Rodriguez v. City of New York et al
Filing
143
MEMORANDUM AND ORDER granting 113 Motion to Dismiss. For the foregoing reasons, this Court dismisses plaintiff's complaint in its entirety without prejudice and respectfully directs the Clerk to terminate the open motions and close this case. SO ORDERED. (Signed by Judge Naomi Reice Buchwald on 11/16/2021) (mml) Transmission to Orders and Judgments Clerk for processing.
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
---------------------------------------X
GIOVANNI RODRIGUEZ (a/k/a King Karrot),
Plaintiff,
MEMORANDUM AND ORDER
18 Civ. 4805 (NRB)
- against THE CITY OF NEW YORK et al.,
Defendants.
---------------------------------------X
NAOMI REICE BUCHWALD
UNITED STATES DISTRICT JUDGE
Plaintiff Giovanni Rodriguez, a rap artist who performs under
the stage name “King Karrot,” brings this action against the City
of New York (“City”), New York City Police Department (“NYPD”)
Sergeant
Captain
Juan
Igor
Ventura,
Pinkhasov,
NYPD
Detective
NYPD
Bernard
Detective
Solomon,
Jeffrey
NYPD
Scalf,
NYPD
Sergeant Leo Nugent, NYPD Detective Sean Smith, NYPD Detective
Jason Chandler, NYPD Detective Harry Mendez, NYPD Officer Edwin
Baez,
and
John
“defendants”).
and/or
Jane
Doe
NYPD
officers
(collectively,
This case began in May of 2018, when plaintiff
filed his initial complaint, along with an order to show cause
seeking a temporary restraining order to allow him to perform at
a concert without interference from defendants.
In his complaint,
plaintiff alleged, inter alia, that he was improperly included in
the NYPD’s Criminal Group List and that the NYPD informed venues
1
that he was a gang member with the effect of preventing him from
performing.
It has since become clear that plaintiff was not
included in the Criminal Group List at the time that his complaint
was filed.
Nor has plaintiff been prevented from performing at
any concerts since he filed his complaint in 2018.
Nevertheless,
plaintiff has repeatedly sought to amend his complaint to add
numerous additional claims against an expanding cast of City
employees, with limited success.
Presently before the Court is defendants’ motion to dismiss
plaintiff’s latest effort, the Second Amended Complaint (“SAC”),
in its entirety pursuant to Federal Rules of Civil Procedure
12(b)(6) and 12(c).
Defendants argue that a release plaintiff
executed as part of a settlement in a prior case against the City
and its employees releases all of plaintiff’s claims, save his
claim alleging violations of his First Amendment rights, but that
plaintiff’s purported First Amendment claim fails to state a claim.
ECF No. 115.
In response, plaintiff cross-moved to reform the
release or, in the alternative, to vacate the judgment in the prior
lawsuit under Federal Rule of Civil Procedure 60(b)(6).
1
1
ECF No.
Plaintiff requested oral argument on the motions. ECF No. 121. The Court
has concluded, based on the parties’ submissions and the Court’s knowledge of
the history of the case, that oral argument is unnecessary as the issues before
the Court are purely legal.
2
121.
For the following reasons, defendants’ motion is granted and
plaintiff’s cross-motion is denied.
I. Background
A. The Allegations in Plaintiff’s Second Amended Complaint2
Plaintiff alleges that on May 15, 2017, he was exiting a deli
in the Bronx when he was shot by an unknown shooter who had intended
to shoot two members of the gang “Dub City,” of which plaintiff
maintains he is not a member.
SAC ¶¶ 27–31.
Plaintiff thereafter
was taken to a Bronx hospital where members of the NYPD, including
Detective Bernard Solomon, Officer Edwin Baez, and Detective Sean
Smith questioned him about the shooting and took his clothes and
cell phone.
Id. ¶¶ 32–35.
Detectives Solomon and Smith also took
a DNA swab sample from plaintiff’s mouth.
Id. ¶ 36.
On May 26,
2017, plaintiff, along with his mother and his attorney, met with
Detective Solomon to discuss the May 15 shooting.
Plaintiff
further
alleges
that
in
Id. ¶ 40.
retaliation
for
his
inability to identify the individual who shot him on May 15, 2017
Detective Solomon initiated a process whereby plaintiff’s name was
added to a so-called “gang database,” notwithstanding Detective
Solomon’s purported knowledge that plaintiff was not in fact a
2
The following facts are drawn from the operative complaint, ECF No. 92.
For the purposes of the Court’s ruling on the instant motion, the Court draws
all reasonable inferences in plaintiff’s favor. See Koch v. Christie’s Int’l
PLC, 699 F.3d 141, 145 (2d Cir. 2012).
3
member of “Dub City” or any other gang.
Id. ¶ 43.
Thereafter,
members of the NYPD are alleged to have made statements to members
of the media about plaintiff’s purported gang affiliation.
38.
Id. ¶
Members of the NYPD are also alleged to have made statements
to venue owners and concert promoters regarding plaintiff’s gang
affiliation that resulted in plaintiff being removed from two
performance lineups, thereby violating plaintiff’s constitutional
rights
and,
inter
alia,
depriving
him
of
opportunities
for
professional advancement. Id. ¶¶ 48-55. Detective Scalf, Sergeant
Nugent, and Does also allegedly entered plaintiff’s information
into the “gang database” without evidence that plaintiff had
engaged in unlawful conduct or gang related activities.
Id. ¶ 44.
Plaintiff further alleges that on September 13, 2018, Detective
Scalf,
Sergeant
Nugent,
and
Captain
Pinkhasov
plaintiff into the NYPD’s Criminal Group List.
“activated”
Id. ¶ 57.
B. The Release3
In 2015, plaintiff brought a lawsuit against the City of New
York and two New York City police officers in which he alleged he
was unlawfully detained by the NYPD (the “2015 Lawsuit”).
v. City of New York, No. 15 Civ. 08102 (ER) (S.D.N.Y.).
3
Guzman
Although
The Court takes judicial notice of the Release and settlement documents
that were publicly filed as matters of public record for their content and legal
effect. See Glob. Network Commc'ns, Inc. v. City of New York, 458 F.3d 150,
157 (2d Cir. 2006).
4
plaintiff brought that suit under another name (Giovanni Guzman),
it is undisputed that the plaintiff in the 2015 lawsuit is the
same individual as the plaintiff in this case, and that he was
represented in that suit by his current counsel in this case.
No. 122 ¶ 2.
ECF
On January 12, 2018 — less than five months before
plaintiff filed the instant case — plaintiff settled the 2015
Lawsuit with the City.4
Stipulation and Order of Dismissal,
Guzman, (S.D.N.Y. Jun. 25, 2018), ECF No. 39-1; ECF No. 114-2 at
9.
As part of this settlement, plaintiff received $30,000.
Stipulation and Order of Dismissal at 8, Guzman, (S.D.N.Y. Jun.
25, 2018), ECF No. 39-1.
In consideration, plaintiff executed a
document entitled “General Release,” which in part provided that
plaintiff released the City of New York, the NYPD officers he sued,
“their successors or assigns; and all past and present officia1s,
employees, representatives, and agents of the City of New York or
any entity represented by the Office of the Corporation Counsel”
from “any and all liability, claims, or rights of action alleging
a violation of [his] civil rights and any and all related state
law claims, from the beginning of the world to the date of this
General Release . . .” (the “2018 Release” or the “Release”).
4
Id.
While the release plaintiff signed is dated January 12, 2017, the
contemporaneous documents signed with the release and the cover letter
transmitting it are all dated in January 2018. ECF Nos. 114-1—114-4. Neither
party contests that the release was signed on January 12, 2018.
5
Plaintiff was represented by his current counsel in negotiating
the settlement of that case, and his counsel signed the Release.
ECF No. 122 ¶ 2.
publicly filed.
The settlement, including the Release, was
Stipulation and Order of Dismissal, Guzman,
(S.D.N.Y. Jun. 25, 2018), ECF No. 39-1.
Additionally, Judge
Eduardo Ramos ordered that the case be dismissed pursuant to a
stipulation
of
settlement
that
contained
the
same
language.
Stipulation and Order of Dismissal, Guzman, (S.D.N.Y. Dec. 7,
2018), ECF No. 47.
C. Procedural History
Less than five months after settling his prior lawsuit and
releasing all then-existing civil rights claims against the City
and its employees, on May 31, 2018, plaintiff filed his initial
complaint in the instant action contemporaneously with an order to
show cause seeking a temporary restraining order against the City
and its employees.
ECF No. 1.
Following a show cause hearing,
the Court issued an Order on defendants’ consent (the “May 31
Order”) temporarily restraining the NYPD from adversely affecting
plaintiff’s concert performance that had been scheduled for the
6
following day.5
See ECF No. 3.
With minor modifications designed
to make clear that defendants were not precluded from informing
concert venues that gang activity could be afoot at certain
performances, the May 31 Order was thereafter extended to several
additional performances.
See ECF Nos. 15, 20, 39.
On October 30, 2018, plaintiff filed an amended complaint
alleging fifteen causes of action including, inter alia, newly
asserted Monell and state law claims.
See ECF No. 23 at 12-20.
On March 9, 2020, the Court granted defendants’ motion to dismiss
plaintiff’s Monell and state constitutional claims, but denied
defendants’ motion insofar as it sought the dismissal of claims
against Detective Solomon.
ECF No. 51.
Plaintiff thereafter sought to amend his complaint again to
add additional claims.
ECF No. 53.
On July 17, 2020, the Court
informed plaintiff via letter that he could not bring his proposed
amended complaint for reasons including that it was duplicative of
the Monell claims dismissed with prejudice. ECF No. 56. Plaintiff
then filed a motion to reconsider the Court’s July 17, 2020 letter.
5
At the show cause hearing, the Court acknowledged plaintiff’s First
Amendment right to perform in the upcoming concerts but made clear that it had
no intention of interfering with the NYPD’s law enforcement functions by, for
example, requiring that the NYPD remove plaintiff’s name from the database.
See ECF No. 4 at 9:11-18.
7
ECF No. 61.
The Court denied this motion, but permitted plaintiff
to move to amend his first amended complaint.
ECF No. 65.
On September 17, 2020, plaintiff filed a motion to amend his
first amended complaint.
ECF No. 69.
On December 9, 2020, we
instructed plaintiff to provide a copy of his complaint identifying
the defendants for each claim.
ECF No. 78.
This Court held a
hearing on February 4, 2021, and subsequently granted plaintiff’s
motion to amend in part and denied it in part, finding that several
of the claims plaintiff had attempted to assert were duplicative
of claims that the Court had already dismissed.
ECF No. 87.
Subsequently, on March 2, 2021, plaintiff filed the SAC, which
is the subject of the instant motion.
ECF No. 92.
The SAC asserts
eleven causes of action including: (1) violations of plaintiff’s
Fourteenth Amendment rights, (2) violations of plaintiff’s First
Amendment
rights,
(3)
violations
of
plaintiff’s
Fourth
and
Fourteenth Amendment rights by individual police officers, (4)
defamation of character, (5) slander per se, (6) violations by law
enforcement of New York City Human Rights Law,6 (7) tortious
interference with contract, (8)intentional infliction of emotional
distress, (9) negligence, (10) negligent hiring, training, and
6
The Court notes that in this claim, plaintiff includes an allegation that
defendants violated the Equal Protection Clause of the Fourteenth Amendment.
SAC ¶ 115.
The Court has already dismissed plaintiff’s Monell claims, and
subsequently, denied plaintiff’s request to bring an Equal Protection Claim
because such claim was already dismissed. ECF No. 87 at 19.
8
supervision under state law, and (11) respondeat superior against
the City of New York.7
Id.
Defendants now move to dismiss the complaint in its entirety
and for judgment on the pleadings.
In response, plaintiff cross-
moves to reform the 2018 Release or, in the alternative, to vacate
the judgment in the 2015 Lawsuit under Federal Rule of Civil
Procedure 60(b).
II.
Legal Standard
To
withstand
a
Rule
12(b)(6)
motion,
the
non-movant’s
pleading “must contain sufficient factual matter, accepted as
true, to ‘state a claim to relief that is plausible on its face.’”
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl.
Corp. v. Twombly, 550 U.S. 544, 570 (2007)).
“A claim has facial
plausibility when the [pleaded] fact[s] . . . allow[] the court to
draw the reasonable inference that the [movant] is liable for the
misconduct alleged.”
Id.
While the Court accepts the truth of
the pleaded facts, it is “not bound to accept as true a legal
conclusion couched as a factual allegation.”
Iqbal, 556 U.S. at
7
This Court has also already noted that respondeat superior is not a standalone claim. See ECF No. 51 at 9 (dismissing respondeat superior claim) and
citing Farb v. Baldwin Union Free Sch. Dist., No. 05 Civ. 0596, 2006 WL 8439500,
at *11 (E.D.N.Y. Mar. 3, 2006) for the proposition that “[p]laintiff’s Complaint
incorrectly refers to respondeat superior as a separate and independent cause
of action when in fact it is a theory that must attach to an underlying claim.”).
9
678 (quoting Twombly, 550 U.S. at 555).
“Threadbare recitals of
the elements of a cause of action, supported by mere conclusory
statements, do not suffice.”
Brown v. Daikin Am., Inc., 756 F.3d
219, 225 (2d Cir. 2014) (quoting Iqbal, 556 U.S. at 678).
When ruling on a motion to dismiss pursuant to Rule 12(b)(6),
a district court may consider “the facts alleged in the pleadings,
documents attached as exhibits or incorporated by reference in the
pleadings and matters of which judicial notice may be taken.”
Samuels v. Air Transp. Local 504, 992 F.2d 12, 15 (2d Cir. 1993).
For a document to be incorporated by reference, “the complaint
must make ‘a clear, definite and substantial reference to the
documents.’”
DeLuca v. AccessIT Grp., Inc., 695 F. Supp. 2d 54,
60 (S.D.N.Y. 2010) (quoting Helprin v. Harcourt, Inc., 277 F. Supp.
2d 327, 330-31 (S.D.N.Y. 2003)).
“[W]here a document is not
incorporated by reference, the court may nevertheless consider it
where the complaint ‘relies heavily upon its terms and effect,’
which renders the document ‘integral’ to the complaint.”
Chambers
v. Time Warner, Inc., 282 F.3d 147, 153 (2d Cir. 2002) (quoting
Int’l Audiotext Network, Inc. v. Am. Tel. & Tel. Co., 62 F.3d 69,
72 (2d Cir. 1995)).
“The same standard applicable to ... motions to dismiss [for
failure to state a claim upon which relief can be granted, pursuant
to Federal Rule of Civil Procedure 12(b)(6),] applies to ...
10
motions for judgment on the pleadings [pursuant to Federal Rule of
Civil Procedure 12(c)].”
Butnick v. Gen. Motors Corp., 472 F.
App'x 80, 82 (2d Cir. 2012).
Likewise, “[i]n adjudicating a Rule
12(c) motion, the court may consider the complaint, the answer,
any
written
documents
attached
to
them
or
incorporated
by
reference, and any matter of which the court can take judicial
notice.”
Gracia v. City of New York, No. 16 Civ. 7329, 2017 WL
4286319, at *2 (S.D.N.Y. Sept. 26, 2017). Courts may take judicial
notice of matters of public record, such as court filings, “not
for the truth of the matters asserted in the other litigation, but
rather to establish the fact of such litigation and related
filings.”
Glob. Network Commc'ns, Inc. v. City of New York, 458
F.3d
157
150,
(2d
Cir.
2006)
(internal
quotation
marks
and
citations omitted).
III. Discussion
A. The Release Bars
Amendment Claims
Plaintiff’s
Fourth
and
Fourteenth
1. Defendants Have Not Waived Their Right to Assert that
the Release Bars Plaintiff’s Claims
Defendants argue that the vast majority of plaintiff’s claims
are
barred
by
the
Release,
including
plaintiff’s
Fourteenth
Amendment claim against defendants Chandler, Mendez, Ventura,
Pinkhasov, Scalf, Nugent, and Does, along with plaintiff’s Fourth
and Fourteenth Amendment claims against defendants Solomon, Baez,
11
Smith, and Does.
Plaintiff argues that the defendants have waived
their right to assert that the Release bars his claims because
defendants did not rely on the Release in their prior partial
motion to dismiss, in their initial answer, or in their amended
answer.
Plaintiff’s argument ignores the fact that the instant motion
is neither a motion to dismiss plaintiff’s initial complaint nor
plaintiff’s first amended complaint.
dismiss plaintiff’s SAC.
Rather, it is a motion to
Prior to this motion, defendants had not
filed any responsive pleading to the SAC.
Just as plaintiff
asserted new allegations in his SAC, defendants are also permitted
to assert new defenses in response.
See Deutsch v. Health Ins.
Plan of Greater New York, 573 F. Supp. 1443, 1445 (S.D.N.Y. 1983)
(“An amended complaint represents a plaintiff's second bite at the
apple, and a defendant should be accorded the same privilege.”);
McFadden v. Monroe Cty. Sheriff, No. 00 Civ. 6034, 2002 WL 1348508,
at
*3
(W.D.N.Y.
Apr.
16,
2002)
(explaining
that
defendants’
response to the amended complaint “was not an amended answer, but
merely an answer” and so defendants were permitted to raise
previously unpled affirmative defense).
As such, defendants are
permitted to advance the position that the Release bars plaintiff’s
claims.
12
Further, plaintiff’s objection that defendants should have
asserted this defense earlier in this case is immaterial — and
indeed, borders on disingenuous — because both plaintiff and his
counsel have had actual knowledge of the Release since before
filing this case. “[W]hen a defendant omits an affirmative defense
from his answer, a district court may nevertheless decline to deem
the defense waived if the plaintiff had notice and an opportunity
to respond.”
Jones v. Bryant Park Mkt. Events, LLC, 658 F. App'x
621, 624 (2d Cir. 2016). Plaintiff, along with his counsel, signed
the Release on January 12, 2018 – less than five months before
bringing this lawsuit.
2015
lawsuit
under
a
In contrast, because plaintiff brought the
different
name,
it
is
not
clear
that
defendants knew of the Release before raising the defense in the
instant motion.8
In any event, plaintiff has had notice that
defendants planned to assert that the Release barred nearly all
his claims since March 22, 2021.
See ECF No. 122-6 at 2.
Plaintiff’s opposition to this motion was not filed until almost
three months later, on June 16, 2021.
ECF No. 121.
Plaintiff has
therefore had more than sufficient notice of the defense, and this
Court declines to find that defendants have waived any right to
assert it.
Moreover, there is no prejudice to plaintiff in
8
The Court notes that it appears that counsel for defendants did not
discover the Release until about March 22, 2021. ECF No. 122-6 at 2.
13
allowing defendants to assert the Release because the impact of
the Release is a matter of law.
2. The Settlement Agreement Binds the Parties
Plaintiff next claims that the Release does not apply to the
parties in this action because certain of the defendants did not
sign the Release and are not in privity with the City of New York.9
This interpretation conflicts with the plain terms of the Release,
which provides in relevant part that plaintiff releases “all past
and present officials, employees, representatives, and agents of
the City of New York or any entity represented by the Office of
Corporation Counsel . . . .”
ECF No. 114-4 at 2.
Courts in this
District have repeatedly held that the language identical to the
language at issue in the Release releases all employees of the
City.
See, e.g., Staples v. Officer Acolatza, No. 14 Civ. 3922,
2016 WL 4533560, at *3 (S.D.N.Y. Mar. 9, 2016) (finding release
with identical language barred suit against the City and its
employees for alleged conduct predating the release and collecting
cases).
Here, the defendants consist of the City and police
officers employed by the City.
As such, the defendants are
expressly and unambiguously covered by the terms of the Release.
9
York.
Plaintiff does not dispute that the release applies to the City of New
14
3. The Release is Unambiguous
Further, the text of the Release itself is unambiguous as to
what claims are released.
“Ambiguity is determined within the
four corners of the document,” not by outside sources.
GE Funding
Capital Mkt. Servs. v. Neb. Inv. Fin. Auth., 767 F. App'x 110, 112
(2d Cir. 2019) (citation omitted).
The Release provides in
relevant part that plaintiff releases the City and its employees
from “any and all liability, claims, or rights of action alleging
a violation of my civil rights and any and all related state law
claims, from the beginning of the world to the date of this General
Release, including claims for costs, expenses, and attorneys’
fees.”
ECF No. 114-2 at 9.
plaintiff was paid $30,000.
In consideration of this Release,
Id.
Numerous courts have considered
the relevant language in the Release and found it unambiguous.
See, e.g., Cuadrado v. Zito, No. 13 Civ. 3321, 2014 WL 1508609, at
*3 (S.D.N.Y. Mar. 21, 2014) (“This language is unambiguous.”);
Lloyd v. City of New York, No. 15 Civ. 8539, 2017 WL 2266876, at
*3
(S.D.N.Y.
May
22,
2017)
(finding
identical
“language
unambiguously precludes [plaintiff] from bringing civil rights
claims that accrued before May 29, 2015 against the City or its
employees.”).
Plaintiff
claims
that
the
language
of
the
Release
is
inherently ambiguous because, in addition to releasing all civil
15
rights claims, plaintiff further released “any and all claims . .
. arising out of [his] Medicare eligibility and receipt of Medicare
benefits related to the claimed injury” in the 2015 Lawsuit, ECF
No. 114-2 at 9, and because contemporaneous documents sent with
the Release show that plaintiff executed the Release in order to
settle the 2015 Lawsuit.
unavailing.
The
ECF No. 114-2.
language
plaintiff
This argument is wholly
references
provides
additional, but not inconsistent reason for the Release.
an
The
language does not create any ambiguity as to the Release’s scope.
See Lloyd, 2017 WL 2266876, at *3 (rejecting the argument that
attaching documents that “recite[d] the parties' agreement to
dismiss this litigation in light of their settlement” to a nearly
identical release limited the scope of the release) (internal
quotation marks and citations omitted).
There is no contradiction
in plaintiff releasing numerous categories of claims in connection
with settling the 2015 Lawsuit.
In support of his argument that the text is ambiguous,
plaintiff relies heavily on Smith v. New York, No. 12 Civ. 4851,
2014
WL
6783194
inapposite.
(E.D.N.Y.
Dec.
2,
2014).
Smith
is
plainly
In Smith, plaintiff signed a release where, in
addition to stating that plaintiff released “any and all liability,
claims, or rights of action alleging a violation of [] civil
rights,” the release and stipulation continued to state that
16
“[t]his stipulation shall not be admissible in, nor is it related
to, any other litigation.”
Smith, 2014 WL 6783194, at *7.
The
Court found that this apparent contradiction regarding whether the
stipulation could apply in other litigation made the stipulation
ambiguous.
Id.
While plaintiff contends that the language in the
release in Smith is “nearly identical to the language in the
General Release,” ECF No. 121 at 12, he omits that the key
difference between the release in Smith and the Release here is
that the Release here does not include the language that created
the ambiguity in Smith.
Release
itself
or
Here, there is no language, either in the
in
the
additional
documents
signed
contemporaneously, that limits the admissibility of the Release,
and thus, no contradiction that could give rise to an ambiguity.10
Smith is therefore entirely irrelevant.
4. All Federal Claims but the First Amendment Claim Are
Plainly Released by the Release
Further, it is clear that the Release’s language regarding
“civil
rights
claims”
applies
to
plaintiff’s
federal
claims.
Plaintiff has brought claims under Section 1983, in which he
alleges that the certain of the defendants violated (1) his
10
The Court also notes that in Smith, the plaintiff suffered from numerous
mental conditions, read only at a second-grade level, and was unrepresented by
counsel when he signed the release. Smith, 2014 WL 6783194, at *5. In contrast,
plaintiff here was represented by counsel, who also signed the Release. ECF.
No. 114-2 at 9.
17
Fourteenth Amendment right to substantive due process by accusing
him of being a gang member and preventing him from performing at
concerts in 2017, (2) his First Amendment rights, and (3) his
Fourth
and
Fourteenth
Amendment
rights
through
questioning
plaintiff and seizing his property and DNA sample on May 15, 2017.
Plaintiff attempts to avoid the plain language of the Release by
contending that these causes of action are not barred by the
Release because they are claims for civil liberties, rather than
civil rights.
This distinction is purely semantic.
In fact,
plaintiff himself describes his claims as civil rights claims in
the
SAC.
SAC
¶
4
(claiming
jurisdiction
is
proper
because
plaintiff “seeks to recover damages and secure relief under the
laws providing for the protection of civil rights”) (emphasis
added).
Regardless of plaintiff’s choice of language, courts in
this Circuit have repeatedly found that claims brought under
Section 1983 are civil rights claims.
See Dinkins v. Decoteau,
No. 15 Civ. 8914, 2016 WL 3637169, at *3 (S.D.N.Y. June 29, 2016)
(holding a release of “civil rights claims” releases claims brought
under § 1983); Lloyd, 2017 WL 2266876, at *3 (same).
As such,
plaintiff’s Fourth and Fourteenth amendment claims are plainly
“civil rights claims” as described in the Release.
Moreover, with the exception of certain facts giving rise to
the First Amendment Claim, each of the facts giving rise to these
18
federal claims is alleged to have occurred in 2017, and thus are
covered and barred by the Release.
Plaintiff’s first cause of
action is a Fourteenth Amendment claim for violation of his right
to substantive due process against defendants Chandler, Mendez,
Ventura, Pinkhasov, Scalf, Nugent, and Does.
This claim arises
from these defendants allegedly “falsely accusing him of being a
‘gang
member’
and
later
using
that
false
classification
as
justification to prevent him from performing at concert’s [sic] in
which he was booked, including on September 19, 2017 at SOB’s and
October 19, 2017 at Parrilla Latina.”
11
SAC ¶ 64.
Plaintiff also
alleges Fourth and Fourteenth Amendment claims against Defendants
Solomon, Baez, Smith, and Does that arise out of the allegations
of illegal searches and seizures on May 15, 2017.
Id. ¶¶ 85-91.
Since all relevant events giving rise to these claims occurred
before January 12, 2018, these claims are thus within “any and all
11
Plaintiff also alleges in connection with his Fourteenth Amendment due
process claim that defendants made false statements to members of the media
that he was “with Dub City” and that defendants made statements about his
arrests as a minor, without referencing the dates of these statements. SAC ¶
65.
However, at oral argument on February 4, 2021, plaintiff’s counsel
represented that these statements were made in May of 2017, and thus are subject
to release. ECF No. 85 at 14:22-24. But even assuming that these statements
were made after the date of the Release, plaintiff has not alleged any injury
arising from these statements. “[I]n order to meet the minimum constitutional
requirements for standing, a plaintiff must allege an actual or threatened
injury to himself that is fairly traceable to the allegedly unlawful conduct of
the defendant and is likely to be redressed by the requested relief.” Sullivan
v. Syracuse Hous. Auth., 962 F.2d 1101, 1106 (2d Cir. 1992) (citations and
internal quotation marks omitted). As such, this claim cannot survive a motion
to dismiss.
19
liability, claims, or rights of action alleging a violation of my
civil rights . . . from the beginning of the world to the date of
this General Release,” ECF No. 114-2 at 9, and are therefore
covered and barred by the plain language of the Release.
B. Plaintiff Lacks Standing to Assert his First Amendment
Claims
The
only
remaining
Amendment claim.
federal
claim
is
plaintiff’s
First
Plaintiff’s complaint alleges that his First
Amendment Rights have been violated in two ways.
We address them
seriatim.
First, plaintiff alleges that his First Amendment rights were
violated because his performances in 2017 were cancelled.
73–74.
SAC ¶¶
Since this claim arises out of events in 2017, it is
clearly barred by the Release.
Second,
plaintiff
alleges
that
his
speech
is
“chilled”
because he does not know who else is on the gang membership list.
Id. ¶ 78. This allegation fails to state a claim because plaintiff
does not articulate how his lack of knowledge of who else is in
the gang database could possibly chill his speech.
Plaintiff
alleges only that defendants’ “inclusion of plaintiff into the
NYPD’s ‘gang database’ and/or Criminal Group List chills his
ability to associate with individuals and engage in activities
such as speech and/or assembly because he has no way of knowing
who else is listed on the NYPD’s ‘gang database’ and/or Criminal
20
Group List.” Id.
Such “[t]hreadbare recitals of the elements of
a cause of action, supported by mere conclusory statements, do not
suffice” to survive a motion to dismiss.
Brown, 756 F.3d at 225
(quoting Iqbal, 556 U.S. at 678).
Nor do such vague assertions support a finding of standing.
Plaintiff lacks standing to bring this claim because he fails to
describe adequately how any harm resulted from his inclusion in
this list, or what relief he is seeking to remedy this alleged
wrong. “[I]n order to meet the minimum constitutional requirements
for standing, a plaintiff must allege an actual or threatened
injury to himself that is fairly traceable to the allegedly
unlawful conduct of the defendant and is likely to be redressed by
the requested relief.”
Sullivan v. Syracuse Hous. Auth., 962 F.2d
1101, 1106 (2d Cir. 1992) (citations and internal quotation marks
omitted).
That is, to bring a cognizable claim, plaintiff must
have suffered “an invasion of a legally protected interest which
is (a) concrete and particularized and (b) ‘actual or imminent,’
not ‘conjectural’ or ‘hypothetical.’”
Wildlife,
504
U.S.
555,
560-61
(1992)
Lujan v. Defenders of
(citations
omitted).
Plaintiff’s vague assertion that his speech is chilled, without
additional details, does not meet this standard.12
12
The Court notes that, to the extent plaintiff alleges reputational injury
by being included in the gang database, that injury appears to be self-
21
C. This Court Declines to Alter the Release or Provide Relief
from a Judgment through Federal Rule of Civil Procedure 60
(b)
Plaintiff argues that, should the Court find the Release bars
his claims, the Court should reform the Release to release only
the claims asserted in the 2015 lawsuit or to vacate the final
judgment in the 2015 lawsuit — a settlement and judgment that were
signed by another Judge in this District.
Plaintiff does not meet
his burden on either of these arguments.
In order to reform a contract, such as the Release, there
must be a mutual mistake, which the party seeking to reform the
contract must establish by clear and convincing evidence.
v. Harrison-Bode, 303 F.3d 429, 434 (2d Cir. 2002).
Collins
Plaintiff’s
only support for the proposition that there was a “mutual mistake”
is his claim that he intended only to the release the claims in
the 2015 Lawsuit.
mistake.”
This is insufficient to establish a “mutual
A party’s subjective understanding of the text does not
control when the text itself is unambiguous.
See Bloomfield v.
Bloomfield, 97 N.Y.2d 188, 193 (N.Y. 2001) (“[W]hile we must be
concerned with what the parties intended, we generally may consider
inflicted. Plaintiff was not a member of the gang database at the time he filed
his initial complaint, in which he publicly alleged he was a member of the
database. See ECF No. 37-2, ECF No. 51 at 7, n.5. Nor has he alleged any
independent disclosure of his inclusion on the database. Rather, he was added
to the database months after this case was filed, a fact that was only revealed
as part of this litigation to refute plaintiff’s unwarranted assertion in his
original complaint. Id.
22
their intent only to the extent that it is evidenced by the
writing.”); Red Ball Interior Demolition Corp. v. Palmadessa, 173
F.3d 481, 484 (2d Cir. 1999) (“[A] party cannot create an ambiguity
in
an
otherwise
plain
agreement
merely
by
urging
different
interpretations in the litigation.”)(internal quotation marks and
citation omitted).
Moreover, it begs credulity that plaintiff’s
counsel could understand a release of “any and all liability,
claims, or rights of action alleging a violation of my civil rights
and any and all related state law claims, from the beginning of
the world to the date of this General Release . . .” to release
only the claims from the 2015 Lawsuit.
The text is clear on its
face that the Release releases all civil rights claims prior to
the date of the Release.
As such, there is no grounds for this
Court to reform the contract.
Although plaintiff repeatedly refers to “limiting language”
in the second paragraph of the Release and in contemporaneous
documents, the language plaintiff describes only explains the
circumstance of the Release, namely that it was made as part of a
settlement of plaintiff’s 2015 Lawsuit against the City. See e.g.,
ECF No. 121 at 2, 10.
As described supra, this is not sufficient
to demonstrate mistake or ambiguity.
Additionally, plaintiff’s
assertion that the City should have proven that there was no
mistake
by
submitting
a
declaration
23
from
the
attorney
who
negotiated the Release, ECF No. 137 at 6, misstates the burden on
this issue: plaintiff, not the City, must show that the Release
should be reformed.
While Rule 60(b) provides Courts with the ability to vacate
a judgment in “extraordinary circumstances,” Liljeberg v. Health
Servs. Acquisition Corp., 486 U.S. 847, 864 (1988), plaintiff has
failed to show these extraordinary circumstances.
The Release
clearly states that plaintiff released all civil rights claims and
any related state law claims prior to January 12, 2018, along with
certain Medicare claims, in consideration for $30,000. ECF No.
114-2 at 9. Corporation Counsel expended taxpayer dollars to
resolve a dispute with a represented plaintiff using a standard
and traditional release.
The settlement was then approved by
another judge in this Court.
Stipulation and Order of Dismissal,
Guzman, (S.D.N.Y. Dec. 7, 2018), ECF No. 47.
These facts are the
opposite of “extraordinary circumstances.”
D. The State Law Claims Are Dismissed for Lack of Supplemental
Jurisdiction
As there are no remaining federal claims, this Court declines
to exercise supplemental jurisdiction over any state law claims
that may survive the Release.
a
district
court
“may
Pursuant to 28 U.S.C. § 1367(c)(3),
decline
to
exercise
supplemental
jurisdiction over a claim” where “the district court has dismissed
all claims over which it has original jurisdiction.”
24
28 U.S.C. §
1367(c)(3); see also Carnegie–Mellon Univ. v. Cohill, 484 U.S.
343, 350 n. 7 (1988) (“[I]n the usual case in which all federallaw claims are eliminated before trial, the balance of factors to
be considered under the pendent jurisdiction doctrine — judicial
economy, convenience, fairness, and comity — will point toward
declining to exercise jurisdiction over the remaining state-law
claims.”).
As such, we do not address the arguments regarding
state law claims.
IV.
Conclusion
For the foregoing reasons, this Court dismisses plaintiff’s
complaint
in
its
entirety
without
prejudice
and
respectfully
directs the Clerk to terminate the open motions and close this
case.
SO ORDERED.
Dated:
New York, New York
November 16, 2021
___________________________
NAOMI REICE BUCHWALD
UNITED STATES DISTRICT JUDGE
25
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