Newkirk v. City of New York et al

Filing 38

MEMORANDUM DECISION AND ORDER dated 8/28/24 that plaintiff has failed to state a claim against the individual defendants; defendants' 32 Motion to Dismiss is granted. ( Ordered by Judge Brian M. Cogan on 8/28/2024 ) (RG) Modified on 8/28/2024 no judgment at this time; City is still a party (RG).

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
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:
THERON NEWKIRK,
:
Plaintiff,
:
: MEMORANDUM
-against: DECISION AND ORDER
:
THE CITY OF NEW YORK; LT. ATKINSON;
: 21-cv-6635 (BMC)
SGT. SHAFIDIYA; SGT. FIGLIUDO, and JOHN
:
DOES A-F the name “Doe” being fictitious and
:
intended to represent those police officers, detectives
:
and supervisors who acted or commanded the
:
defendants’ actions to falsely arrest, falsely imprison,
use excessive force, and act with deliberate indifference :
:
towards Plaintiff,
:
:
Defendants.
:
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COGAN, District Judge.
The non-conclusory allegations in the amended complaint in this § 1983 action are few
and straightforward. Plaintiff was grievously injured in a shootout. He was taken to the hospital
and had surgeries over twelve days. During that time, he was under arrest, although not charged
with a crime, and chained to his hospital bed, making it more difficult to treat his pressure ulcers
and osteomyelitis. Plaintiff alleges, on “information and belief,” that the Lieutenant and two
police Sergeants named as defendants were responsible, but he alleges no facts that show their
involvement.
Defendants have moved to dismiss the individuals. The Monell claim has been severed
and stayed pending determination of this motion.
First, I reject defendants’ statute of limitations argument. The overwhelming number of
cases in this Circuit have applied New York Executive Order 202.8 to toll claims brought under

42 U.S.C. § 1983, and defendants have not cited any cases to the contrary. See, e.g., McDonald
v. City of New York, 20-cv-4614, 2022 WL 1469395, at *3 (E.D.N.Y. May 10, 2022); Barnes v.
Uzu, 20-cv-5885, 2022 WL 784036, at *1 (S.D.N.Y. March 15, 2022); Bonilla v. City of New
York, No. 20-cv-1704, 2020 WL 6637214, at *3 (E.D.N.Y. Nov. 12, 2020). Although
defendants argue that the claims against the named defendants in the amended complaint do not
relate back to the original complaint, I do not see why that matters, since the named defendants
were added within the period allowed by the Executive Order and its extensions. See N.Y. Exec.
Order No. 202.8.
However, I agree with defendants that the amended complaint fails to state a claim
against the individual defendants. “[C]onclusory allegations or legal conclusions masquerading
as factual conclusions will not suffice to prevent a motion to dismiss.” Smith v. Local 819 I.B.T.
Pension Plan, 291 F.3d 236, 240 (2d Cir. 2002). The few allegations against the individual
defendants here are entirely conclusory. In fact, the amended complaint is about as good an
example of inadequate pleading as one could imagine. It accuses each individual defendant of
being “responsible for ordering, or enforcing the orders of others, that NYPD officers and
supervisors unlawfully arrest and detain Theron, use excessive force in the detention, and
deprive Theron of reasonable and adequate medical care.” It doesn’t give any notice of what any
of the individual defendants did or didn’t do. “Responsible” is just a legal conclusion based on
facts that are not there. By adding that “upon information and belief” those three supervisors are
the ones involved in the incident without setting forth a basis for plaintiff’s information and
belief, the other allegations simply disguise that legal conclusion as a factual conclusion. See
Rosenfeld v. Lynch, 370 F. Supp. 3d 335, 348 (E.D.N.Y. 2019). 1
Plaintiff has attempted to introduce an affidavit from his mother in opposition to the motion to dismiss which, as
defendants point out, is not proper on a Rule 12(b)(6) motion. In any event, the affidavit hurts plaintiff more than it

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Plaintiff has failed to state a claim against the individual defendants. Their motion is
therefore granted.
SO ORDERED.
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U.S.D.J.
Dated: Brooklyn, New York
August 28, 2024

helps him. It confirms that the only reason plaintiff named these individual defendants is because when his mother
applied for a pass to visit plaintiff in the hospital, these officers happened to be on duty and promptly signed off on
the application. It doesn’t show they had any involvement in his arrest, detention, or medical care.
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