Rodriguez v. City of New York et al
Filing
87
MEMORANDUM AND ORDER: re: 69 MOTION to Amend/Correct First Amended Complaint filed by Giovanni Rodriguez. For the foregoing reasons, plaintiff's motion for leave to file an amended complaint is GRANTED in part and DENIED in part. The Court permits amendment to replace John Doe defendants throughout the complaint and denies the additions of the Procedural Due Process and Equal Protection Claims. The Court does not address the PSAC's amendments to the eleventh cause of actio n in light of plaintiff's withdrawal of this cause of action during oral argument. To the extent not addressed in the preceding Memorandum and Order, plaintiff's proposed amendments are permitted. Plaintiff is directed to file his Second Am ended Complaint consistent with this Memorandum and Order within seven days of its issuance. The Clerk of Court is respectfully directed to terminate the motion pending at docket entry 69. SO ORDERED. (Signed by Judge Naomi Reice Buchwald on 2/19/2021) (ama)
Case 1:18-cv-04805-NRB Document 87 Filed 02/19/21 Page 1 of 20
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
---------------------------------------X
GIOVANNI RODRIGUEZ (a/k/a King Karrot),
Plaintiff,
MEMORANDUM AND ORDER
- against -
18 Civ. 4805 (NRB)
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,” brought 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 in the
NYPD’s “gang database,” which defendants refer to as the NYPD’s
“Criminal Group Database” (hereinafter the “Database”).
Further,
independent of his inclusion in the Database, plaintiff maintains
that the NYPD falsely informed concert promoters, the owners of
two concert venues, and members of the media that plaintiff was a
“gang member” or “gang affiliate” and threatened to shut down those
venues if plaintiff was permitted to perform.
Plaintiff alleges
that these actions prevented plaintiff from performing at two
1
Case 1:18-cv-04805-NRB Document 87 Filed 02/19/21 Page 2 of 20
concerts in September and October of 2017.
Separately, plaintiff
alleges that when he was at the hospital after he was shot in May
2017, members of the NYPD took a DNA swab from his mouth as well
as his cell phone and clothing in violation of his Fourth Amendment
rights. 1
Presently before the Court is plaintiff’s motion for leave to
file a Proposed Second Amended Complaint (“PSAC”), ECF No. 81-1. 2
Defendants oppose this motion.
For the reasons set forth herein,
plaintiff’s motion is granted in part and denied in part.
I. Background 3
A. Facts
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.
Plaintiff was taken to a Bronx
hospital to receive treatment for his injuries.
1
There, members of
During oral argument, plaintiff acknowledged that the clothing was
evidentiary in nature, Tr. of Oral Arg., Feb. 4, 2021, ECF No. 85 at 5:17-6:6,
and that the police stated a willingness to return the phone, though it is
unclear why it was never returned.
2 Initially plaintiff filed the PSAC as an exhibit to his memorandum in
support of his motion for leave to file a second amended complaint. ECF No.
70-2.
Thereafter, per order of the Court, ECF No. 78, plaintiff filed an
updated version of the PSAC with certain clarifications, ECF No. 81-1.
Throughout this Memorandum and Order, the Court refers to the version of the
PSAC filed at ECF No. 81-1.
3 The facts set forth in this section are drawn from the operative
complaint – the First Amended Complaint (“FAC”), ECF No. 23 – 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
Case 1:18-cv-04805-NRB Document 87 Filed 02/19/21 Page 3 of 20
the NYPD are alleged to have seized plaintiff’s property, including
his clothes and cell phone.
While questioning plaintiff about the
shooting, NYPD defendants are also alleged to have taken a DNA
swab sample from plaintiff’s mouth.
Further, on a date not
specified in the FAC, unnamed individuals from the NYPD are alleged
to have told members of the media, including Rocco Parascandola of
the New York Daily News, that plaintiff was a member of Dub City
and had been arrested as a minor.
On May 26, 2017, plaintiff, along with his mother and his
attorney, met with NYPD Detective Bernard Solomon at plaintiff’s
attorney’s office to discuss the May 15 shooting.
Plaintiff
alleges that in retaliation for his inability to identify the
individual
who
initiated
a
notwithstanding
shot
him
process
on
to
Detective
May
add
15,
2017,
plaintiff
Solomon’s
Detective
to
purported
the
Solomon
Database,
knowledge
that
plaintiff was not in fact a member of “Dub City” or any other gang.
Months later, the NYPD also is alleged to have made certain
statements
to
venue
owners
and
concert
promoters
regarding
plaintiff’s gang affiliation that resulted in plaintiff being
removed from two performance lineups — one on September 19, 2017
and another on October 13, 2017 — thereby violating plaintiff’s
constitutional
rights
and,
inter
alia,
opportunities for professional advancement.
3
depriving
him
of
Case 1:18-cv-04805-NRB Document 87 Filed 02/19/21 Page 4 of 20
About one year later, on September 13, 2018, plaintiff was
actually added to the Database. 4
B. 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 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
individuals into the Database.
and
procedures
for
entering
Following a show cause hearing,
the Court issued a limited Order on defendants’ consent (the “May
31
Order”)
temporarily
restraining
the
NYPD
from adversely
affecting plaintiff’s concert performance that had been scheduled
4 Plaintiff did not allege the date when he was added to the Database in
either his original or First Amended Complaint. ECF Nos. 1, 23. However, in
support of their partial motion to dismiss, and to defend against plaintiff’s
allegations, defendants filed a form entitled “Activate Person Into Criminal
Group List,” which reflects that plaintiff was activated in the Database on
September 13, 2018 following “a long term investigation.” ECF No. 37-2. In
its Memorandum and Order of March 9, 2020, the Court deemed this document
integral to the operative complaint. ECF No. 51 n.5. Consistent with this, in
the PSAC, plaintiff alleges the now-undisputed fact that he was activated into
the Database on September 13, 2018. ECF No. 81-1 ¶ 57.
4
Case 1:18-cv-04805-NRB Document 87 Filed 02/19/21 Page 5 of 20
for the 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 the FAC that included,
inter alia, newly asserted Monell and state law claims.
No. 23 at 12-20.
See ECF
Pursuant to Federal Rule of Civil Procedure
12(b)(6), defendants moved to partially dismiss that complaint as
pled against defendants NYPD Commissioner O’Neill and Detective
Solomon, as well as plaintiff’s state law claims and federal claims
of municipal liability.
ECF No. 36.
On March 9, 2020, the Court granted defendants’ partial motion
to dismiss with respect to both of plaintiff’s Monell claims.
No. 51.
ECF
The Court dismissed plaintiff’s Monell claim (the FAC’s
sixth cause of action), which challenged the operation of the
Database, on the basis that plaintiff was not added to the Database
until “well after the NYPD purportedly prevented plaintiff’s two
scheduled performances.”
Id. at 7-8.
The Court also dismissed
plaintiff’s other Monell claim (the FAC’s fifth cause of action),
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.
5
Case 1:18-cv-04805-NRB Document 87 Filed 02/19/21 Page 6 of 20
which challenged the allegedly disproportionate policing of rap
and/or hip-hop concerts, because plaintiff, unlike perhaps the
concert venues themselves, “lack[ed] standing to challenge [it] as
a standalone policy.”
Id. at 8.
The Court further granted
defendants’ motion to dismiss plaintiff’s state constitutional
claims, finding that they were duplicative of remedies available
under plaintiff’s § 1983 claims.
Id. at 10.
The Court denied the
partial motion to dismiss with respect to Detective Solomon,
finding that plaintiff 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).
Id. at 5 n.4.
On May 15, 2020, plaintiff filed a stipulation and proposed
order with the Court, seeking to file a Second Amended Complaint
(“Initial Proposed Second Amended Complaint” or “IPSAC”).
ECF No.
53.
due
Thereafter,
the
case
was
stayed
for
90
complications arising from the COVID-19 pandemic.
55.
to
ECF Nos. 54-
On July 17, 2020, the Court issued an endorsed letter
declining
to
sign
plaintiff’s
regarding the IPSAC.
proposed
ECF No. 56.
stipulation
August
27,
2020,
the
Court
and
order
On August 17, 2020 plaintiff
moved for reconsideration of the Court’s letter.
On
days
denied
ECF Nos. 61-62.
plaintiff’s
motion
for
reconsideration but granted leave for plaintiff to file a motion
6
Case 1:18-cv-04805-NRB Document 87 Filed 02/19/21 Page 7 of 20
to amend his FAC. ECF No. 65. 6 The Court now addresses plaintiff’s
motion for leave to file his Proposed Second Amended Complaint.
ECF No. 69. 7
A description of the PSAC is necessary to the resolution of
the instant motion.
The PSAC seeks to add, inter alia: (1)
multiple NYPD defendants previously named as John Doe defendants
and allegations related to each; (2) a third cause of action
alleging procedural due process violations against various NYPD
defendants; (3) a fourth cause of action alleging equal protection
violations against the City of New York; and (4) allegations to
the eleventh cause of action asserting violations of the New York
State Constitution. 8
add
various
factual
ECF No. 81-1.
allegations
Plaintiff also proposes to
throughout
the
complaint,
including, for example, details about the timing of plaintiff’s
addition to the Database, Parascandola’s New York Daily News
article, and plaintiff’s hospital visit on May 15, 2017.
6
Id.
On September 16, 2020, defendants filed a letter representing that they
provided plaintiff with the names and current commands of individuals whose
identities he sought in discovery and who have now been included in his PSAC.
ECF No. 68.
7 The PSAC, ECF No. 81-1, differs from the IPSAC, ECF No. 53-1, in certain
respects, including: (1) in the IPSAC, plaintiff reiterated the dismissed Monell
claims, but did not do so in the PSAC, and (2) plaintiff proposed to add
different NYPD officers in the IPSAC and the PSAC.
8 During oral argument, plaintiff agreed to voluntarily dismiss the
eleventh cause of action given the Court’s ruling that defendants Baez and Smith
could be added as defendants to the sixth cause of action, which is based on
the Fourth Amendment. Tr. of Oral Arg., Feb. 4, 2021, ECF No. 85 at 11:2-6.
Accordingly, the Court does not address further plaintiff’s proposed additions
to the eleventh cause of action.
7
Case 1:18-cv-04805-NRB Document 87 Filed 02/19/21 Page 8 of 20
Consistent with the Court’s prior Memorandum and Order, which
dismissed the FAC’s Monell claims, ECF No. 51, the PSAC eliminates
the FAC’s Fifth and Sixth Causes of Action.
As explained above,
the Fifth Cause of Action was a Monell claim alleging, inter alia,
policing of rap and hip-hop performances in violation of the First
and Fourteenth Amendments because “of the content of the music
and/or because the performers are overwhelmingly non-white.”
No. 23 ¶¶ 88-93.
ECF
The Sixth Cause of Action was a Monell claim
alleging, inter alia, maintenance of a “gang database” which
“consists almost entirely of people who are non-white” in violation
of the First and Fourteenth Amendments.
II.
ECF No. 23 ¶¶ 94-100.
Legal Standard
Under Federal Rule of Civil Procedure 15(a), leave to amend
should be “freely give[n] ... when justice so requires.”
Civ. P. 15(a)(2).
Fed. R.
However, “a motion to amend should be denied if
there is an ‘apparent or declared reason - such as undue delay,
bad
faith
or
dilatory
motive
...,
repeated
failure
to
cure
deficiencies by amendments previously allowed, undue prejudice to
the opposing party by virtue of the allowance of the amendment,
[or] futility of amendment.’”
Dluhos v. Floating and Abandoned
Vessel Known as “New York”, 162 F.3d 63, 69 (2d Cir. 1998) (quoting
Foman v. Davis, 371 U.S. 178, 182 (1962)).
“In addressing the proposed futility of an amendment, the
proper inquiry is comparable to that required upon a motion to
8
Case 1:18-cv-04805-NRB Document 87 Filed 02/19/21 Page 9 of 20
dismiss pursuant to Fed. R. Civ. P. 12(b)(6).”
Aetna Cas. & Sur.
Co. v. Aniero Concrete Co., 404 F.3d 566, 604 (2d Cir. 2005)
(citation omitted); see also In re Sanofi Sec. Litig., No. 14 Civ.
9624,
2016
WL
3566233,
at
*2
(S.D.N.Y.
June
24,
2016)
(“An
amendment is futile if the proposed amended complaint would be
subject to immediate dismissal”) (citing Jones v. New York State
Div. of Military & Naval Affairs, 166 F.3d 45, 55 (2d Cir. 1999))
(internal quotation marks omitted).
Amendments to a complaint may also be barred if they violate
applicable statutes of limitation.
“In § 1983 actions, state
statutes of limitations for personal injury actions and state
tolling rules generally govern the time a party has to bring [his]
action.”
Horn v. Politopoulos, 628 F. App’x 33, 34 (2d Cir. 2015);
see also N.Y. C.P.L.R. § 214(5).
limitations period is three years.
Second
Circuit
law,
“[w]hen
a
In New York, the applicable
N.Y. C.P.L.R. § 214(5).
plaintiff
seeks
to
add
Under
a
new
defendant in an existing action, the date of the filing of the
motion to amend constitutes the date the action was commenced for
statute of limitations purposes.”
Rothman v. Gregor, 220 F.3d 81,
96 (2d Cir. 2000) (internal quotation marks omitted).
III. Discussion
Plaintiff’s
proposed
amendments,
addressed in turn.
9
set
forth
above,
are
Case 1:18-cv-04805-NRB Document 87 Filed 02/19/21 Page 10 of 20
A. Replacement of John Doe Defendants
Plaintiff seeks to amend his complaint to replace John Doe
defendants with NYPD defendants Sergeant Juan Ventura, Captain
Igor Pinkhasov, Detective Jeffrey Scalf, Sergeant Leo Nugent,
Detective Sean Smith, Detective Jason Chandler, Detective Harry
Mendez, and Officer Edwin Baez.
do
not
challenge
the
ECF No. 81-1.
inclusion
in
the
Because defendants
complaint
of
Ventura,
Pinkhasov, Scalf, Nugent, Chandler, and Mendez, the Court permits
amendment to include these NYPD defendants.
On the other hand,
defendants challenge the inclusion of Baez and Smith on the basis
that the statute of limitations bars their insertion into the
complaint.
The PSAC introduces allegations regarding Baez and Smith in
support of plaintiff’s Fourth Amendment claim.
114-121.
ECF No. 81-1 ¶¶
Specifically, the PSAC alleges that Baez and Smith took
a DNA swab from plaintiff, unlawfully seized plaintiff’s property,
including his clothes and cell phone, and questioned him at the
hospital on May 15, 2017. Id. ¶¶ 33-36. The statute of limitations
on these claims thus expired on May 15, 2020.
As described in Part I.B, supra, plaintiff tried on more than
one occasion to file the PSAC.
On May 15, 2020, defendants
consented
of
to
plaintiff’s
filing
a
stipulation
indicating
plaintiff’s intent to file the Initial Proposed Second Amended
Complaint, which included Baez and Smith.
10
ECF No. 53.
The
Case 1:18-cv-04805-NRB Document 87 Filed 02/19/21 Page 11 of 20
stipulation appended a draft of the IPSAC.
ECF No. 53-1.
Shortly
thereafter, the case was stayed, and as a result of orders from
the Court and challenges from plaintiff, plaintiff did not file
the instant motion for leave to amend until September 17, 2020 —
well past the expiration of the statute of limitations period.
The Court finds, however, that the IPSAC, filed alongside the
stipulation on May 15, 2020, gave notice to Baez and Smith about
the claims against them within the statute of limitations period. 9
Here, where various procedural steps and the COVID-19 pandemic
interfered, “it is the date that [plaintiff] sought to amend to
add [defendants] that marks the date the action was commenced . .
. for statute of limitations purposes.”
Teri v. Spinelli, 980 F.
Supp. 2d 366, 377 (E.D.N.Y. 2013); see also Lehal v. United States,
No. 13 Civ. 3923, 2015 WL 9592706, at *17 (S.D.N.Y. Dec. 29, 2015).
Accordingly, the Court finds that the proposed amendments adding
Baez and Smith to the complaint are timely. 10
9 The Court notes that the PSAC’s allegations regarding Baez and Smith
are not entirely consistent with the allegations in the IPSAC. Compare ECF No.
81-1 with ECF No. 53-1.
Nevertheless, the allegations in the IPSAC were
sufficient to put defendants Baez and Smith on notice within the statute of
limitations period that they were named in the lawsuit.
10 In any event, plaintiff would be permitted to add Baez and Smith to the
complaint pursuant to the relation back doctrine set forth in Fed. R. Civ. P.
15(c). See Byrd v. Abate, 964 F. Supp. 140, 146 (S.D.N.Y. 1997) (permitting
amendment of John Doe defendants where “it was the defense, rather than the
plaintiff, who failed to identify the individual defendant despite [plaintiff’s]
requests for that information” and where “the identity of [defendant] was
information uniquely within the knowledge of Corporation Counsel”). Perhaps
the Corporation Counsel’s awareness of this law, and their responsibility for
not having timely provided the identities of the John Doe defendants to
plaintiff, explains the otherwise inexplicable willingness of the Corporation
Counsel to agree to permit plaintiff to file an amended complaint adding new
officer defendants, whom they did not represent, on the cusp of the expiration
11
Case 1:18-cv-04805-NRB Document 87 Filed 02/19/21 Page 12 of 20
B. Third Cause of Action: Procedural Due Process Claim
The
PSAC
procedural
adds
due
a
third
process
cause
violations
of
action,
pursuant
Amendment (“Procedural Due Process Claim”).
to
which
the
alleges
Fourteenth
As written in the
PSAC, this claim has two discrete factual bases.
First, plaintiff
alleges that he was denied a “meaningful opportunity to challenge
his inclusion” into the Database.
ECF No. 81-1 ¶ 90.
Second,
plaintiff alleges that he was denied “his good name and reputation
and a meaningful opportunity to be heard” when defendants notified
venue owners and promoters about plaintiff’s gang affiliation.
ECF No. 81-1 ¶¶ 86-89.
This proposed amendment is denied because
it is futile.
“Federal courts examine procedural due process questions in
two steps: the first asks whether there exists a liberty or
property interest which has been interfered with by the State; the
second
examines
whether
the
procedures
attendant
deprivation were constitutionally sufficient.”
upon
that
Francis v. Fiacco,
942 F.3d 126, 141 (2d Cir. 2019) (citing Ky. Dep’t of Corr. v.
Thompson, 490 U.S. 454, 460 (1989)) (internal quotation marks
omitted).
Defendants argue that the Procedural Due Process Claim is
futile because the PSAC does not allege state interference with a
of the statute of limitations.
See ECF No. 53.
12
Case 1:18-cv-04805-NRB Document 87 Filed 02/19/21 Page 13 of 20
liberty interest — the first step of the procedural due process
analysis — under the “stigma plus” doctrine. In order to establish
the deprivation of a liberty interest under the due process clause
based on loss of reputation, as claimed here, plaintiff must allege
“stigma plus.”
Valmonte v. Bane, 18 F.3d 992, 999 (2d Cir. 1994).
The stigma plus doctrine requires plaintiff to show “(1) the
utterance of a statement sufficiently derogatory to injure his or
her reputation, that is capable of being proved false, and that he
or she claims is false, and (2) a material state-imposed burden or
state-imposed alteration of the plaintiff’s status or rights.”
Sadallah v. City of Utica, 383 F.3d 34, 38 (2d Cir. 2004) (internal
quotation
marks
omitted).
The
Second
Circuit
has
held
that
defamation alone is not a deprivation of a liberty interest, even
if it leads to a significant loss of employment opportunities,
“unless it occurs in the course of dismissal or refusal to rehire
the individual as a government employee or during termination or
alteration of some other legal right or status.”
Neu v. Corcoran,
869 F.2d 662, 667 (2d Cir. 1989) (citing Paul v. Davis, 424 U.S.
693, 96 S.Ct. 1155, 47 L.Ed.2d 405 (1976)).
As argued in his memorandum in support of his motion to amend,
however, plaintiff disputes that the Procedural Due Process Claim
(third
cause
of
action)
lends
13
itself
to
the
“stigma
plus”
Case 1:18-cv-04805-NRB Document 87 Filed 02/19/21 Page 14 of 20
analysis, 11 which he argues is only applicable to his first cause
of action (the “Liberty Interest Claim”). Rather, plaintiff argues
that the balancing test in Mathews v. Eldridge, 424 U.S. 319
(1976), which determines whether an individual has received due
process, is the analytical framework for the proposed Procedural
Due Process Claim. 12
There
is
no
ECF No. 77 at 5.
question
that
in
his
memoranda,
plaintiff
endeavors to rewrite his complaint to confine the first cause of
action (Liberty Interest Claim) to statements about his gang
affiliation
to
media,
promoters,
and
venue
owners
that
are
unrelated to his Database inclusion and to confine the third cause
of action (Procedural Due Process Claim) to inclusion in the
Database.
ECF No. 77 at 4-6.
But plaintiff’s efforts fail,
because both the Liberty Interest Claim and the Procedural Due
Process Claim address NYPD officers’ alleged communications with
promoters and venue owners regarding his gang affiliation as well
as plaintiff’s addition to the Database.
11
See ECF No. 81-1 ¶¶ 67,
Courts in this Circuit have relied on a stigma plus analyses where
plaintiffs challenged their inclusion in government databases before.
See,
e.g., Valmonte v. Bane, 18 F.3d 992, 999 (2d Cir. 1994) (challenging plaintiff’s
inclusion on the Central Register of suspected child abusers); Drew v. City of
New York, No. 18 Civ. 10557, 2020 WL 3869732, at *4 (S.D.N.Y. July 9, 2020)
(acknowledging applicability of stigma plus analysis to inclusion in government
databases).
12 The Mathews test requires Courts to balance: “(1) the private interest
that will be affected by the official action; (2) the risk of an erroneous
deprivation of such interest through the procedures used, and the probable
value, if any, of additional or substitute procedural safeguards; and (3) the
Government's interest, including the function involved and the fiscal and
administrative burdens that the additional or substitute procedural requirement
would entail.”
Velasco Lopez v. Decker, 978 F.3d 842, 851 (2d Cir. 2020)
(citing Mathews, 424 U.S. at 335) (internal quotation marks omitted).
14
Case 1:18-cv-04805-NRB Document 87 Filed 02/19/21 Page 15 of 20
87 (venue owners and promoters); ¶¶ 69, 90 (Database inclusion).
Further, both claims challenge the deprivation of plaintiff’s good
name and reputation and assert plaintiff’s right to be heard.
Id.
¶¶ 64, 86 (good name and reputation); ¶¶ 69, 86 (opportunity to be
heard).
Regardless of plaintiff’s efforts to recast his claims, both
the first and third causes of action must be predicated on viable
claims of reputational harm, which requires application of the
stigma plus analysis.
To the extent that plaintiff’s claims are
predicated on his inclusion in the Database, he cannot claim
reputational
harm.
This
is
because
plaintiff
himself
was
responsible for disclosing, albeit inaccurately, in his initial
complaint and FAC that he was included in the Database.
1 ¶ 27; ECF No. 23 ¶ 43.
ECF No.
The City’s subsequent disclosure that
plaintiff was added to the Database on September 13, 2018 was
driven by the City’s need to rebut plaintiff’s claim that Detective
Solomon added him to the Database in 2017.
(citing ECF No. 37-2).
See ECF No. 36 at 10
It is not without considerable irony that,
had plaintiff not chosen to assert that he was included in the
Database
and
disclosure
of
to
his
make
additional
presence
on
the
claims
therefrom,
Database
ever
no
such
would
have
occurred. 13
13
We note that defendants included in their submissions in connection
with their partial motion to dismiss testimony from NYPD Chief of Detectives
Dermot Shea regarding the Criminal Group Database (“Shea Testimony”). ECF No.
15
Case 1:18-cv-04805-NRB Document 87 Filed 02/19/21 Page 16 of 20
Even
if
eliminating
plaintiff
the
had
threshold
not
prong
“outed”
of
himself,
reputational
thereby
harm,
allegations relevant to the “plus” prong are also deficient.
the
As
relevant to the “plus” prong of the stigma plus analysis, plaintiff
does
not
eventual
allege
any
inclusion
actual
in
the
personal
harm
Database.
resulting
Rather,
from
his
plaintiff’s
allegations of harm are made on “information and belief,” ECF No.
81-1 ¶¶ 59-60, and state in a conclusory manner that individuals
on the Database are “subjected to different treatment by law
enforcement officers . . . including longer seizures and postarrest, pre-arraignment detentions, heightened risk of unlawful
force being used . . . and heightened bail requirements”; see also
ECF No. 81-1 ¶¶ 92 (alleging that plaintiff was deprived of the
“right to be free from deprivation of liberty”). 14
Plaintiff,
therefore, has not sufficiently alleged that defendants caused
37-3. The Shea Testimony is a four-and-a-half page, single-spaced statement of
remarks from Detective Shea, which he delivered to the New York City Council
Committee on Public Safety on June 13, 2018. While the Shea Testimony is not
properly before the Court at this stage in the proceedings, we nevertheless
note that the Shea Testimony makes clear that the Database is not subject to
public disclosure — it is accessible only to NYPD personnel. ECF No. 37-3 at
4. Plaintiff has not alleged otherwise.
14 We recognize that while there are limits on the Court’s ability to rely
on the Shea Testimony, nonetheless the Court and plaintiff have been aware of
that testimony for well over a year and a half.
Despite that awareness,
plaintiff’s PSAC does not challenge the Shea Testimony and in fact includes
“information and belief” allegations that are directly contradicted by the Shea
Testimony.
Specifically, Shea explained that Database inclusion does not
provide grounds for a stop, arrest, or any other enforcement action, nor does
entry on the Database appear in an individual’s criminal history or rap sheet
when being fingerprinted. ECF No. 37-3 at 4. Further, the Database is not
shared with the New York City Housing Authority or employers conducting
background checks. Id.
16
Case 1:18-cv-04805-NRB Document 87 Filed 02/19/21 Page 17 of 20
either a stigma or a “plus” in connection with his Database
inclusion.
Cf. Valamonte, 18 F.3d at 1001 (“plus” alleged where
database inclusion caused “a specific deprivation of [plaintiff’s]
opportunity to seek employment caused by a statutory impediment
established by the state”). 15
Finally, though plaintiff attempts to sequester his claim
regarding defendants’ statements to venue owners and promoters
into the Liberty Interest Claim, because the PSAC includes these
allegations in the Procedural Due Process Claim, which the City
has moved to dismiss as duplicative and deficient, we address —
and dismiss — them here.
Defendants’ alleged statements to venue
owners and concert promoters about plaintiff’s gang affiliation
could give rise to a poor reputation, thereby satisfying the first
prong of the stigma plus test.
Nevertheless, plaintiff still has
not sufficiently alleged the “plus”: allegations regarding the
cancellation of concerts do not suffice to state a claim under the
stigma plus doctrine.
Ahearn v. Brachowicz, No. 13 Civ. 8007,
2014 WL 3408389, at *8 (S.D.N.Y. July 10, 2014) (citation omitted)
(finding
that
no
“plus”
was
alleged
where
plaintiff
was
not
terminated from government employment or deprived of “some other
legal
right
or
status”);
see
also
Neu,
869
F.2d
at
669-70
15 Whether there is a standalone procedural due process claim for inclusion
in the Database, when plaintiff’s knowledge is the result of his own actions in
this case, and without any evidence of use or impact, is a question that we
leave for another day.
17
Case 1:18-cv-04805-NRB Document 87 Filed 02/19/21 Page 18 of 20
(defamatory statements that led to inability to engage in auto
repair contract business insufficient to allege “stigma plus”).
Without having alleged the “plus,” plaintiff has failed to allege
a protectible liberty interest in his Procedural Due Process
Claim. 16
Because plaintiff’s Procedural Due Process Claim is futile on
the ground that plaintiff failed to allege a protectible liberty
interest, 17 leave to amend to add the Procedural Due Process Claim
is denied. 18
16
Even if plaintiff had alleged a protectible liberty interest,
plaintiff’s scheduled performances were within a day or so of the NYPD
defendants’ alleged statements to venue owners and promoters.
This short
timeframe would not provide sufficient time to conduct a hearing, even assuming
that the balancing of interests of public safety versus the plaintiff’s
reputation would warrant one.
In this regard, the Court has expressed its
position in the past that it will not prevent “the police internally [from]
performing law enforcement functions.” Tr. of Oral Arg., May 31, 2018, ECF No.
4 at 9:11-12; see also 14:19-20. It follows that this Court would be highly
unlikely to find that plaintiff was entitled to a hearing in advance of NYPD
officers’ urgent communications with promoters and venue owners made in
furtherance of law enforcement.
17
The Court also notes the delay in this proposed amendment,
notwithstanding that this claim was apparent from the outset of the case.
18 In the PSAC, plaintiff seeks to add a number of allegations to his
Liberty Interest Claim. These proposed additions do not change the nature of
his claim but do provide additional detail already set forth in the Factual
Allegations, including that defendants: stated to Parascandola of the New York
Daily News that plaintiff was a Dub City member, ¶ 65; told the media about his
prior arrests, ¶ 66; stated to promoters and venue owners that he was a gang
member, ¶ 67; and activated him on the Database, ¶ 69. In principle, the Court
has no objection to these amendments.
That said, the Court’s conclusion that there is no interference with a
liberty interest upon which to perform a procedural due process analysis
obviously calls into question the viability of the Liberty Interest Claim —
which is not the subject of the motion to amend — for identical reasons. As a
matter of intellectual consistency, it appears to the Court that — having found
that the Procedural Due Process Claim fails to state a claim on which relief
can be granted — the Liberty Interest Claim also should be dismissed. If there
is a flaw in this reasoning, the Court invites plaintiff to address it.
18
Case 1:18-cv-04805-NRB Document 87 Filed 02/19/21 Page 19 of 20
C. Fourth Cause of Action: Equal Protection Claim
The PSAC adds a fourth cause of action against the City of
New York alleging an equal protection violation arising from
plaintiff’s inclusion in the Database (“Equal Protection Claim”).
ECF No. 81-1 ¶¶ 94–101.
Defendants oppose the inclusion of this
amendment, arguing that it is futile.
This amendment is denied because Court already dismissed
plaintiff’s
Monell
claims
alleged
in
the
FAC,
one
of
which
challenged plaintiff’s inclusion in the Database on the basis that
the Database is comprised predominantly of non-white individuals.
ECF No. 51 at 7-8; see also ECF No. 23 ¶¶ 95, 97 (Monell claim
alleging that the City “maintain[s] a policy, custom, or practice
of maintaining a ‘gang database’ in violation of the First and
Fourteenth Amendments” which consists “almost entirely of people
who are non-white”); see also id. ¶ 24 (“NYPD’s ‘gang database’ is
comprised
almost
plaintiff”).
entirely
of
non-white
individuals,
including
Plaintiff cannot bring a claim that was already
dismissed. 19
19 Even if the Equal Protection Claim were not already dismissed, it would
be futile. “To establish a violation of the Equal Protection Clause based on
selective enforcement, a plaintiff must ordinarily show the following: (1) that
the person, compared with others similarly situated, was selectively treated;
and (2) that such selective treatment was based on impermissible considerations
such as race, religion, intent to inhibit or punish the exercise of
constitutional rights, or malicious or bad faith intent to injure a person.”
Freedom Holdings, Inc. v. Spitzer, 357 F.3d 205, 234 (2d Cir. 2004) (citation
omitted).
“[I]t is well established that ‘proof of racially discriminatory
intent or purpose is required to show a violation of the Equal Protection
Clause.’” Drew, 2020 WL 3869732, at *3 (citing Vill. of Arlington Heights v.
Metro. Hous. Dev. Corp., 429 U.S. 252, 265 (1977)).
19
Case 1:18-cv-04805-NRB Document 87 Filed 02/19/21 Page 20 of 20
IV.
Conclusion
For the foregoing reasons, plaintiff’s motion for leave to
file an amended complaint is GRANTED in part and DENIED in part.
The
Court
permits
amendment
to
replace
John
Doe
defendants
throughout the complaint and denies the additions of the Procedural
Due Process and Equal Protection Claims.
The Court does not
address the PSAC’s amendments to the eleventh cause of action in
light of plaintiff’s withdrawal of this cause of action during
oral argument.
To the extent not addressed in the preceding
Memorandum
Order,
and
plaintiff’s
proposed
amendments
are
permitted.
Plaintiff is directed to file his Second Amended Complaint
consistent with this Memorandum and Order within seven days of its
issuance. The Clerk of Court is respectfully directed to terminate
the motion pending at docket entry 69.
SO ORDERED.
Dated:
New York, New York
February 19, 2021
___________________________
NAOMI REICE BUCHWALD
UNITED STATES DISTRICT JUDGE
Here, the PSAC alleges that the Database “is comprised almost entirely of
non-white individuals,” and that “white nationalist organizations who have a
presence . . . are not included.” ECF No. 81-1 ¶¶ 97-98. Without more, the
PSAC does not allege proof of “racially discriminatory intent or purpose”
sufficient to sustain a violation of the Equal Protection Clause. See Drew,
2020 WL 3869732, at *3 (dismissing Equal Protection claim where plaintiff failed
to offer anything more than conclusory allegations).
20
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