Dawson v. Johnson et al
Filing
124
OPINION AND ORDER re: 115 MOTION to Dismiss Consolidated. filed by Joseph Hunce, Detective Osvaldo Medina, Ronald E. Simpson, Detective Anthony Burnett, The City of Mount Vernon, Detective John Gamble, Police Officer Dante Chis olm, The Mount Vernon Police Department, Donavan S. Yoe, Police Officer Kareem Lloyd, Police Officer Billy Ekarhakos., For the foregoing reasons, Defendants' motion to dismiss is GRANTED as to all claims they seek to dismiss except for Dawson's failure to intervene claim as to all individual Defendants other than Hunce. Accordingly, what remains are that claim and the claims that Defendants did not move to dismiss, namely Dawson's excessive force and battery claims against Burnett, Lloyd, Gamble, and Exarhakos. That leaves the question of whether Plaintiffs should be granted leave to amend. Although leave to amend should be freely given "when justice so requires," Fed. R. Civ. P. 15(a)(2), " ;it is within the sound discretion of the district court to grant or deny leave to amend," McCarthy v. Dun & Bradstreet Corp., 482 F.3d 184, 200 (2d Cir. 2007). For most of the dismissed claims, leave to amend is not warranted because t he defects in Plaintiffs complaints are substantive, and Plaintiffs do not even attempt to suggest that they possess any additional facts that could cure the defect. See, e.g., Cuoco v. Moritsugu, 222 F.3d 99, 112 (2d Cir. 2000); Fischman v. Mi tsubishi Chem. Holdings Am., Inc., No. 18-CV-8188 (JMF), 2019 WL 3034866, at *7 (S.D.N.Y. July 11, 2019) (declining to grant leave to amend as to certain claims in the absence of any suggestion that additional facts could remedy defects in the plaintiffs pleading). The Court, however, grants leave to amend (1) Dawson's malicious prosecution and fair trial claims as they relate to the charges of reckless endangerment, reckless driving, and aggravated unlicensed operation of a moto r vehicle and (2) Johnson's claims for excessive force, assault, battery, and failure to intervene. Any amended complaint shall be filed by November 22, 2023. Finally, the initial pretrial conference is hereby RESCHEDULED for December 13, 2023, at 9:00 a.m. The conference will be held remotely in accordance with the Court's Individual Rules and Practices in Civil Cases, available at https://nysd.uscourts.gov/hon-jesse-m-furman. The parties are reminded that, no later than t he Thursday before the initial pretrial conference, they are required to submit a joint status letter and proposed Case Management Plan. See ECF No. 8. The Clerk of Court is directed to terminate ECF No. 115, and to terminate the City of Mount Ve rnon, the Mount Vernon Police Department, and Lieutenant Joseph Hunce as Defendants. SO ORDERED. (Signed by Judge Jesse M. Furman on 11/2/2023) ( Amended Pleadings due by 11/22/2023.), The City of Mount Vernon, The Mount Vernon Police Department, Joseph Hunce (Mount Vernon Police Department - Individually) and Joseph Hunce (Mount Vernon Police Department- and in his official capacity ) terminated. (ks)
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
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:
SHAKIRA DAWSON et al.,
:
:
Plaintiffs,
:
:
-v:
:
THE CITY OF MOUNT VERNON et al.,
:
:
Defendants.
:
:
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18-CV-1044 (JMF)
OPINION AND ORDER
JESSE M. FURMAN, United States District Judge:
This case arises from an encounter between Plaintiffs Shakira Dawson and Robert
Johnson and officers of the Mount Vernon Police Department (“MVPD”). On February 7, 2017,
Plaintiffs drove off after being approached by the police and initiated a high-speed chase through
Mount Vernon and the Bronx. See ECF No. 100 (“Dawson SAC”), ¶¶ 11-23; ECF No. 101
(“Johnson FAC”), ¶¶ 11-22. During the pursuit, several MVPD officers, Defendants here, fired
their guns at Plaintiffs, eventually hitting Dawson. Dawson SAC ¶ 24; Johnson FAC ¶ 23.
Plaintiffs were arrested and charged with various crimes, but Dawson was later acquitted on all
charges and the charges against Johnson were dismissed. Dawson SAC ¶¶ 41-46; Johnson FAC
¶¶ 29-38. Thereafter, Dawson and Johnson filed separate lawsuits, since consolidated, against
the City of Mount Vernon (“Mount Vernon”), the MVPD, and a slew of MVPD officers. 1 They
bring claims pursuant to 42 U.S.C. § 1983 for false arrest, excessive force, failure to intervene,
and malicious prosecution; a claim against Mount Vernon and the MVPD for municipal liability;
1
The individual Defendants are Lieutenant Joseph Hunce, Detective John Gamble,
Detective Anthony Burnett, Officer Kareem Lloyd, Officer Billy Exarhakos, Officer Donavan S.
Yoe, Officer Ronald E. Simpson, Officer Dante Chisolm, and Detective Osvaldo Medina.
and state claims for assault, battery, false arrest, intentional infliction of emotional distress, and
negligent hiring. Dawson SAC ¶¶ 48-110; Johnson FAC ¶¶ 40-101. Dawson also brings a
Section 1983 claim for denial of the right to a fair trial. Dawson SAC ¶¶ 73-77. Defendants now
move, pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure, for partial dismissal of
Plaintiffs’ claims — namely, for dismissal of all claims except Dawson’s claims for excessive
force and battery against Burnett, Lloyd, Gamble, and Exarhakos. 2 ECF No. 115. For the
reasons that follow, their motion is granted in part and denied in part.
For starters, Defendants’ motion is easily granted in several respects. First, all claims
against the MVPD must be and are dismissed as it is not a suable entity. See, e.g., Monroe v.
Gould, 372 F. Supp. 3d 197, 205 n.5 (S.D.N.Y. 2019). Second, Johnson’s stand-alone claim
under Section 1983 for “deprivation of civil rights” must be and is dismissed because “Section
1983 itself creates no substantive rights.” Thomas v. Roach, 165 F.3d 137, 142 (2d Cir. 1999);
see Abujayyab v. City of New York, No. 15-CV-10080 (NRB), 2018 WL 3978122, at *4
(S.D.N.Y. Aug. 20, 2018). Third, in her motion papers, Dawson explicitly “does not address
Defendants[’] arguments with respect to common law tort claims of assault, intentional infliction
of emotional distress, and negligent retention and hiring.” ECF No. 121 (“Dawson Opp’n”), at 3.
Those claims have therefore been abandoned. See Jackson v. Fed. Express, 766 F.3d 189, 198
(2d Cir. 2014); Simon v. City of New York, No. 14-CV-8391 (JMF), 2015 WL 2069436, at *2
(S.D.N.Y. May 4, 2015).
Johnson did not abandon his state-law claims, but most of them do not fare much better.
Johnson alleges that “[e]ach and all acts of the defendants alleged . . . were done by said
2
Exarhakos is spelled “Ekarhakos” in Plaintiffs’ pleadings, but the Court adopts the
“Exarhakos” spelling used by Defendants in their motion papers.
2
defendants while acting in furtherance of their employment by defendant City of Mount
Vernon.” Johnson FAC ¶ 9; see ECF No. 119 (“Johnson Opp’n”), at 24. This allegation is fatal
to his claim of negligent hiring, training, supervision, and retention under New York law, which
requires a showing that the relevant employees were acting “outside the scope of [their]
employment.” Velez v. City of New York, 730 F.3d 128, 136-37 (2d Cir. 2013). Meanwhile,
Johnson’s claim of intentional infliction of emotional distress (“IIED”) must be and is also
dismissed. An IIED claim may be invoked “only as a last resort” and cannot be brought “where
the challenged conduct falls well within the ambit of other traditional tort liability.” Salmon v.
Blesser, 802 F.3d 249, 256 (2d Cir. 2015) (internal quotation marks omitted). Here, Johnson’s
IIED claim overlaps fully with his assault claim and therefore must be dismissed as to all
Defendants.
Finally, Plaintiffs’ Monell claims against Mount Vernon are also easily dismissed. It is
true that Section 1983 plaintiffs cannot be expected to know the details of a municipality’s
internal policies, investigations, or training programs prior to discovery. See Amnesty Am. v.
Town of W. Hartford, 361 F.3d 113, 130 n.10 (2d Cir. 2004). But “this does not relieve them of
their obligation . . . to plead a facially plausible claim” of liability against a municipal defendant.
Simms v. City of New York, 480 F. App’x 627, 631 n.4 (2d Cir. 2012). Here, Plaintiffs fail to
support their conclusory allegations of a failure to train, a failure to investigate, and a pattern of
constitutional violations with specific facts. See Dawson SAC ¶¶ 78-84; Johnson FAC ¶¶ 68-74.
Their Section 1983 claims against Mount Vernon must therefore be dismissed. See, e.g., AdamsFlores v. City of New York, No. 18-CV-12150 (JMF), 2020 WL 996421, at *7 (S.D.N.Y. Mar. 2,
2020); Antic v. City of New York, 273 F. Supp. 3d 445, 459 (S.D.N.Y. 2017).
3
That leaves Plaintiffs’ claims for false arrest, malicious prosecution, excessive force, and
failure to intervene, as well as Dawson’s claim for denial of the right to a fair trial. The Court
will address each of these claims in turn.
A. False Arrest
First, Plaintiffs’ false arrest claims fail as a matter of law because there was probable
cause for their arrests. It is well established that the existence of probable cause to arrest —
“even for a crime other than the one identified by the arresting officer” — is a complete defense
to a claim of false arrest under both federal and New York law. See Figueroa v. Mazza, 825
F.3d 89, 99 (2d Cir. 2016); Jaegly v. Couch, 439 F.3d 149, 154 (2d Cir. 2006). Here, there was
probable cause to arrest for at least two different crimes: first, violation of New York Vehicle &
Traffic Law Section 375(12-a)(b), which prohibits the operation of a motor vehicle with tinted
windows on any public highway, road, or street; and second, obstruction of governmental
administration under New York Penal Law § 195.05, which prohibits interfering with the duties
of a government employee or officer in certain ways. As to the former, Plaintiffs themselves
allege that officers observed them while they were sitting in “a black Chevrolet Malibu with []
tinted windows . . . [that] precluded anyone outside the vehicle from seeing the occupants or any
activity inside [the] vehicle” and that the car’s engine was running. Johnson FAC ¶¶ 11, 13;
Dawson SAC ¶ 11, 14; Scott v. City of New York, No. 19-CV-6289 (JPO), 2022 WL 846929, at
*3 (S.D.N.Y. Mar. 22, 2022). 3 Johnson’s argument that he was not the driver of the car is beside
the point. At the time of arrest, Defendants had probable cause to believe that either Dawson or
3
Johnson’s argument that “the vehicle was not in operation at the time the officers
approached the black Malibu,” Johnson Opp’n 7, borders on frivolous. First, he himself alleges
that the car’s engine was “running.” Johnson FAC ¶ 11. Second, he and Dawson were arrested
only after they led the police on a high-speed chase.
4
Johnson was operating the vehicle because Plaintiffs, by their own admission, were sitting in a
vehicle that was so “heavily tinted” that no one outside could “see[] the occupants or any activity
inside” the vehicle. Dawson SAC ¶ 14; Johnson FAC ¶ 13; see Higginbotham v. Sylvester, 218
F. Supp. 3d 238, 241 (S.D.N.Y. 2016) (“When determining whether probably cause existed to
support an arrest, we consider those facts available to the officer at the time of arrest and
immediately before it.” (cleaned up)). 4 As to obstruction of governmental administration,
Plaintiffs expressly allege that they refused to open the window after being ordered to do so by
police and then drove away “in a state of confusion, panic and distress.” See Dawson SAC ¶¶
21-22; Johnson FAC ¶ 20. In other words, Plaintiffs “admit[] that [they] intentionally did not
obey the orders of the officers.” McKenzie v. City of New York, No. 17-CV-4899 (PAE), 2019
WL 3288267, at *7 (S.D.N.Y. July 22, 2019). Accordingly, Plaintiffs’ false arrest claims must
be and are dismissed.
B. Malicious Prosecution and Denial of the Right to a Fair Trial
Next, Plaintiffs’ malicious prosecution claims and Dawson’s claim for denial of the right
to a fair trial can be addressed together because they all suffer from the same fatal deficiency: the
failure to allege “which defendant was involved in the alleged unlawful conduct.” Adamou v.
Cnty. of Spotsylvania, No. 12-CV-7789 (ALC), 2016 WL 1064608, at *11 (S.D.N.Y. Mar. 14,
2016); accord Myers v. Moore, 326 F.R.D. 50, 60 (S.D.N.Y. 2018). Under Rule 8 of the Federal
Rules of Civil Procedure, a complaint must “give the defendant[s] fair notice of what the
plaintiff’s claim is and the grounds upon which it rests.” Phillip v. Univ. of Rochester, 316 F.3d
291, 293 (2d Cir. 2003). It is well settled that “lumping all the defendants together in each claim
4
Moreover, Plaintiffs themselves explicitly allege that they each operated the car. See
Dawson SAC ¶¶ 21-22 (alleging that Dawson was operating the car until Johnson
“commandeered” it and drove away); Johnson FAC ¶¶ 20-21 (same).
5
and providing no factual basis to distinguish their conduct[] . . . fail[s] to satisfy this minimum
standard.” Atuahene v. City of Hartford, 10 F. App’x 33, 34 (2d Cir. 2001) (summary order).
Here, Plaintiffs engage in just such impermissible group pleading by alleging merely that
“Defendants” fabricated evidence and provided false and misleading information to the district
attorney. Dawson SAC ¶ 41-44; Johnson FAC ¶ 33-36. Not once in the paragraphs Plaintiffs
devote to their malicious prosecution claims and Dawson devotes to her fair trial claim do they
specify which of the nine named Defendants were involved in the unlawful conduct. See
Dawson SAC ¶¶ 41-47, 60-77; Johnson FAC ¶¶ 33-39, 57-67. Nor do Plaintiffs allege that “all
the defendants were . . . actively involved in the complained-of conduct.” Serrata v. Givens, No.
18-CV-2016 (ARR), 2019 WL 1597297, at *5 (E.D.N.Y. Apr. 15, 2019); accord Breton v. City
of New York, No. 17-CV-9247 (JGK), 404 F. Supp. 3d 799, 815 (S.D.N.Y. 2019). Accordingly,
Defendants’ motion must be and is granted as to Plaintiffs’ malicious prosecution claims and
Dawson’s fair trial claim. See Myers, 326 F.R.D. at 60; Adamou, 2016 WL 1064608, at *11. 5
C. Excessive Force, Assault, and Battery
Next, Plaintiffs’ excessive force claims are dismissed as to Chisolm, Medina, Johnson,
Centenno, Sanchez, Burts, Rhodes, and Hunce. A police officer’s use of force is “excessive” in
5
In the alternative, Johnson’s malicious prosecution claim is subject to dismissal because
Defendants had continuing probable cause as to all of crimes for which he was arrested. See
Betts v. Shearman, 751 F.3d 78, 82 (2d Cir. 2014) (“[C]ontinuing probable cause is a complete
defense to a constitutional claim of malicious prosecution.”). As both Plaintiffs allege, Johnson
“commandeered the vehicle from [] Dawson” and initiated a high-speed police chase into the
Bronx. Johnson FAC ¶ 21; Dawson SAC ¶ 22. Defendants therefore had probable cause to
prosecute Johnson for reckless endangerment, fleeing a police officer, obstruction of
governmental administration, and resisting arrest. Based on these facts, Defendants also had
continuing probable cause to charge Dawson with fleeing a police officer, obstruction of
governmental administration, and resisting arrest. But it is not clear on the current record
whether Defendants had continuing probable cause to charge Dawson with reckless
endangerment, reckless driving, and aggravated unlicensed operation of a motor vehicle.
6
violation of the Fourth Amendment if it is objectively unreasonable in light of the facts and
circumstances known to the officer. See Maxwell v. City of New York, 380 F.3d 106, 108 (2d
Cir. 2004). To determine whether the amount of force applied to the plaintiff was unreasonable,
courts consider: “the severity of the crime at issue, whether the suspect posed an immediate
threat to the safety of the officers or others, and whether the suspect was actively resisting arrest
or attempting to evade arrest by flight.” Rogoz v. City of Hartford, 796 F.3d 236, 246 (2d Cir.
2015) (quoting Graham v. Connor, 490 U.S. 386, 396 (1989)) (cleaned up). It is well established
that “not every push or shove” or “the routine rough and tumble of an arrest” is excessive.
Medley v. Garland, 71 F.4th 35, 47-48 (2d Cir. 2023). Indeed, “[e]xcessive force claims require
‘serious or harmful,’ not ‘de minimis,’ use of force.” Gutierrez v. City of New York, No. 13-CV3502 (JGK), 2015 WL 5559498, at *7 (S.D.N.Y. Sept. 21, 2015).
Dawson argues that Plaintiffs’ excessive force claims should not be dismissed as to
Hunce, Rhodes, Burt, and Medina. Dawson Opp’n 13. But consistent with other cases in this
District, Plaintiffs’ allegation that Hunce, Rhodes, and Burt “smash[ed] the car window,” id., is
not enough to state a claim of excessive force against them, see Gutierrez, 2015 WL 5559498, at
*7. Neither is Plaintiffs’ allegation that Medina “used his ‘vehicle to strike the Malibu.’”
Dawson Opp’n 13. By the time that Medina’s vehicle struck the Malibu, Plaintiffs had fled the
police and led them on a chase through Mount Vernon and the Bronx. The somewhat intensified
“rough and tumble” was reasonable under the circumstances. Moreover, Plaintiffs do not allege
that they suffered any injuries from either the breaking of the window or the car crash, as
required to state a claim for the use of excessive force. See, e.g., Marom v. City of New York,
No. 15-CV-2017 (PKC), 2016 WL 916424, at *6 (S.D.N.Y. Mar. 7, 2016) (“[A] plaintiff must
have sustained some injury to maintain a claim of excessive force.”). Finally, neither Complaint
7
contains any allegation that Chisolm, Johnson, Centenno, or Sanchez used force at all — let
alone excessive force. Plaintiffs’ excessive force claims must be and are therefore dismissed as
to Chisolm, Medina, Johnson, Centenno, Sanchez, Burts, Rhodes, and Hunce.
Johnson’s excessive force claim as to Burnett, Lloyd, Gamble, and Ekarhakos must also
be dismissed for lack of injury. Although “the absence of significant injury . . . is not dispositive
under a Fourth Amendment analysis,” Jones v. Treubig, 963 F.3d 214, 239 (2d Cir. 2020), “a
Section 1983 plaintiff must ‘allege a tangible connection between the acts of the defendant and
the injuries suffered,’” Austin v. Pappas, No. 04-CV-7263 (KMK), 2008 WL 857528, at *2
(S.D.N.Y. Mar. 31, 2008) (quoting Bass v. Jackson, 790 F.2d 260, 263 (2d Cir. 1986)). Here,
Johnson alleges that Defendants’ actions led to “bodily injuries including, but not limited to
bruising to the torso, arms and head,” but does not claim that these injuries stemmed from the
shooting. Johnson FAC ¶ 51. And while Johnson claims that he “suffered severe emotional
distress . . . together with embarrassment, humiliation, shock, [and] fright,” Johnson FAC ¶ 96,
“[e]motional pain and suffering cannot form the basis of an excessive force claim,” Davis v.
United States, No. 03-CV-1800 (NRB), 2004 WL 324880, at *10 n.6 (S.D.N.Y. Feb. 19, 2004).
Defendants’ motion is therefore granted as to Johnson’s excessive force claim, even as to
Burnett, Lloyd, Gamble, and Exarhakos. See Chamberlain v. City of White Plains, 986 F. Supp.
2d 363, 399 (S.D.N.Y. 2013) (dismissing excessive force claim against certain defendants
because “none of these [d]efendants proximately caused any of [the plaintiff]’s injuries”).
Finally, it is well-established that “[t]he elements of New York assault and battery and
Section 1983 excessive force claims are ‘substantially identical.’” Tardif v. City of New York,
991 F.3d 394, 410 (2d Cir. 2021); Cuellar v. Love, No. 11-CV-3632 (NSR), 2014 WL 1486458,
at *13 (S.D.N.Y. Apr. 11, 2014) (“To succeed on an assault or battery claim in the law
8
enforcement context, a plaintiff must demonstrate that defendants’ conduct ‘was not reasonable
within the meaning of the New York statute concerning justification for law enforcement’s use
of force in the course of performing their duties.’” (quoting Torres-Cuesta v. Berberich, 511 F.
App’x 89, 91 (2d Cir. 2013))). Defendants’ motion is therefore granted as to Dawson’s state-law
claim of battery against Chisolm, Medina, Johnson, Centenno, Sanchez, Burts, Rhodes, and
Hunce, and Johnson’s claims of assault and battery against all individual Defendants.
D. Failure to Intervene
That leaves Plaintiffs’ claims for failure to intervene. For starters, Johnson’s claim for
failure to intervene must be and is dismissed as to all individual Defendants because “there can
be no failure to intervene claim without a primary constitutional violation.” Buari v. City of New
York, 530 F. Supp. 3d 356, 392 (S.D.N.Y. 2021). Dawson’s failure to intervene claim must also
be dismissed as to Hunce, as Dawson acknowledges that Hunce in fact “sought to stop the
officers shooting at the car by screaming at them to stop, asking them what they were shooting
at, and waiving them off.” Dawson SAC ¶ 27. Dawson does not plead any additional
allegations regarding Hunce’s actions (or lack thereof) during the shooting.
Hunce aside, because Dawson “adequately plead[s] underlying constitutional violations
and the presence of multiple NYPD officers during [the shooting] [she] may move forward to
discovery . . . . to determine which [of the other Defendants] participated directly in the alleged
constitutional violations and which officers were present and failed to intervene.” Gersbacher v.
City of New York, 134 F. Supp. 3d 711, 725 (S.D.N.Y. 2015) (internal quotation marks omitted);
see also Buari, 530 F. Supp. 3d at 392-93. Contrary to Defendants’ argument that Dawson fails
to “plead specifically that [Defendants] had a realistic opportunity to stop any officer from
allegedly firing,” Defs. Mem. 14, the “reasonable inference[]” to be drawn from her allegation
9
regarding Hunce’s efforts to stop the shooting is that other Defendants did, in fact, have a
realistic opportunity to intervene, Oakley v. Dolan, 980 F.3d 279, 282 (2d Cir. 2020). And
Dawson further alleges that Defendants who did not fire were “present and partnered with the
officers that discharged their weapons,” and specify which officer was partnered with whom.
Dawson SAC ¶ 25. To be sure, it may be difficult to establish that these officers could have
done anything to prevent the shooting, especially if it “transpired very quickly.” Hickey v. City
of New York, No. 01-CV-6506 (GEL), 2004 WL 2724079, at *13 (S.D.N.Y. Nov. 29, 2004)
(Lynch, J.); see also Bah v. City of New York, 319 F. Supp. 3d 698, 714 (S.D.N.Y. 2018);
Alvarez v. City of New York, No. 11-CV-5464 (AT), 2015 WL 1499161, at *9 (S.D.N.Y. Mar.
30, 2015). But ultimately, whether they “could have or should have intervened is an issue of fact
for the jury to resolve.” Hickey, 2004 WL 2724079, at *13; see Terebesi v. Torreso, 764 F.3d
217, 244 (2d Cir. 2014). Defendants’ motion is therefore denied as to Dawson’s claim of failure
to intervene against all individual Defendants other than Hunce. 6 The Court notes, however, that
“at the time of trial, after having had the benefit of discovery, [Plaintiff] will have to specifically
identify which, if any, of the [] Defendants [she] seeks to hold liable under a failure to intervene
theory.” Buari, 530 F. Supp. 3d at 393.
CONCLUSION
For the foregoing reasons, Defendants’ motion to dismiss is GRANTED as to all claims
they seek to dismiss except for Dawson’s failure to intervene claim as to all individual
Defendants other than Hunce. Accordingly, what remains are that claim and the claims that
6
Although “the failure to intervene theory of liability is inapplicable” to those Defendants
who were direct participants in the alleged use of excessive force, Dawson may hold those
officers “liable for one or the other.” Buchy v. City of White Plains, No. 14-CV-1806 (VB), 2015
WL 8207492, at *3 (S.D.N.Y. Dec. 7, 2015). The Court therefore construes Dawson’s failure to
intervene claim as “pleading in the alternative” as to Burnett, Lloyd, Gamble, and Exarhakos.
10
Defendants did not move to dismiss, namely Dawson’s excessive force and battery claims
against Burnett, Lloyd, Gamble, and Exarhakos.
That leaves the question of whether Plaintiffs should be granted leave to amend.
Although leave to amend should be freely given “when justice so requires,” Fed. R. Civ. P.
15(a)(2), “it is within the sound discretion of the district court to grant or deny leave to amend,”
McCarthy v. Dun & Bradstreet Corp., 482 F.3d 184, 200 (2d Cir. 2007). For most of the
dismissed claims, leave to amend is not warranted because the defects in Plaintiffs’ complaints
are substantive, and Plaintiffs do not even attempt to suggest that they possess any additional
facts that could cure the defect. See, e.g., Cuoco v. Moritsugu, 222 F.3d 99, 112 (2d Cir. 2000);
Fischman v. Mitsubishi Chem. Holdings Am., Inc., No. 18-CV-8188 (JMF), 2019 WL 3034866,
at *7 (S.D.N.Y. July 11, 2019) (declining to grant leave to amend as to certain claims in the
absence of any suggestion that additional facts could remedy defects in the plaintiff’s pleading).
The Court, however, grants leave to amend (1) Dawson’s malicious prosecution and fair trial
claims as they relate to the charges of reckless endangerment, reckless driving, and aggravated
unlicensed operation of a motor vehicle and (2) Johnson’s claims for excessive force, assault,
battery, and failure to intervene. Any amended complaint shall be filed by November 22, 2023. 7
Finally, the initial pretrial conference is hereby RESCHEDULED for December 13,
2023, at 9:00 a.m. The conference will be held remotely in accordance with the Court’s
Individual Rules and Practices in Civil Cases, available at https://nysd.uscourts.gov/hon-jesse-m-
7
Strangely, Plaintiffs’ operative complaints were filed in redline form. Under Rule 1.B of
the Court’s Individual Rules and Practices, parties must file any amended pleadings “with a
redline,” not in lieu of a clean copy of the amended filing. If either Plaintiff files an amended
complaint, that complaint should be filed in both clean and redlined form. If Dawson does not
file an amended complaint, she shall file a clean version of her current complaint (with no other
changes) by the deadline for filing an amended complaint. (If Johnson does not file an amended
complaint, there is no need for him to do so as all of his claims will have been dismissed.)
11
furman. The parties are reminded that, no later than the Thursday before the initial pretrial
conference, they are required to submit a joint status letter and proposed Case Management Plan.
See ECF No. 8.
The Clerk of Court is directed to terminate ECF No. 115, and to terminate the City of
Mount Vernon, the Mount Vernon Police Department, and Lieutenant Joseph Hunce as
Defendants.
SO ORDERED.
Dated: November 2, 2023
New York, New York
__________________________________
JESSE M. FURMAN
United States District Judge
12