Brown v. New York City Police Department et al

Filing 81

ORDER granting 70 Motion to Dismiss; terminating 79 Motion re: 70 MOTION to Dismiss the Second Amended Complaint., 79 MOTION TO SUPPLEMENT PLAINTIFF'S BRIEF IN OPPOSITION re: 74 Memorandum of Law in Opposition t o Motion.For the foregoing reasons, Defendants motion to dismiss is GRANTED.The Clerk of Court is directed to close the motions at Docket Numbers 70 and 79 and to close the case. The Clerk of Court is also directed to mail a copy of this order to the Plaintiff. So Ordered.. (Signed by Judge J. Paul Oetken on 3/31/2021) (js) Transmission to Docket Assistant Clerk for processing. Transmission to Orders and Judgments Clerk for processing.

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
NOEL BROWN,
Plaintiff,
18-CV-3287 (JPO)
-vORDER
CITY OF NEW YORK et al.,
Defendants.

J. PAUL OETKEN, District Judge:
On April 9, 2020, this Court issued an Opinion and Order dismissing Plaintiff Noel
Brown’s First Amended Complaint against three police officers, three correction officers, and the
City of New York (collectively, “Defendants”). (Dkt. No. 66.) Although the Court concluded
that none of Brown’s claims, as pleaded, were meritorious, it recognized that Brown may be able
to supplement his First Amended Complaint with additional facts and context to make out certain
of his claims. Accordingly, the Court afforded Brown leave to amend the claims regarding
whether he was discriminatorily policed, was subjected to an unlawful strip search and drug test,
was denied meals that accorded with his religious faith, and was denied attention to his medical
needs. Concluding that any effort to replead the other claims would be futile, the Court denied
Brown leave to replead his false arrest, property deprivation, and Monell claims.
Brown, proceeding pro se, filed his Second Amended Complaint on May 28, 2020,
repleading all of the claims from the First Amended Complaint. (Dkt. No. 67.) On July 17,
2020, Defendants moved to dismiss the Second Amended Complaint for failure to state a claim
under Federal Rule of Civil Procedure 12(b)(6). (Dkt. No. 70.) For the reasons that follow,
Defendants’ motion is granted.

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I.

Discussion
In urging dismissal of the Second Amended Complaint, Defendants argue (1) that Brown

may not revive or refashion his dismissed false arrest, property deprivation, and Monell claims
and (2) that Brown’s amended pleadings provide no new information and are therefore
insufficient. The Court considers these arguments in turn.
A.

Leave to Replead Certain Claims

Defendants emphasize that the Opinion and Order denied Brown leave to amend “with
respect to all [] federal claims relating to his arrest [aside from his equal protection claim], all
claims against the City of New York, and all state-law claims.” (Dkt. No. 66 at 15.) In
response, 1 Brown attacks the reasoning and holding of the Opinion and Order. He contends that
his false arrest “claims are not barred by HECK,” as the Court decided, “but instead enforce[]
HECK V. HUMPHREY [512 U.S. 477 (1994)].” (Dkt. No. 79 ¶ 1.) He refers to the Court’s
supposed “error in previously denying plaintiff rights to amend any claims” and suggests that the
Court “may have abused its discretion.” (Dkt. No. 79 ¶ 9.)
The Court is not persuaded to depart from the law of the case, as set forth in the Opinion
and Order. “The law of the case doctrine commands that when a court has ruled on an issue, that
decision should generally be adhered to by that court in subsequent stages in the same case
unless cogent and compelling reasons militate otherwise.” Johnson v. Holder, 564 F.3d 95, 99
(2d Cir. 2009) (internal quotation marks and citation omitted). Brown has not identified a cogent
or compelling reason for reconsideration, such as “an intervening change of controlling law, the

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The Court considers both the arguments made in Brown’s initial opposition to the motion to
dismiss the Second Amended Complaint and those made in his supplemental opposition. (See
Dkt. No. 74; Dkt. No. 79.) The motion at Docket Number 79, requesting leave to file the
supplemental opposition, is granted.

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availability of new evidence, or the need to correct a clear error or prevent manifest injustice.”
United States v. Tenzer, 213 F.3d 34, 39 (2d Cir. 2000) (internal quotation marks and citation
omitted). He has done no more than log his disagreement with the Opinion and Order’s legal
conclusions. Abiding by the law of the case, the Court decides that Brown’s effort to replead or
refashion his false arrest, property deprivation, and Monell claims was futile and that these
claims must be dismissed.
B.

Sufficiency of the Amended Pleadings

With respect to the claims that Brown could replead, Defendants argue that the Second
Amended Complaint provides sparingly few new allegations and fails to cure the deficiencies of
the First Amended Complaint. Defendants are correct that, when a plaintiff “fail[s] to provide
any additional factual support” for his earlier-dismissed claim, the “claim still fails for largely
the same reasons.” Bell v. McRoberts Protective Agency, Inc., No. 15-cv-963, 2016 WL
7192083, at *4 (S.D.N.Y. Dec. 12, 2016) (internal quotation marks omitted). Defendants are
also correct in their characterization of the Second Amended Complaint.
The Second Amended Complaint either disregards the Opinion and Order or responds to
it by adding “conclusory allegations or legal conclusions couched as factual allegations” that the
Court is “not required to credit.” Rothstein v. UBS AG, 708 F.3d 82, 94 (2d Cir. 2013). To
illustrate, the Opinion and Order held that Brown’s Equal Protection claim alleging
discriminatory policing was unsupported by facts indicating that he was “treated differently
[from] other similarly situated parties.” (Dkt. No. 66 at 5.) In an attempt to address this
deficiency, the Second Amended Complaint repeatedly refers to Brown’s arrest as the
implementation of former New York City Mayor Bloomberg’s “Stop-and-Frisk” policy (Dkt.
No. 67 ¶¶ 16, 20, 24, 29), which Floyd v. City of New York struck down because it “led
inevitably to impermissibly targeting blacks and Hispanics for stops and frisks at a higher rate
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than similarly situated whites.” 959 F. Supp. 2d 540, 590 (S.D.N.Y. 2013). Brown, who was
arrested in 2015, cannot compensate for his failure to plead facts indicating that his arrest was
racially motivated by invoking Floyd’s analysis of a policy that ended in 2013. His Equal
Protection claim still fails.
Similarly, Brown’s claims that he was subjected to an unlawful strip search and was
subjected to an unlawful drug test still fail. The Opinion and Order dismissed the former claim
because Brown did “not allege[] any facts suggesting that the strip search was conducted with
the specific intent to humiliate, harass, or abuse him.” (Dkt. No. 66 at 10.) Parroting this
standard, the Second Amended Complaint adds that the strip search was conducted “for the
purpose of humiliation.” (Dkt. No. 67 ¶ 34.) But it adds no “specific facts or circumstances
supporting this assertion,” falling short of what Rule 12(b)(6) requires. De Jesus v. Sears,
Roebuck & Co., Inc., 87 F.3d 65, 70 (2d Cir. 1996). With respect to the latter claim, the Opinion
and Order held that Brown “entirely failed to plead the circumstances surrounding the drug test”
and thus could not show that the test had been conducted in an unreasonable manner. (Dkt. No.
66 at 11.) Instead of alleging why Brown was subjected to a drug test, how he was forced to
submit to the test, or what bodily fluids he was required to provide, the Second Amended
Complaint adds that the test was “unreasonable.” (Dkt. No. 67 ¶ 39.) This conclusory
allegation, which merely restates the legal standard, is insufficient. Brown’s Fourth Amendment
claims are no stronger in the Second Amended Complaint than they were in the First Amended
Complaint, and they are again dismissed.
Finally, the Second Amended Complaint makes no effort to address Brown’s earlier
failure to allege the personal involvement of the individual defendants, with respect to his claims
that he was denied meals that accorded with his religious faith and was denied attention to his

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medical needs. In dismissing these claims in the First Amended Complaint, the Court held that
there was “no indication that Captain Firsov, or any other Defendant, had any involvement in
any decision to deny Brown a vegan meal” or that “Officer Dail, or one of the other Defendants,
was somehow responsible for the denial of medical treatment.” (Dkt. No. 66 at 8–9, 12
(emphasis added).) The Second Amended Complaint adds no new facts regarding the individual
defendants’ conduct. It does not, for instance, suggest that Captain Firsov created or was in a
position to change the requirement that Brown obtain medical clearance before receiving vegan
meals. Nor does it suggest that Officer Dail was responsible for administering Brown’s daily
medications or for making decisions regarding Brown’s allergy treatments. These claims, too,
are dismissed.
II.

Conclusion
For the foregoing reasons, Defendants’ motion to dismiss is GRANTED.
The Clerk of Court is directed to close the motions at Docket Numbers 70 and 79 and to

close the case.
The Clerk of Court is also directed to mail a copy of this order to the Plaintiff.
SO ORDERED.
Dated: March 31, 2021
New York, New York
____________________________________
J. PAUL OETKEN
United States District Judge

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