly, the City's motion to dismiss the negligent infliction of emotional distress claim is
GRANTED.
3. Negligent Hiring, Supervision, and Retention
The City argues that Ms. Fraser's negligent hiring, supervision,
and retention claim fails because the Officers were acting within
the scope of their employment. Under New York law, a plaintiff
may state a claim for negligent hiring, supervision, or retention,
by showing, "in addition to the standard elements of negligence,"
(1) that the tort-feasor and the defendant were in an em-

ployee-employer relationship . . . ; (2) that the employer
lmew or should have known of the employee's propensity for
the conduct which caused the injury prior to the injury's occurrence ... ; and (3) that the tort was committed on the
employer's premises or with the employer's chattels.
Ehrens v. Lutheran Church, 385 F.3d 232, 235 (2d Cir. 2004).
"Generally, where an employee is acting within the scope of his
or her employment . . . , no claim may proceed against the employer for negligent hiring or retention." Karoon v. N. Y. C. Transit
Auth., 659 N.Y.S.2d 27, 29 (1st Dep't 1997) (granting defendant
New York City Transit Authority summary judgment on negligent
hiring, retention, and training claim because bus driver was acting within the scope of employment). As a result, courts in this
circuit have consistently dismissed negligent hiring, retention,
and supervision claims where the defendant was acting within
the scope of employment. See, e.g., Paul v. City of N.Y., No. 16CV-1952 (VSB), 2017 WL 4271648, at *7 (S.D.N.Y. Sept. 25,
2017) (dismissing negligent hiring, training, and supervision
claim because "there are no allegations in the Amended Complaint that the officers were at any point acting outside the scope

11

of their duties and none of the facts as alleged directly or inferentially supports such a finding''); Melvin v. Cnty. of Westchester,
No. 14-CV-2995 (Kl.v1K), 2016 WL 1254394, at *21 (S.D.N.Y.
Mar. 29, 2016) (dismissing negligent hiring, retention, and training claim because there were no allegations in the complaint that
the defendants ''were acting outside scope of employment during
the course of events giving rise to Plaintiffs claim").
Here, the Officers were acting within the scope of their employment as police officers at the protest. They were not attending in
their personal capacities. Ms. Fraser concedes as much, as she
alleges that "Defendants POLICE OFFICERS . . . at all times
herein were acting in such capacity as the agent, servants, and/or
employees of the City and NYPD, within the scope of their employment." (Am. Compl. '1'112-13.)
Notwithstanding the case law in this circuit, Ms. Fraser argues
that Jaquez v. City ofNew York supports her position. See No. 10CV-2881 (KBF), 2014 WL 2696567 (S.D.N.Y. June 9, 2014). She
argues that the Jacquez court "held that an alternative pleading .
. . is satisfied when, like here, plaintiff alleges that the Defendants
City and NYPD, and their delegated supervisors knew or should
have known of Defendant-Officer's · propensity for their illegal
conduct." (Opp. at 21.) However, Ms. Fraser appears to misunderstand the holding in Jacquez. Like Ms. Fraser, the plaintiffs in
Jacquez pleaded that ((the City knew or should have known that
the individual defendants were likely to engage in the conduct
that caused ... death." 2014 WL 2696567, at *7. But the court
held that this claim failed as a matter of law because "plaintiffs
have failed to allege, even in the alternative, that the individual
defendants were acting outside the scope of their employment at
the time of the alleged misconduct." Id. So too here, Ms. Fraser
has not pled in the alternative that the Officers were acting outside the scope of their employment.

12

Because the Officers were acting in the scope of their employment, and Ms. Fraser has not pled in the alternative that the
Officers were acting outside the scope of their employment, the
City's motion to dismiss her claim for negligent hiring, supervision, and retention is GRANTED.
D. Municipal Liability Claims
A municipality may be held liable under 42 U.S.C. § 1983 when

a plaintiffs injury is the result of municipal policy or custom. See
Monell v. Dep't of Soc. Servs., 436 U.S. 658, 694 (1978). On a
rriotion to dismiss, the "mere assertion ... that a municipality has
.. : a custom or policy is insufficient in the absence of allegations
of fact tending to support, at least circumstantially, such an inference." Montero v. City of Yonkers, 890 F.3d 386, 403-04 (2d
Cir. 2018). A municipality may be held liable under§ 1983 for
the constitutional violations of its employees that "may fairly be
said to represent official policy." Monell, 436 U.S. at 694. Thus,
"[t]o hold a city liable under§ 1983 for the unconstitutional actions of its employees, a plaintiff is required to plead and prove .
. . : (1) an official policy or custom that (2) causes the plaintiff to
be subjected to (3) a denial of a constitutional right." Wray v. City
ofN. Y., 490 F.3d 189, 195 (2d Cir. 2007). But a municipality may
not be held liable solely "by application of the doctrine of respondeat superior." Pembaur v. City of Cincinnati, 475 U.S. 469,
478 (1986). And "a single incident alleged in a complaint, especially if it involved only actors below the policy-making level,
does not suffice to show a municipal policy." Decarlo v. Fry, 141
F.3d 56, 61 (2d Cir. 1998).
Ms. Fraser alleges that the City and NYPD "promulgated official
Policies, Rules, and Regulations" that "allow[], permit[], and encourag[e] the use of Excessive Force" and that the City
inadequately trains police officers. (Am. Compl. '1'178-99.)

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1.

Unconstitutional Policy

To bring a Monell claim for an unconstitutional policy, the plaintiff must show that an "action pursuant to official municipal
policy caused the[] injury," which "includes the decisions of a
government's lawmakers, the acts of its policymaking officials,
and practices so persistent and widespread as to practically have
the force of law." Connick v. Thompson, 563 U.S. 51, 60-61
(2011). At the pleading stage, the court "does not impose a probability requirement ... ; it simply calls for enough fact to raise a
reasonable expectation that discovery will reveal evidence." Bell
Atlantic v. Twombly, 550 U.S. 544, 556 (2007).
The City argues that this claim should be dismissed because single acts of excessive force by non-policymaking municipal
employees, i.e., police officers, are not sufficient to demonstrate
a municipal custom, policy, or usage that would justify municipal
liability under § 1983. A single incident is usually not sufficient
because the municipality could have acted properly and merely
hired a ''bad apple," who acted in violation of others' constitutional rights. See Oklahoma City v. Tuttle, 471 U.S. 808, 821
(1985). However, a single act may justify liability of the municipality when a plaintiff establishes that the single act is one of
many. In other words, "such acts would justify liability of the municipality if, for example, they were ... sufficiently widespread
and persistent to support a finding that they constituted a custom, policy, or usage of which supervisory authorities must have
been aware, or if a municipal custom, policy, or usage would be
inferred from evidence of deliberate indifference of supervisory
officials to such abuses." Jones v. Town of E. Haven, 691 F.3d 72,
81 (2d Cir. 2012).
Ms. Fraser refers generally to NYPD officers' consistent and widespread use of excessive force as an official policy. (See Am.
Compl. 'l'l 82-84.) In support of this argument, Ms. Fraser attached a December 2020 report on an investigation conducted

14

by the New York City Department of Investigation titled Investigation into NYPD Response to George Floyd Protests (hereinafter,
"DOI Report'') to her opposition motion. (See DOI Report (Dkt.
21-3).)4 She notes the DOI Report's findings about police officers'
"use of force and certain crowd control tactics to respond to the
Floyd protests," which included the use of batons. (See id. at 3,
42-43.)
Courts in this circuit have allowed plaintiffs to rely on governmental reports to "adequately plead the existence of de facto
customs or policies." Felix v. City of N.Y., 344 F. Supp. 3d 644,
658 (S.D.N.Y. 2018) (holding that a report from the Inspector
General for the NYPD and references to a series of lawsuits could
"substantiate policymakers' awareness of the NYPD's deficient
policies"); see also Lopez v. City of N. Y., 20-CV-2502 (LJL), 2022
WL 2078194, at *8 (S.D.N.Y June 9, 2022) (holding that a Mallen Commission report could have supported a plaintiffs claim of
widespread "police falsification" had the report established that
the falsifications continued through the relevant time period);
Kucharczyk v. Westchester Cnty., 95 F. Supp. 3d 529, 544
(S.D.N.Y. 2015) C'[T]he DOJ Report appended to Plaintiffs

4 Defendant argues that the court may not consider the DOI Report since
it was not attached to the Amended Complaint nor sufficiently referenced
in the Amended Complaint. Though the DOI Report was not attached to
the Amended Complamt, there are multiple references to and discussions
of the report within the Amended Complaint, which in the court's view,
constitutes "a clear, definite, and substantial reference." Trump v. Vance,
977 F.3d 198, 210 n.8 (2d Cir. 2020) (holding that two brief quotations
from a New York Times article in the Second Amended Complaint, which
did not include the title or date of the article, allowed the panel to consider
the entire article because the reference "[wa]s far more substantial than a
mere passing reference"); see al.5o Sira v. Morton, 380 F.3d 57, 67 (2d Cir.
2004) (holding that two documents were incorporated by reference to the
complaint where the complaint "explicitly refer[red] to and relie[d] upon"
them). However, the court does not consider the reports first referenced in
her opposition.

15

Complaint is sufficient to allege a widespread practice at [the local jail] of which policymakers were aware.").
"That a report was published after the subject incident does not
prevent plaintiffs from relying on it-provided plaintiffs plead
other allegations from which the court may infer high-level policymakers' acquiescence." Felix, 344 F. Supp. 3d at 658. In Felix,
the court found that the report "adequately reflect[ed] the City's
notice of problems that occurred prior to its publication/' where
"[i]t discusse[d] extensive research and planning'> that had occurred well in advance of the incident, and the "[r]eport was an
internal document rather than a document developed by an outside agency." Id. at 658. Thus, the court found that the plaintiffs
were "rely[ing] on the report not for the notice it provided on its
date of publication, but for the inference it supports that highlevel policymakers were aware of the alleged deficiencies at the
time of' the relevant incident. Id. So too here, Ms. Fraser attempts to rely on the DOI Report for the inference of prior notice.
However, the DOI Report, which is not an internal document,
does not indicate that the NYPD had notice of the widespread use
of excessive force prior to the protests in May 2020. At the outset,
the City correctly points out that the DOI Report did not "reach[]
the conclusion that the NYPD had unconstitutional policies or patrol guide procedures," and Ms. Fraser "fails to identify any
policies and procedures that could possibly be the cause of [her]
harm." (Mot. at 6.) In fact, the DOI Report spends few of its 111
pages discussing excessive force. Though the DOI Report mentions earlier protests implicating First Amendment freedoms,
such as the Occupy Wall Street protests, it does not state that
excessive force was an issue at these earlier protests such that the
NYPD would have had notice of the issue. (DOI Report at 6.) The
DOI Report discusses excessive force as part of its finding that
"the NYPD's primary strategy appears to have involved the application of disorder control tactics and methods." (Id. at 35.) It

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explains that "there were allegations of individual instances of
excessive force, some widely reported, such as the police vehicle
in Brooklyn driving into a crowd, excessive use of batons, and
use of pepper spray." (Id. at 42.) Staff from the NYPD's Community Affairs Unit "confirmed observing instances that they
believed to constitute disproportionate force by officers, including punching, ldcking, tackling, or using batons to strike
protesters. (Id. at 43.) The NYPD executives who were consulted
on the report "noted their agreement with disciplinary action
against officers involved in particular reported incidents," but beyond the reported incidents, "did not believe officers engaged in
widespread excessive force during the protests." (Id.) The court
has not seen anything in the DOI Report indicating that highlevel NYPD officials were aware of this issue prior to the May
2020 protests.
In her opposition motion, Ms. Fraser also directs the court to In
re New York City Policing During Summer 2020 Demonstrations,
in which the plaintiffs alleged similar excessive force claims aris- •
ing out of the same series of protests. 548 F. Supp. 3d 383, 401
(S.D.N.Y 2021). There, plaintiffs relied on the same DOI report,
in addition to non-governmental organization reports documenting police misconduct at protests in earlier decades; several
lawsuits alleging incidences of police brutality; thousands of Civilian Complaint Review Board complaints in response to NYPD
practices at the May-June 2020 protests, reports from the New
York Attorney General's Office, Human Rights Watch, and Corporation Counsel; and the incidents alleged in the complaints. Id.
at 401. Based on this comprehensive evidence, the court concluded that the plaintiffs had sufficiently demonstrated the
existence of an official policy, as compared to the single DOI Report relied on here. Id. at 402.
Even drawing all inferences in Ms. Fraser's favor, the court cannot conclude on the basis of a single allegation and one report

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published after the incident that she has stated a claim for an
unconstitutional policy of excessive force. Accordingly, the City's
motion to dismiss the Monell claim for unconstitutional policies
is GRANTED. If Ms. Fraser seeks to file another amended complaint on this cause of action, she should consider appending
more extensive evidence of the alleged unconstitutional policy,
along the lines of what the plaintiffs submitted in In re New York
City Policing During Summer 2020 Demonstrati.ons.
2.

Inadequate Training

Defendants also move to dismiss Ms. Fraser's Monell claim that
the City is liable under § 1983 for failing to adequately train the
Officers. She alleges that the City inadequately trained its officers, in particular on how to police First Amendment-protected
expression at protests. (Am. Compl. IJl] 86-99.)
Inadequate training may be the basis of a § 1983 claim where the
municipality has displayed "deliberate indifference to the rights
of persons with whom the police come into contact." See City of
Canton v. Harris, 489 U.S. 378, 388 (1989). To establish that a
municipality's failure to train its employees amounts to "deliberate indifference," a plaintiff must plead some facts that, if proven,
would tend to show that (1) "a policymalzer knows to a moral
certainty that her employees will confront a given situation"; (2)
"the situation either presents the employee with a difficult choice
of the sort that training or supervision will malze less difficult or
that there is a history of employees mishandling the situation";
and (3) "the wrong choice ... will frequently cause the deprivation of a citizen's constitutional rights." Jenkins v. City of N.Y.,
478 F.3d 76, 94 (2d Cir. 2007). Additionally, the policymalzer's
deliberate indifference in training must cause the injury and ''be
based on more than the mere fact that the misconduct occurred
in the first place." Amnesty America v. Town of W. Hartford, 361
F.3d 113, 129-31 (2d Cir. 2004).

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At the motion dismiss stage, plaintiffs alleging the failure to train
''confront pleading standards that threaten their ability to press
their claims beyond mere accusation." Osterhoudt v. City of N. Y.,
No. 10-CV-3173 (RJD) (RML), 2012 WL 4481927, at *2
(E.D.N.Y. Sept, 27, 2012). This is in large part because "[i]t is
unlikely that a plaintiff would have information about the city's
training programs or about the cause of the misconduct at the
pleading stage." Amnesty America, 361 F.3d at 130 n.10.
In recognition of these difficulties, the Second Circuit has held
that a plaintiff "need only plead that the city's failure to train
caused the constitutional violation." Id.; see also Jackson v. Nassau Cnty., 552 F. Supp. 32 350, 380-81 (E.D.N.Y. 2021) (denying
motion to dismiss inadequate training claim where plaintiff relied on the court's earlier decision in another case "discussing
allegations of misconduct by County investigators... for fabrication of evidence and coercive interrogation tactics"); Reyes v.
Cnty. of Suffolk, 995 F. Supp. 2d 215, 231 (E.D.N.Y. 2014) (allowing inadequate training claim to proceed where plaintiff
alleged three other examples of the same alleged failure); Ferrari
v. Cnty. of Suffolk, 790 F. Supp. 2d 34, 46 (E.D.N.Y. 2011) (allowing inadequate training claim to proceed even though
plaintiff "d [id] not plead much factual detail concerning Suffolk
County's training programs").
Ms. Fraser alleges that the City· failed to train police officers to
"specifically address First Amendment-Protected Expression, including the failure to facilitate a peaceful assembly." (Am.
Compl. 'I 89.) With respect to the first prong from Jenkins, she
has alleged the policymakers' knowledge that its employees
would confront this situation. Specifically, she asserts that the
City was "aware of the need to create and implement policies,
practices, and procedures ... for policing of protests and crowds
... exercising their First Amendment Rights." (See id. 'I 92.) On

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the second prong, she alleges that the City did not provide "sufficient training on policing First Amendment-Protected
Expression" despite knowing Officers would police "protests and
crowds who were exercising their First Amendment Rights." (See
id. 'fl] 92-94.) Finally, she has alleged causation-that the City's
lack of training led to her injuries. (Id. 'l 94). She supports these
allegations with references to the DOI Report, which provides,
among other things, that the NYPD does not have policies specific
to policing protests and that "other than for personnel assigned
to [the Strategic Response Group] ... , prior to the Floyd protests, NYPD lacked standardized, agencywide, in-service training
related to policing protests." (See Compl. 'l'l 90-93; DOI Report
at 34-35, 56, 60-61.) 5
For these reasons, Ms. Fraser "has nudged [her] claims across the
line from conceivable to plausible," Osterhoudt, 2012 WL
4481927, at *2 (quoting Twombly, 550 U.S. at 570), and the
City's motion to dismiss this claim is DENIED.
E. Amendments to the Complaint

Under Federal Rule of Civil Procedure 15, leave to amend should
be "freely" granted ''when justice so requires," Fed. R. Civ. P.
15(a)(2). It should not be denied "[i]n the absence of ... undue
delay, bad faith or dilatory motive on the part of the movant,
repeated failure to cure deficiencies by amendments previously
allowed, undue prejudice to the opposing party by virtue of allowance of the amendment, futility of amendment, etc." Foman
v. Davis, 371 U.S. 178, 182 (1962). "If the underlying facts or
5 Though Ms. Fraser also references a second report on policing and the
NYPD patrol guide, neither of which were submitted to the court, in alleging inadequate training, the court does not find these documents to be
persuasive. Though the second report generally finds that improvements
in training are warranted for policing protests, this finding is not specific
to the NYPD. With respect to the NYPD patrol guide, Ms. Fraser does not
point to any specific problems.

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circumstances relied upon by a plaintiff may be a proper subject
of relief, he ought to be afforded an opportunity to test his claim
on the merits." Id.
Ms. Fraser has amended her complaint once, and the record does
not indicate that she has repeatedly submitted deficient pleadings. Given the liberal standard set forth in Rule lS(a), the court
declines to ex ante issue an order prohibiting Ms. Fraser from further amending her complaint. However, she is warned not to
continue seeking relief under causes of action that would be irnpermissibly duplicative, such as her Fourteenth Amendment,
IIED, and NIED claims, or are inconsistent with her factual allegations, such as her negligent hiring, supervision, and retention
claim. Ms. Fraser's counsel is directed to conduct research on the
legal standards of any claims she asserts, so as to avoid wasting
the court's time with meritless claims.

I
l
i

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IV. CONCLUSION

For the reasons stated above, the City's motion to dismiss Ms.
Fraser's Fourteenth Amendment claim, intentional and negligent
infliction of emotional distress claims, negligent hiring, supervision, and retention claim, and Monell claim for unconstitutional
policies is GRANTED. The City's motion to dismiss Ms. Fraser's
First Amendment claim and Monell claim for inadequate training
is DENIED. The NYPD is removed as a Defendant because the
NYPD is not a suable entity. The court declines to issue an order
prohibiting Ms. Fraser from further amending her complaint. .

SO ORDERED.

Dated:

Brooklyn, New York
July{) 2022

s/Nicholas G. Garaufis

R1cHo~ G. GARAUFIS
United States District Judge

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