Rodriguez v. City of New York et al

Filing 51

MEMORANDUM AND ORDER: re: 41 MOTION to Dismiss the First Amended Complaint Partially filed by Solomon, James O'Neil, City of New York. For the foregoing reasons, defendant's partial motion to dismiss is GRANTED with respect to plaintiff 's Monell and state constitutional claims, and DENIED with respect to Detective Solomon. With respect to plaintiff's individual claims, the parties shall continue discovery pursuant to the schedule set forth in the parties' letter February 7, 2020. See ECF No. 48. The Clerk of Court is respectfully directed to terminate the motion pending at docket entry 41. SO ORDERED. (Signed by Judge Naomi Reice Buchwald on 3/09/2020) (ama)

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 pursuant to 42
U.S.C. § 1983 against the City of New York (“City”), former New
York City Police Department (“NYPD”) Commissioner James O’Neill,
NYPD Detective Bernard Solomon, and John and/or Jane Doe NYPD
officers (collectively, “defendants”).

Plaintiff asserts, inter

alia, constitutional violations arising from his placement into
the NYPD’s “gang database,” which defendants refer to as the NYPD’s
“Criminal Group Database.”

In particular, plaintiff maintains

that the NYPD falsely informed the owners of two concert venues
that

plaintiff

was

a

“gang

member”

or

“gang

affiliate”

and

threatened to shut down those venues if plaintiff was permitted to
perform,

thereby

preventing

plaintiff

from

concerts in September and October of 2017.

1

performing

at

two

Presently before the Court is defendants’ partial motion to
dismiss.

For the reasons set forth herein, which more fully

explain the Court’s rulings at oral argument, defendants’ partial
motion to dismiss is granted with respect to plaintiff’s Monell
claims and denied with respect to the dismissal of claims against
Detective Solomon.

The Court also grants defendants’ motion to

dismiss plaintiff’s state constitutional claims.
I. Background 1
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.

On May 26, 2017, plaintiff, along

with his mother and his attorney, met with NYPD Detective Bernard
Solomon to discuss the May 15 shooting.

Plaintiff alleges that in

retaliation for his inability to identify the individual who shot
him on May 15, Detective Solomon initiated a process whereby
plaintiff’s name was added to the so-called “gang database,”
notwithstanding

Detective

Solomon’s

purported

knowledge

that

plaintiff was not in fact a member of “Dub City” or any other gang.
Thereafter, the NYPD is alleged to have made certain statements to

1 The following facts are drawn from the operative complaint and are
accepted as true for 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).

2

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.
A. Procedural History
This action began on May 31, 2018, when plaintiff filed
contemporaneously with his initial complaint an order to show cause
seeking a temporary restraining order:

(1) enjoining defendants

from taking any action that would adversely affect plaintiff’s
ability

to

perform

at

concert

venues

within

the

NYPD’s

jurisdiction, including labeling plaintiff as a “gang member” or
making other similar statements that would damage plaintiff’s name
and reputation; (2) directing defendants to remove plaintiff from
the NYPD’s “gang database”; (3) requiring defendants to produce
all records used to support their classification of plaintiff as
a “gang member”; and (4) requiring the NYPD to produce internal
records

describing

the

policies

and

individuals into its “gang database.”

procedures

for

entering

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

3

for the following day. 2

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
that included, inter alia, newly asserted Monell and state law
claims.

See ECF No. 23 at 12-20.

Pursuant to Federal Rule of

Civil Procedure 12(b)(6), defendants now move to partially dismiss
that

complaint

as

pled

against

defendants

NYPD

Commissioner

O’Neill and Detective Solomon, as well as plaintiff’s federal
claims of municipal liability. 3
For substantially the reasons stated at oral argument, the
Court grants defendants’ motion to dismiss plaintiff’s Monell and

2

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.
3

While defendants devote several pages of their motion to arguing that
Commissioner O’Neill should be dismissed for lack of personal involvement, see
ECF No. 42 at 10-12, Commissioner O’Neill was named as a defendant solely in
his official capacity. See ECF No 23 at 1. Accordingly, any claims against
him are duplicative of the claims asserted against the City and need not be
independently addressed. See Anemone v. Metro. Transp. Auth., 410 F. Supp. 2d
255, 264 n.2 (S.D.N.Y. 2006) (“Where, as here, the entity also is named as a
defendant, the official capacity claims are redundant and are properly
dismissed.”).

4

state constitutional claims, but denies defendants’ motion insofar
as it seeks the dismissal of claims against Detective Solomon. 4
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.”
678 (quoting Twombly, 550 U.S. at 555).

Iqbal, 556 U.S. at

“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 complaint,
documents attached to the complaint as exhibits, and documents

4
Because plaintiff has adequately pled that Detective Solomon was
involved in the purported wrongdoing relating to plaintiff’s individual claims
(e.g., falsely identifying plaintiff as a “gang member” or “gang affiliate” and
allegedly preventing plaintiff from performing in two concerts on that basis),
the Court declines at this stage to dismiss Detective Solomon as a defendant.

5

incorporated by reference in the complaint.”
Cable LLC, 622 F.3d 104, 111 (2d Cir. 2010).

DiFolco v. MSNBC

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)).
reference,

the

“[W]here a document is not incorporated by

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)).
III. Discussion
Plaintiff’s

Monell

and

state

constitutional

claims

are

addressed in turn.
A. Monell Claims
A municipality cannot be liable under section 1983 under the
doctrine

of

respondeat

superior;

rather,

a

“plaintiff

must

demonstrate that, through its deliberate conduct, the municipality
was the ‘moving force’ behind the alleged injury.”

Roe v. City of

Waterbury, 542 F.3d 31, 37 (2d Cir. 2008) (quoting Bd. of Cty.
Comm’rs of Bryan Cty., Okl. v. Brown, 520 U.S. 397, 405 (1997)).
To hold a municipality liable under 42 U.S.C. § 1983, a plaintiff
6

must establish (1) the existence of a municipal policy, custom, or
practice, which (2) caused the alleged violation of the plaintiff’s
constitutional rights.

Niles v. O’Donnell, No. 17 Civ. 1437 LTS

BCM, 2017 WL 7369711, at *1 (S.D.N.Y. Aug. 22, 2017), report and
recommendation adopted, No. 17 Civ. 1437 LTS BCM, 2018 WL 718415
(S.D.N.Y. Feb. 5, 2018).
With respect to “the existence of a municipal policy, custom,
or practice,” id., plaintiff has alleged two broadly related
policies: (1) the operation of a “gang database” that, inter alia,
purportedly identifies gang members or affiliates on the basis of
overly

broad

and

arbitrary

criteria; 5

and

(2)

the

allegedly

disproportionate policing of rap and/or hip-hop concerts.
With respect to the first policy, plaintiff’s Monell claim
fails at the outset given that plaintiff was not even added to the
gang database until well after the NYPD purportedly prevented

5 In support of their motion defendants have submitted (1) a copy of the
Criminal Group Database Report (hereinafter, the “Database Report”), which
reflects that plaintiff was “activated” in the database on September 13, 2018,
see ECF No. 37-2; and (2) the transcript of a senior NYPD official’s statement
before the New York City Council regarding, inter alia, the criteria and
mechanisms by which individuals are added to and removed from the database, see
ECF No. 37-3. While the Court has not considered the NYPD’s statement before
the New York City Council in resolving the instant motion, it has considered
the Database Report, which the Court deems integral to the operative complaint.
In addition to the fact that plaintiff’s federal constitutional claims
are premised principally upon the circumstances and effects of his placement
into the database, plaintiff had actual notice of the report prior to filing
his amended complaint, see ECF No. 44 at 13, thus minimizing any harm that
otherwise could result from its consideration. See Chambers, 282 F.3d at 153
(noting that “the harm to the plaintiff when a court considers material
extraneous to a complaint is the lack of notice that the material may be
considered”).

7

plaintiff’s two scheduled performances. 6 See Batista v. Rodriguez,
702 F.2d 393, 397 (2d Cir. 1983) (“Absent a showing of a causal
link between an official policy or custom and the plaintiffs’
injury,

Monell

City.”).

prohibits

a

finding

of

liability

against

the

Nor can plaintiff pursue a Monell claim based upon the

NYPD’s purported policy of disproportionately policing rap and
hip-hop concerts, which plaintiff -- unlike, perhaps, the concert
venues

themselves

--

would

lack

standing

to

challenge

as

a

standalone policy.
B. State Constitutional Claims
Plaintiff further alleges that defendants violated his right
to due process and to freely speak, assemble, and associate as
guaranteed

by

Constitution.

several

provisions

See ECF No. 23 ¶ 140.

of

the

New

York

State

Defendants maintain that

such claims are barred because they are duplicative of plaintiff’s
§ 1983 claims.

See ECF No. 36 at 20.

While plaintiff does not

dispute that “there is no private right of action under the New
York State Constitution where . . . remedies are available under
§ 1983,” Hershey v. Goldstein, 938 F. Supp. 2d 491, 520 (S.D.N.Y.

6

The Database Report reflects that plaintiff was not “activated” as a
“gang member” until September of 2018 (i.e., nearly a year after the two concerts
that the NYPD purportedly caused to be cancelled). See ECF No. 37-2. Because
plaintiff cannot plausibly allege that injuries sustained nearly a year prior
to his inclusion on the database were “directly caused” by the City’s policy of
operating said database, plaintiff cannot plead a Monell claim with respect to
that policy.

8

2013), plaintiff maintains that his state constitutional claims
against the City should not be dismissed because § 1983 does not
provide for respondeat superior liability.

Stated otherwise,

according to plaintiff, § 1983 is inadequate as an alternative
remedy because it does not permit vicarious municipal liability.
This argument fails because it fundamentally misconstrues the
nature of respondeat superior, which -– far from providing an
“alternative remedy” for an alleged constitutional violation –- is
a theory of vicarious liability that must attach to a viable
underlying claim.

See Farb v. Baldwin Union Free Sch. Dist., No.

05 Civ. 0596 (JS), 2006 WL 8439500, at *11 (E.D.N.Y. Mar. 3, 2006)
(“Plaintiff’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.”).

No such

underlying claim exists, however, where (as here) a plaintiff
asserts claims under the New York State Constitution that he also
asserts as § 1983 claims.
constitutional

claims

are

Indeed, in such cases, the state
routinely

dismissed

as

duplicative.

See, e.g., Ying Li v. City of New York, 246 F. Supp. 3d 578, 639
(E.D.N.Y.

2017)

(dismissing

state

constitutional

due

process

claims where plaintiff “ha[d] asserted the same due process claim
under Section 1983, making Plaintiff’s State constitutional claim
duplicative”).

See also Wahad v. FBI, 994 F. Supp. 237, 240 n.4

(S.D.N.Y. 1998) (“Section 1983 need not provide the exact same
9