Walsh v. City of New York et al
ORDER granting in part and denying in part 28 Motion to Dismiss. For the foregoing reasons, Defendants' motion to dismiss the complaint is GRANTED in part and DENIED in part. Accordingly: Defendants' motion to dismiss Plaintiff' s first, third, fifth, seventh, ninth, eleventh, thirteenth, fifteenth, eighteenth, and twentieth causes of action is GRANTED without prejudice to replead. Defendant's motion to dismiss Plaintiff's second, fourth, sixth, tenth, twelfth, fourteenth, sixteenth (to the extent that he is proceeding under a selective enforcement theory based on a malicious or bad faith intent to injure), and nineteenth causes of action is DENIED. Defendant's motion to dismiss Plaintiff's eig hth, seventeenth, and twenty-first causes of action is GRANTED. Plaintiff may file an amended complaint by April 26, 2021. The Clerk of Court is directed to terminate the motion at ECF No. 28. SO ORDERED.. (Signed by Judge Analisa Torres on 3/31/2021) (ks)
In June 2018, Martin Walsh, a white man, was on the northwest corner of First Avenue
and 87th Street in Manhattan attempting to cross the street, when he was almost struck by a
bicyclist, Francisco Bruno, Jr. Compl. ¶¶ 21–22, 24. Bruno, who is believed to be of
“Hispanic or Latino” descent, brandished a metal chain in a threatening manner, while using
profanity and other threatening language. Id. ¶¶ 24, 66. Plaintiff continued walking until
Bruno dismounted his bicycle and blocked Plaintiff’s path. Id. ¶ 25. Plaintiff turned around,
walked away from Bruno, and dialed 911. Id. ¶¶ 26–27. Plaintiff informed the 911 operator
that he was an off-duty court officer in need of emergency assistance because he was being
menaced and harassed by Bruno. Id. ¶ 28. Less than five minutes later, Officers Oliver
Liebowitz and John Doe 1 arrived at the scene. Id. ¶ 29. Plaintiff recounted the incident to the
officers, and identified Bruno. Id. ¶ 30. Liebowitz then began questioning Bruno. Id. ¶ 31.
Soon thereafter, Officer Kevon Sample arrived and interviewed Bruno. Id. ¶¶ 32–33.
Sample then approached Plaintiff and asked him to shake hands with Bruno and “forget about
this,” which Plaintiff refused to do. Id. ¶¶ 34–35. Liebowitz appeared annoyed at Plaintiff’s
refusal, said “we’ll see about that,” and then directed Plaintiff to not leave the scene while
Liebowitz walked away with Sample. Id. ¶¶ 36–37. When Sample and Liebowitz returned,
Sample informed Plaintiff that the police had identified a witness to the altercation, and that
Plaintiff was under arrest based on the information provided by that witness. Id. ¶¶ 38–40.
At the direction of Sample, Liebowitz and Doe 1 handcuffed Plaintiff, placed him in a
police car, and transported him to the NYPD’s 19th precinct. Id. ¶ 41. Plaintiff complained to
Liebowitz and Doe 1 that the handcuffs were too tight, causing him substantial pain and
discomfort. Id. ¶ 42. He states that he was ignored for approximately twenty minutes. Id.
¶ 43. At the precinct, Plaintiff was searched, questioned, photographed, and fingerprinted. Id.
¶ 44. He asked about the status of his cross-complaint against Bruno, because Plaintiff had
told the Arresting Officers that his job required him to file a formal complaint whenever he
dialed 911. The officers ignored his requests. Id. ¶¶ 35, 45. Later that evening, Plaintiff was
moved to Central Booking, where he was subjected to additional searches and placed in a cell.
Id. ¶¶ 46–47. At approximately 11:00 p.m., Plaintiff was arraigned and released on his own
recognizance. Id. ¶ 48. He appeared in Criminal Court three times to contest the charges, and
on December 19, 2018, the case was dismissed. Id. ¶¶ 51–52.
Plaintiff alleges that the Arresting Officers conspired with the other Defendant
Officers—Lunsford, Milfort, Doran, and Clark—to arrest and criminally prosecute Plaintiff in
retaliation for a prior, unrelated federal lawsuit that Plaintiff filed against the City of New
York, Lunsford, Milfort, Doran, and Clark. Id. ¶¶ 58, 79–89. As a result of that lawsuit,
Plaintiff recovered a substantial money judgment. Id. ¶ 61. He alleges that Sample and
Liebowitz knew Lunsford and Milfort at the time of Plaintiff’s arrest, and that Sample had
previously worked with Lunsford and Milfort at the same precinct. Id. ¶¶ 60, 80. Plaintiff
alleges that Sample knew that an appeal of the prior lawsuit was pending before the Second
Circuit. Id. ¶ 62.
I. Legal Standard
To withstand a Rule 12(b)(6) motion to dismiss, “a complaint must contain sufficient
factual matter . . . 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 plaintiff
is not required to provide “detailed factual allegations” in the complaint, but must assert “more
than labels and conclusions.” Twombly, 550 U.S. at 555. Ultimately, the “[f]actual allegations
must be enough to raise a right to relief above the speculative level.” Id. Courts must accept the
allegations in the complaint as true and draw all reasonable inferences in favor of the nonmovant. ATSI Commc’ns, Inc., 493 F.3d at 98.
“On a motion to dismiss, the court may consider any written instrument attached to the
complaint as an exhibit or any statements or documents incorporated in it by reference.” Yak v.
Bank Brussels Lambert, 252 F.3d 127, 130 (2d Cir. 2001) (internal quotation marks, alteration,
and citation omitted). “To be incorporated by reference, the [c]omplaint must make a clear,
definite, and substantial reference to the documents.” White v. City of New York, 206 F. Supp.
3d 920, 929 (S.D.N.Y. 2016) (citation and quotation marks omitted). “Where a document is not
incorporated by reference, the court may nevertheless consider it where the complaint ‘relies
heavily upon its terms and effect,’ thereby rendering the document ‘integral’ to the complaint.”
Id. (citation omitted). The Court may also rely upon “matters of which judicial notice may be
taken,” which include facts that are “not subject to reasonable dispute in that [they are] (1)
generally known within the territorial jurisdiction of the trial court or (2) capable of accurate and
ready determination by resort to sources whose accuracy cannot be questioned.” Davis v. Cotov,
214 F. Supp. 2d 310, 315 (E.D.N.Y. 2002).
Defendants ask the Court to consider the following documents in deciding their motion to
dismiss: (1) a copy of the Sprint event chronology which provides details regarding a call placed
to 911 by Bruno, see ECF No. 30-2; (2) a copy of the Sprint event chronology which provides
details regarding the call placed to 911 by Plaintiff, see ECF No. 30-3; (3) a copy of the criminal
complaint prepared by the New York County District Attorney’s Office in connection with
Plaintiff’s arrest, see ECF No. 30-4; and (4) a certificate of disposition indicating that the charges
against Plaintiff were dismissed, see ECF No. 30-5; Def. Mem. at 8–9, ECF No. 29.
The Court shall take into consideration the certificate of disposition. See Crown Heights
Shomrim Volunteer Safety Patrol, Inc. v. City of New York, 2014 WL 4804869, at *1 (E.D.N.Y.
Sept. 25, 2014) (“Matters of public record of which the court may take judicial notice include . . .
certificates of disposition.”). Plaintiff alleges that the criminal prosecution against him was
resolved in his favor, see Compl. ¶¶ 167, 175, and there is no “material dispute regarding the
relevance” or “authenticity” of this document, Azurdia v. City of New York, No. 18 Civ. 4189,
2019 WL 1406647, at *4–5 (E.D.N.Y. Mar. 28, 2019) (quotation marks omitted).
By contrast, the Court is not persuaded that it should consider the criminal complaint or
the Sprint event chronologies at this stage of the litigation. Defendants argue that the Court may
take judicial notice of these documents as either documents integral to the complaint or
incorporated by reference, or as public records. Def. Mem. at 8–9. The Court disagrees.
First, there is no evidence that Plaintiff relied on them when drafting his complaint.
Moreover, “[a] document is not integral simply because its contents are highly relevant to a
plaintiff’s allegations, but only when it is clear that the plaintiff relied on the documents in
preparing his complaint.” Williams v. City of New York, No. 14 Civ. 5123, 2015 WL 4461716, at
*2 (S.D.N.Y. July 21, 2015). Additionally, even though some courts have taken judicial notice
of a criminal complaint as a public record, the Court declines to do so here because “[its]
accuracy and authenticity is explicitly called into question by the plaintiff’s allegations.”
Azurdia, 2019 WL 1406647, at *5. Plaintiff’s allegations and the allegations in the criminal
complaint are directly in tension. Compare Compl. ¶¶ 74, 81, 84, with ECF No. 30-4. Thus, to
consider the criminal complaint, “despite plaintiff’s serious allegations about [its] falsity[,]
would ‘amount to a premature determination that the arresting officers are more credible than the
plaintiff.’” Azurdia, 2019 WL 1406647, at *5 (quoting Williams, 2015 WL 4461716, at *2).1
A. False Arrest
Defendants move to dismiss Plaintiff’s § 1983 claim of false arrest against the Defendant
Officers. Def. Mem. at 7–10. To state a claim for false arrest under § 1983, a plaintiff must
show that “(1) the defendant intended to confine [the plaintiff], (2) the plaintiff was conscious of
the confinement, (3) the plaintiff did not consent to the confinement[,] and (4) the confinement
was not otherwise privileged.” Ackerson v. City of White Plains, 702 F.3d 15, 19 (2d Cir. 2012).
The fourth element is not established where the arrest is based on probable cause. Id.
“[P]robable cause to arrest exists if an arresting officer has actual knowledge or
reasonably trustworthy information of facts and circumstances that are sufficient to warrant a
person of reasonable caution in the belief that the person to be arrested has committed or is
committing a crime.” Weyant v. Okst, 101 F.3d 845, 852 (2d Cir. 1996). Defendants contend
that the Arresting Officers had probable cause to arrest Plaintiff for harassment, under New York
Penal Law § 240.26, or assault, under New York Penal Law § 120.00. Def. Mem. at 8–9.
Defendants rely principally on the Sprint event chronologies and criminal complaint to establish
probable cause. Id. The Court is not persuaded.
Under New York law, harassment in the second degree occurs when, “with intent to
harass, annoy or alarm another person . . . [a person] strikes, shoves, kicks or otherwise subjects
such other person to physical contact, or attempts or threatens to do the same . . .” N. Y. Penal
For these same reasons, the Court will not consider the NYPD Omniform Complaint Report attached to
Defendants’ reply papers. ECF No. 43-1.
Law § 240.26. There is a “physical contact element” to harassment. People v. Canjura, 2
N.Y.S.3d 724, 727 (N.Y. App. Div. 2014). For harassment to be charged, there must be
“genuine threats.” Rafael F. v. Pedro Pablo N., 965 N.Y.S.2d 718, 719 (N.Y. App. Div. 2013).
Applying these principles, Defendants have not shown that there was probable cause to
arrest Plaintiff for harassment. Defendants posit that the Sprint event chronologies and the
criminal complaint establish that Bruno placed an emergency phone call to 911 and that Plaintiff
assaulted Bruno. Def. Mem. at 8–9. However, as discussed, the Court shall not consider this
evidence at this stage of the litigation. Assuming the truth of Plaintiff’s allegations, he claims
that he did not physically threaten or harm Bruno. Compl. ¶¶ 25–26. Rather, he alleges that he
walked away and called 911 to request emergency assistance. Id. ¶¶ 25–27. Moreover, Bruno
did not sign the criminal complaint. ECF No. 30-4; see Singer v. Fulton Cnty. Sheriff, 63 F.3d
110, 119 (2d Cir. 1995) (“An arresting officer advised of a crime by a person who claims to be
the victim, and who has signed a complaint or information charging someone with the crime, has
probable cause to effect an arrest absent circumstances that raise doubt to the victim’s
veracity.”). Thus, taking Plaintiff’s allegations as true, and drawing all reasonable inferences in
Plaintiff’s favor, the Court cannot conclude that his arrest for harassment was lawful.
Under New York law, a “person is guilty of assault in the third degree when: (1) [w]ith
intent to cause physical injury to another person, he causes such injury to such person or to a
third person[,] or (2) [h]e recklessly causes physical injury to another person.” N.Y. Penal Law
§ 120.00. Here, Defendants again rely on the Sprint event chronologies and the criminal
complaint. Def. Mem. at 7–8. Because Plaintiff alleges that he did not physically threaten or
harm Bruno, see Compl. ¶¶ 25–27, the Court cannot conclude that there was probable cause to
arrest Plaintiff for assault.
Accordingly, Defendants’ motion to dismiss Plaintiff’s false arrest claim is DENIED.
B. Malicious Prosecution
Defendants’ move to dismiss Plaintiff’s malicious prosecution claim under § 1983. Def.
Mem. at 7–10. To sustain a claim for malicious prosecution under § 1983, a plaintiff must show:
“(1) the initiation of a proceeding, (2) its termination favorably to plaintiff, (3) lack of probable
cause, and (4) malice.” Savino v. City of New York, 331 F.3d 63, 72 (2d Cir. 2003) (citation and
internal quotation marks omitted). As with false arrest, “the existence of probable cause is a
complete defense to a claim of malicious prosecution in New York.” Id. Again, Defendants
contend that this claim should be dismissed because the Arresting Officers had probable cause.
Because the Court cannot conclude that probable cause existed for Plaintiff’s arrest,
Defendants’ motion to dismiss this claim is DENIED.
C. Qualified Immunity
Defendants argue that, in any event, they did not need actual probable cause because the
Arresting Officers are entitled to qualified immunity. Def. Mem. at 21–22. Qualified immunity
shields public officials performing discretionary functions from federal civil liability insofar as
their conduct does not violate clearly established statutory or constitutional rights of which a
reasonable person would have known, or insofar as it was objectively reasonable for them to
believe that their acts did not violate those rights. Bradway v. Gonzales, 26 F.3d 313, 317–18
(2d Cir. 1994). A police officer is entitled to qualified immunity from a claim for arrest without
probable cause if: (1) it was objectively reasonable for the officer to believe that probable cause
existed; or (2) officers of reasonable competence could disagree on whether there was probable
cause. Zellner v. Summerlin, 494 F.3d 344, 369–370 (2d Cir. 2007). The Second Circuit has
defined this standard, referred to as “arguable probable cause,” as follows:
Arguable probable cause exists when a reasonable police officer in the same
circumstances and possessing the same knowledge as the officer in question could
have reasonably believed that probable cause existed in the light of well
established law. . . . [I]t is inevitable that law enforcement officials will in some
cases reasonably but mistakenly conclude that probable cause is present, and we
have indicated that in such cases those officials—like other officials who act in
ways they reasonably believe to be lawful—should not be held personally liable.
Cerrone v. Brown, 246 F.3d 194, 202–03 (2d Cir. 2001) (internal quotation marks and citations
omitted). “In the Rule 12(b)(6) context, the facts supporting the defense of qualified immunity
must appear on the face of the complaint; even then, a motion to dismiss may be granted on
qualified immunity grounds only if the plaintiff fails to plausibly allege a claim for relief.”
Sullivan v. City of New York, No. 14 Civ. 1134, 2015 WL 5025296, at *8 (S.D.N.Y. Aug. 25,
2015). Relying again on the Sprint event chronologies and the criminal complaint, Defendants
contend that arguable probable cause existed for Plaintiff’s arrest. Def. Mem. at 20–22.
Plaintiff has raised sufficient doubts concerning what the arresting officers knew or
should have known at the time of his arrest. “At this procedural juncture, [Defendants] face a
formidable challenge to prevail on [qualified immunity] grounds, particularly when the arguable
probable cause inquiry turns on what the arresting officer knew or did not know regarding the
facts that establish justification.” Prevost v. City of New York, No. 13 Civ. 3760, 2014 WL
6907560, at *4 (S.D.N.Y. Dec. 9, 2014) (internal quotation marks omitted). In light of Plaintiff’s
allegations that the arresting officers fabricated evidence against him and coerced Bruno into
making false statements, see Compl. ¶ 74, it is impossible for the Court to discern what the
officers knew. Therefore, “there is insufficient evidence at this stage of the case to determine as
a matter of law whether [the arresting officers] had arguable probable cause” to arrest Plaintiff.
Alvarez v. County of Orange, 95 F. Supp. 3d 385, 401–02 (S.D.N.Y. 2015); see also Conte v.
County of Nassau, No. 06 Civ. 4746, 2010 WL 3924677, at *14 (E.D.N.Y. Sept. 30, 2010).
Accordingly, the individual defendants are not entitled to qualified immunity.
D. First Amendment Claim
Plaintiff alleges a First Amendment retaliation claim under § 1983 against the individual
defendants. Compl. ¶¶ 119–25. To succeed on a First Amendment retaliation claim, a plaintiff
must show that: “(1) he has a right protected by the First Amendment; (2) the defendant’s actions
were motivated or substantially caused by his exercise of that right; and (3) the defendant’s
actions caused him some injury.” Dorsett v. City of Nassau, 732 F.3d 157, 160 (2d Cir. 2013).
“The existence of probable cause [generally] defeats a First Amendment claim premised on the
allegation that defendants arrested a plaintiff based on a retaliatory motive.” Caravalho v. City
of New York, 732 Fed. App’x 18, 23 (2d Cir. 2018); see also Nieves v. Bartlett, 139 S. Ct. 1715,
1724 (2019). A plaintiff may plead injury by showing either that his speech has been adversely
affected by government retaliation or that he has suffered some other concrete, non-speech
related harm. Dorsett, 732 F.3d at 160. Here, Defendants argue that this claim should be
dismissed because Plaintiff failed to allege the protected speech or activity that resulted in the
retaliatory arrest. Def. Mem. at 10–11. Defendants also contend that probable cause existed for
Plaintiff’s arrest. Id. The Court disagrees.
First, Plaintiff has sufficiently alleged a protected speech or activity. He claims that the
Arresting Officers retaliated against him because he won a lawsuit against the City and
Defendants Lunsford, Milfort, Doran, and Clark. Compl. ¶¶ 58–64. “[W]here the allegedly
protected conduct is the filing of a lawsuit,” the rule of a “matter of public concern” applies.
Heusser v. Hale, 777 F. Supp. 2d 366, 378 (D. Conn. 2011) (quotation marks and citation
omitted). Courts have defined a matter of public concern as circumstances implicating any
“political, social, or other concern to the community.” Id. Plaintiff’s previous lawsuit addresses
“generalized police misconduct.” Id. at 379 (citing White Plains Towing Corp. v. Patterson, 991
F.2d 1049, 1058 (2d Cir. 1993) (“[A] police department’s employment policies . . . are a matter
of public concern.”)); Compl. ¶ 78. Thus, Plaintiff has plausibly alleged that his filing of the
previous lawsuit is protected speech.
Second, although a plaintiff must plead “some sort of harm, it is not necessary for that
harm to be a chilling of speech in every case.” Vaher v. Town of Orangetown, 916 F. Supp. 2d
404, 431–32 (2d Cir. 2013) (quotation marks and citation omitted). Here, Plaintiff claims that he
was injured by the Arresting Officers’ alleged retaliatory conduct, including harm to his
reputation, damage to his credibility, and the chilling of his desire to file future lawsuits. Compl.
¶¶ 91, 110, 123. Plaintiff, therefore, has adequately alleged that Defendants’ conduct caused him
some injury. Doe v. City of New York, No. 18 Civ. 670, 2020 WL 108265, at *10 (E.D.N.Y. Jan.
Finally, for the reasons discussed above, the Court cannot conclude that there was
probable cause to arrest Plaintiff.
Accordingly, Defendants’ motion to dismiss Plaintiff’s First Amendment claim is
E. Excessive Force
Defendant moves to dismiss Plaintiff’s excessive force claim under § 1983. Def. Mem.
at 11–13. Plaintiff alleges that the Arresting Officers used excessive force when handcuffing
him during and after his arrest. Compl. ¶¶ 159–162. When considering whether handcuffing
constitutes excessive force, a court “is to consider evidence that: (1) the handcuffs were
unreasonably tight; (2) the defendants ignored the [arrestee’s] pleas that the handcuffs were
unreasonably tight; and (3) the degree of injury to the wrists.” Lynch ex rel. Lynch v. City of
Mount Vernon, 567 F. Supp. 2d 459, 468 (S.D.N.Y. 2008). This standard reflects the need to
balance the “right to use some degree of coercion,” including the use of “tight handcuffs to
prevent the arrestee’s hands from slipping out,” with the use of “overly tight handcuffing that
could constitute excessive force.” Dunkelberger v. Dunkelberger, No. 14 Civ. 3877, 2015 WL
5730605, at *14 (S.D.N.Y. Sept. 30, 2015) (quotation marks and citation omitted). “Courts in
this Circuit have generally found that handcuffing does not suffice for an excessive force claim
unless it causes some injury beyond temporary discomfort and bruising.” Case v. City of New
York, 233 F. Supp. 3d 372, 385–86 (S.D.N.Y. 2017) (quotation marks and citation omitted).
Defendants argue that Plaintiff has failed to articulate a legally cognizable injury. The Court
Although Plaintiff alleges that he pleaded with the Arresting Officers to loosen the
excessively tight handcuffs, and that they refused to do so for over twenty minutes, see Compl.
¶¶ 42–43, these allegations fall short of stating a claim for relief. Allegations of temporary and
generalized pain are routinely rejected as insufficient. Case, 233 F. Supp. 3d at 386; Guerrero v.
City of New York, No. 12 Civ. 2916, 2013 WL 5913372, at *6 (S.D.N.Y. Nov. 4, 2013). And,
courts in this district have found allegations of much longer periods of uncomfortable
handcuffing insufficient to state a claim. Omor v. City of New York, No. 13 Civ. 2439, 2015 WL
857587, at *8 (S.D.N.Y. Feb. 27, 2015) (four to five hours); Bender v. City of New York, No. 09
Civ. 3286, 2011 WL 4344203, at *6 (S.D.N.Y. Sept. 14, 2011).
Accordingly, Defendants’ motion to dismiss Plaintiff’s federal claim of excessive force is
F. Malicious Abuse of Process
Defendants move to dismiss Plaintiff’s malicious abuse of process claim under § 1983
against the individual defendants. Def. Mem. at 13–14. To state a claim for malicious abuse of
process under § 1983, a plaintiff must allege that the defendant: “(1) employ[ed] regularly issued
legal process to compel performance or forbearance of some act; (2) with intent to do harm
without excuse or justification; and (3) in order to obtain a collateral objective that is outside
legitimate ends of process.” Savino v. City of New York, 331 F.3d 63, 76 (2d Cir. 2004) (internal
quotation marks, alteration, and citation omitted).
As reflected in this pleading standard, a malicious abuse of process claim requires that a
legal process be abused to achieve a collateral objective beyond or in addition to legitimate ends,
such as “extortion, blackmail or retribution.” See Bd. of Educ. of Farmingdale Union Free Sch.
Dist. v. Farmingdale Classroom Teachers Ass’n, Inc., 343 N.E.2d 278, 283 (N.Y. 1975); see also
Cook v. Sheldon, 41 F.3d 73, 80 (2d Cir. 1994). That Defendants sought Plaintiff’s arrest and
prosecution does not constitute such a “collateral objective.” See Hauser v. Bartow, 7 N.E.2d
268, 270 (N.Y. 1937); see also Cook v. Sheldon, 41 F.3d 73, 80 (2d Cir. 1994). And,
“deprivation of . . . liberty, embarrass[ment], inconvenience,” and legal expenses are direct,
rather than collateral, consequences of arrest that are insufficient to support a malicious abuse of
process claim. Van Houtven v. Adams, No. 13 Civ. 1964, 2014 WL 1338066, at *3 (S.D.N.Y.
Apr. 3, 2014), aff’d, 605 Fed. App’x. 37 (2d Cir. 2015). Defendants argue that dismissal is
warranted because Plaintiff has failed to identify a collateral objective. The Court disagrees.
Here, Plaintiff claims that the Arresting Officers sought to retaliate against him because
of his prior successful lawsuit and to diminish his credibility. Compl. ¶¶ 63–64. These
allegations “permit the Court to infer that [D]efendants intended to do Plaintiff harm, but, an
evil motive is not enough to sustain a claim for malicious abuse of process,” and does not
amount to a collateral objective. Marmon v. City of New York, No. 15 Civ. 2017, 2016 WL
916424, at *10 (S.D.N.Y. Mar. 7, 2016); see also Arrington v. City of New York, 628 Fed. App’x
46, 49–50 (2d Cir. 2015); Moritz v. Town of Warwick, No. 15 Civ. 5424, 2016 WL 3248494, at
*5 (S.D.N.Y. June 9, 2016). Plaintiff also claims that the Arresting Officers were retaliating
against him in order to curry favor with Defendants Lunsford, Milfort, Doran, and Clark.
Compl. ¶¶ 63–64. The Court holds that this allegation could plausibly establish a collateral
objective. Hauser, 7 N.E.2d at 269–70.
Accordingly, Defendants’ motion to dismiss Plaintiff’s abuse of process claim is
G. Right to a Fair Trial
Defendants’ move to dismiss Plaintiff’s claim under § 1983 based on a denial of his right
to a fair trial. Def. Mem. at 14–15. “When a police officer creates false information likely to
influence a jury’s decision and forwards that information to prosecutors, he violates the
accused’s constitutional right to a fair trial, and the harm occasioned by such an unconscionable
action is redressable in an action for damages under [§ 1983].” Ricciuti v. N.Y.C. Transit Auth.,
124 F.3d 123, 130 (2d Cir. 1997). A plaintiff need not have actually proceeded to trial in order
to have an actionable § 1983 claim based on the denial of his right. Id. at 127. Rather, the
allegedly false information must be material such that it “would likely influence the jury if it
arrived at a jury.” Garnett v. Undercover Officer C0039, No. 13 Civ. 7083, 2015 WL 1539044,
at *8 (S.D.N.Y. Apr. 6, 2015). Further, the plaintiff must “suffer a deprivation of liberty as a
result.” Jovanovic v. City of New York, 486 Fed. App’x 149, 152 (2d Cir. 2012); see also
Schiller v. City of New York, No. 04 Civ. 10178, 2008 WL 200021, at *10 (S.D.N.Y. Jan. 23,
2008) (“The limiting factor appears to be not whether the plaintiff went to trial but whether the
falsification caused material harm.”).
Plaintiff claims that the Defendant Officers violated his right to a fair trial when they
fabricated evidence against him and forwarded it to the District Attorney’s Office. Compl.
¶¶ 198–202. Specifically, Plaintiff alleges that the Arresting Officers made up the existence of
an unidentified eyewitness and coerced Bruno into making false accusations about Plaintiff. Id.
¶¶ 68–69. The statements allegedly made by Bruno served as a basis for the criminal complaint
signed by Liebowitz and filed by the District Attorney. Id. ¶¶ 70–71. Plaintiff also alleges that
he suffered a deprivation of liberty after he was arrested and held in various cells until his
arraignment and release. Id. ¶¶ 47–48. Thus, accepting these factual allegations as true and
drawing all reasonable inferences in Plaintiff’s favor, the Court finds that he has plausibly stated
a claim for a denial of a right to a fair trial. Henry v. City of New York, No. 02 Civ. 4824, 2003
WL 22077469, at *4 (S.D.N.Y. Sept. 8, 2003).
Accordingly, Defendants’ motion to dismiss Plaintiff’s right to a fair trial claim is
H. Conspiracy Claims
Plaintiff alleges that the individual defendants conspired to interfere with his civil rights
and failed to prevent the conspiracy under 42 U.S.C. §§ 1983, 1985, and 1986. Compl.
¶¶ 224–31. To prove conspiracy under § 1983, “a plaintiff must show: (1) an agreement between
two or more state actors or between a state actor and a private entity; (2) to act in concert to
inflict an unconstitutional injury; and (3) an overt act done in furtherance of that goal causing
damages.” Chamberlain v. City of White Plains, 986 F. Supp. 2d 363, 287 (S.D.N.Y. 2013)
(quoting Pangburn v. Culbertson, 200 F.3d 65, 72 (2d Cir. 1999)). In addition, to state a claim
for conspiracy pursuant to 42 U.S.C. § 1985, “a plaintiff must allege: (1) a conspiracy; (2) the
purpose of which was to deprive a person or class of persons of equal protection of the laws or of
equal privileges or immunities under the law; (3) actions by the defendants in furtherance of the
conspiracy; (4) injury to plaintiff’s person or property or deprivation of a right as a result of these
actions; and (5) class-based discriminatory animus.” Little v. City of New York, 487 F. Supp. 2d
426, 441 (S.D.N.Y. 2007). Finally, § 1986 provides a cause of action against anyone who,
“having knowledge that any of the wrongs conspired to be done and mentioned in [§] 1985 are
about to be committed and having power to prevent or aid, neglects to do so.” Mian v.
Donaldson, Lufkin & Jenrette Sec. Corp., 7 F.3d 1085, 1088 (2d Cir. 1993).
In order to survive a motion to dismiss, § 1983 and § 1985 conspiracy claims “must
provide some factual basis supporting a meeting of the minds, such as that defendants entered
into an agreement, express or tacit, to achieve the unlawful end, augmented by some details of
time and place and the alleged effects of the conspiracy.” K.D. ex rel. Duncan v. White Plains
Sch. Dist., 921 F. Supp. 2d 197, 208 (S.D.N.Y. 2013) (internal quotation marks omitted). The
plaintiff must also allege overt acts in which the defendants engaged to further the agreement, as
well as an actual violation of the rights that defendants were alleged to have conspired to violate.
Id. at 209.
Here, Plaintiff has failed to sufficiently allege a conspiracy under § 1983. In sum,
Plaintiff alleges that: the Defendant Officers (1) conspired with each other and set forth a plan or
design to unlawfully arrest, detain, and maliciously prosecute Plaintiff because of his prior
successful lawsuit against Lunsford, Milfort, Doran, and Clark, (2) fabricated the existence of an
unidentified eyewitness, and (3) coerced Bruno into in making false statements against Plaintiff.
Compl. ¶¶ 58, 82–84. But, the complaint does not describe how or when the Defendant Officers
entered into the agreement. Plaintiff’s conspiracy claim amounts to a vague legal conclusion
devoid of facts “tending to show agreement and concerted action,” and cannot, therefore, survive
a motion to dismiss. Cox v. City of New Rochelle, No. 17 Civ. 8193, 2020 WL 5774910, at *7
(S.D.N.Y. Sept. 28, 2020); see also Demaitre v. City of New York, No. 18 Civ. 12403, 2020 WL
6048192, at *7 (S.D.N.Y. Oct. 11, 2020).
For this same reason, Plaintiff fails to set forth the necessary elements of a conspiracy
claim under § 1985. Unlike a conspiracy claim under § 1983, a claim under § 1985 must be
“motivated by ‘some racial or perhaps otherwise class-based, invidious discriminatory animus
behind the conspirators’ action.’” Mian, 7 F.3d at 1088 (quoting United Brotherhood of
Carpenters v. Scott, 463 U.S. 825, 829 (1983)). Plaintiff alleges that the Defendant Officers
discriminated against him because he is a white man, and that Bruno is believed to be of
Hispanic or Latino descent. See Compl. ¶ 66. But Plaintiff does not allege any facts that could
plausibly show that racial animus motivated the actions of Defendants. These “[c]onclusory
allegations about a protected class do not suffice.” K.W. ex rel. Brown v. City of New York, 275
F.R.D. 393, 400 (E.D.N.Y. 2011). Thus, this claim fails. Because Plaintiff’s allegations of
conspiracy under § 1985 are insufficient, Plaintiff’s derivative § 1986 claim must also be
Accordingly, Defendants’ motion to dismiss Plaintiff’s federal conspiracy claims is
I. Municipal Liability
Defendants move to dismiss Plaintiff’s municipal liability claim. Def. Mem. at 22–25.
Plaintiff seeks to hold the City liable for the deprivation of his constitutional rights. In order for
municipal liability to attach for alleged constitutional violations, a plaintiff must prove: “(1)
actions taken under color of law; (2) deprivation of a constitutional or statutory right; (3)
causation; (4) damages; and (5) that an official policy of the municipality caused the
constitutional injury.” Roe v. City of Waterbury, 542 F.3d 31, 36 (2d Cir. 2008) (citing Monell v.
Dep’t of Social Servs., 436 U.S. 658, 690–91 (1978)). “The fifth element—the ‘official policy’
element—can only be satisfied where a plaintiff proves that a ‘municipal policy of some nature
Because the Court finds that Plaintiff has not sufficiently pleaded the existence of an agreement among
Defendants, the Court need not address whether the intracorporate conspiracy doctrine applies here. The doctrine
applies to individual defendants who are employees of the same corporate institution. Salgado v. City of New York,
No. 00 Civ. 3667, 2001 WL 290051, at *8 (S.D.N.Y. Mar. 26, 2001). An exception to the intracorporate conspiracy
doctrine exists when individuals pursue “personal interests wholly separate and apart from the entity.” Bond v. Bd.
of Educ., No. 97 Civ. 1337, 1999 WL 151702, at *2 (E.D.N.Y. Mar. 17, 1999); see also Girard v. 94th & Fifth
Avenue Corp., 530 F.2d 66, 72 (2d Cir. 1976) (“[T]he plaintiff must also allege that they acted other than in the
normal course of their corporate duties.”).
caused a constitutional tort.’” Id. (quoting Monell, 436 U.S. at 691). “In other words, a
municipality may not be found liable simply because one of its employees committed a tort.” Id.
(citing Bd. of County Comm’rs v. Brown, 520 U.S. 397, 405 (1997)).
To establish a municipal policy or custom, a plaintiff must allege that: (1) “a particular
municipal action itself violates federal law, or directs an employee to do so,” Brown, 520 U.S. at
404; (2) an “authorized decisionmaker has intentionally deprived a plaintiff of a federally
protected right,” id. at 405; (3) unconstitutional “practices [are] so persistent and widespread as
to practically have the force of law,” Connick v. Thompson, 563 U.S. 51, 61 (2011); or (4) a
municipality’s failure to train its employees “about their legal duty to avoid violating citizens’
rights” amounts to “deliberate indifference,” id. Moreover, “there must be a ‘direct causal link
between [the] municipal policy or custom and the alleged constitutional deprivation.’” Triano v.
Town of Harrison, 895 F. Supp. 2d 526, 531 (S.D.N.Y. 2012) (quoting City of Canton v. Harris,
489 U.S. 378, 385 (1989)). “[T]he mere assertion that a municipality has such a custom or
policy is insufficient in the absence of allegations of fact tending to support, at least
circumstantially, such an inference.” Zahra v. Town of Southold, 48 F.3d 674, 685 (2d Cir.
1995) (internal quotation marks, alteration, and citation omitted).
Plaintiff seemingly attempts to establish a municipal policy or custom under the third and
fourth theories: that the City’s employees have engaged in unconstitutional practices that are so
consistent and widespread as to practically carry the force of law, see Compl. ¶¶ 92–93,
247–49, and that the City failed to provide adequate training regarding probable cause,
reasonable suspicion, and the use of force, see id. ¶¶ 101, 250–52. Defendants argue that
Plaintiff has failed to allege sufficient facts to a state claim under either theory. The Court agrees
1. Failure to Train
To succeed on a failure to train theory, the complaint must demonstrate “a direct causal
link between” the alleged failure to train and the constitutional deprivation. Triano, 895 F. Supp.
2d at 531 (internal quotation marks and citation omitted). Moreover, “a municipality’s failure to
train its employees in a relevant respect must amount to deliberate indifference to the rights of
persons with whom the [untrained employees] come into contact.” Connick, 563 U.S. at 61
(internal quotation marks and citation omitted). “‘[D]eliberate indifference’ is a stringent
standard of fault, requiring proof that a municipal actor disregarded a known or obvious
consequence of his action.” Id. (quoting Bd. of Cnty. Comm’rs of Bryan Cnty. v. Brown, 520
U.S. 397, 410 (U.S. 1997)). “Thus, when city policymakers are on actual or constructive notice
that a particular omission in their training program causes city employees to violate citizens’
constitutional rights, the city may be deemed deliberately indifferent if the policymakers choose
to retain that program.” Id. “The city’s ‘policy of inaction’ in light of notice that its program
will cause constitutional violations ‘is the functional equivalent of a decision by the city itself to
violate the Constitution.’” Id. at 61–62 (quoting Canton, 489 U.S. at 395).
Generally, “[a] pattern of similar constitutional violations by untrained employees is . . .
necessary to demonstrate deliberate indifference for purposes of failure to train.” Id. at 62
(internal quotation marks omitted). “Policymakers’ ‘continued adherence to an approach that
they know or should know has failed to prevent tortious conduct by employees may establish the
conscious disregard for the consequences of their action—the “deliberate indifference”—
necessary to trigger municipal liability.’” Id. (quoting Brown, 520 U.S. at 407).
At the motion to dismiss stage, the Second Circuit applies a three-pronged test to
determine whether a plaintiff has demonstrated a municipality’s “deliberate indifference” in the
context of a failure to train claim. Walker v. City of New York, 974 F.2d 293, 297–98 (2d Cir.
1992). “First, the plaintiff must show that a policymaker knows ‘to a moral certainty’ that her
employees will confront a given situation.” Id. at 297 (quoting Canton, 489 U.S. at 390 n.10).
“Second, the plaintiff must show that the situation either presents the employee with a difficult
choice of the sort that training or supervision will make less difficult or that there is a history of
employees mishandling the situation.” Id. And, third, “the plaintiff must show that the wrong
choice by the city employee will frequently cause the deprivation of a citizen’s constitutional
rights.” Id. at 298. Where all three elements are established a plaintiff has stated a plausible
Monell claim based on a failure to train. Id.; see also Amnesty Am. v. Town of W. Hartford, 361
F.3d 113, 130 n.10 (2d Cir. 2004).
The Court finds that Plaintiff has not alleged facts which establish the second element.
To support his claim, Plaintiff contends that within the last five years, the individual defendants
were named in multiple lawsuits “accus[ing] them of committing violations similar or identical
to those alleged” in this case. See Compl. ¶¶ 106–107.3 Although “citations to pending lawsuits
and settlement agreements” may “permit a plausible inference of deliberate indifference,” these
conclusory allegations do not suffice. Case, 233 F. Supp. 3d at 406. Indeed, Plaintiff does not
specify which defendants, other than Sample, have been involved in previous lawsuits, or how
any of these lawsuits are similar to this action. The Court rejects Plaintiff’s request that it
consider news articles attached to his complaint. See ECF No. 1-1. These articles address
various types of police misconduct, encompassing topics not clearly relevant to Plaintiff’s
allegations. See e.g., ECF No. 1-1 at 1–4, 29–30, 40–41.
Plaintiff attempts to incorporate new allegations concerning Defendants’ past misconduct into his opposition
papers. Pl. Opp’n at 39, ECF No. 35. However, the Court declines to consider those allegations here, as they do not
appear in the complaint. See Peter F. Gaito Architecture, LLC, v. Simone Dev. Corp., 602 F.3d 57, 64 (2d Cir.
2. Force of Law
Next, Plaintiff has not alleged facts which establish “a practice so persistent and
widespread, or permanent and well settled, as to constitute a custom or usage with the force of
law and to imply the constructive knowledge of policymaking officials.” Medina v. City of New
York, No. 19 Civ. 9412, 2020 WL 7028688, at *7 (S.D.N.Y. Nov. 30, 2020). Under this theory,
a plaintiff must show that the local policymaker is “faced with a pattern of misconduct and does
nothing, compelling the conclusion that the local government has acquiesced in or tacitly
authorized its subordinates’ unlawful actions.” Reynolds v. Giuliani, 506 F.3d 183, 192 (2d Cir.
2007). “Isolated acts of excessive force by non-policymaking municipal employees are
generally not sufficient to demonstrate” a municipal policy or custom. Jones v. Town of E.
Haven, 691 F.3d 72, 81 (2d Cir. 2012). To the extent that Plaintiff is arguing that these prior
lawsuits put the City on notice of a pattern or practice of unconstitutional behavior, this argument
fails because he does not allege whether these lawsuits were filed before the events at issue here.
See Nicosia v. Town of Hempstead, No. 16 Civ. 1176, 2017 WL 3769246, at *3 (E.D.N.Y. Aug.
28, 2017). Of course, there is no “per se rule that a [p]laintiff must plead a specific number of
unconstitutional violations before his claim becomes viable.” Medina, 2020 WL 7028688, at *7.
But, Plaintiff’s conclusory factual allegations do not plausibly establish this claim. Id.
Accordingly, Defendants’ motion to dismiss Plaintiff’s municipal liability claim is
J. Equal Protection Claims
Plaintiff alleges § 1983 and § 1981 claims based on violations of the Equal Protection
Clause. Compl. ¶¶ 214–23. The Equal Protection Clause is “essentially a direction that all
persons similarly situated should be treated alike.” City of Cleburne v. Cleburne Living Ctr., 473
U.S. 432, 439 (1985). “[T]he prototypical equal protection claim involves discrimination against
people based on their membership in a vulnerable class.” Harlen Assocs. v. Inc. Vill. of Mineola,
273 F.3d 494, 499 (2d Cir. 2001). To establish his § 1983 claim, Plaintiff proceeds under two
theories: (1) selective enforcement, and (2) a facially neutral law or policy applied in a
discriminatory manner. Compl. ¶¶ 214–23.
1. Selective Enforcement
The Second Circuit has “recognized that the Equal Protection Clause may be violated by
selective enforcement or selective adverse treatment.” Bush v. City of Utica, 558 F. App’x 131,
134 (2d Cir. 2014). “To establish a violation . . . based on selective enforcement, a plaintiff must
ordinarily show: (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) (alteration in original). “A plaintiff asserting a selective enforcement . . . claim must
present evidence of similarly situated comparators.” Glover v. City of New York, No. 15 Civ.
4899, 2018 WL 4906253, at *11 (E.D.N.Y. Oct. 9, 2018) (quoting Church of Am. Knights of the
Ku Klux Klan v. Kerik, 356 F.3d 197, 210 (2d Cir. 2004)). To be “‘similarly situated,’ the
individuals with whom [he] attempts to compare [him]self must be similarly situated in all
material respects.” Sumway v. United Parcel Serv., Inc., 118 F.3d 60, 64 (2d Cir. 1997) (citation
Plaintiff does not articulate the impermissible considerations that underlie his equal
protection claim. He appears to allege that he was treated differently from Bruno because
Plaintiff is a white male, and because of Plaintiff’s previously filed lawsuit. Compl. ¶ 89. Thus,
the Court understands Plaintiff to be proceeding on the theory that any selective treatment was
based on the impermissible considerations of race and national origin, or malicious or bad faith
intent to injure a person.
Plaintiff has sufficiently pleaded selective treatment based on the impermissible
consideration of malicious or bad faith intent to injure a person. The Court rejects Defendants’
contention that Plaintiff has failed to establish a “similarly situated comparator” at this stage of
the litigation. Def. Mem. at 15–16. Here, “[p]laintiff must identify comparators whom a prudent
person would think were roughly equivalent.” Tower Props. LLC v. Vill. of Highland Falls, No.
14 Civ. 4502, 2015 WL 4124499, at *8 (S.D.N.Y. July 7, 2015) (quotation marks, alterations,
and citation omitted).
Taking the facts in the complaint as true, Plaintiff has sufficiently alleged that he and
Bruno were “roughly equivalent.” Id. First, Plaintiff claims that he was precluded from filing a
cross-complaint against Bruno, that he was directed to apologize and shake hands with Bruno
when the officers arrived, that he and Bruno had both accused each other of criminal conduct as
memorialized in cross complaints, and that both were present when the officers arrived. Compl.
¶¶ 78–89, 214–223. Yet, Plaintiff was arrested, and Bruno was not. Id. Thus, “it is plausible
that a jury could ultimately determine” that Plaintiff and Bruno were similarly situated. Panzella
v. City of Newburgh, 231 F. Supp. 3d 1, 8 (S.D.N.Y. 2017).
Moreover, Plaintiff has plausibly alleged that the selective treatment—the allegedly
unlawful arrest—was based on a malicious or bad faith intent to retaliate against Plaintiff for his
successful lawsuit. Compl. ¶¶ 78–89. A plaintiff can satisfy this standard by “simply showing
that defendants acted out of personal dislike of the plaintiff.” Doe v. Vill. of Mamaroneck, 462
F. Supp. 2d 520, at 554 (S.D.N.Y. 2006). Plaintiff alleges that Sample was aware of Plaintiff’s
prior successful lawsuit, that Sample and Liebowitz knew Defendants Lunsford, Milfort, Doran,
and Clark, and that Sample was assigned to the 75th NYPD precinct at the same time as
Lunsford and Milfort. Compl. ¶¶ 58, 60–62, 80. Moreover, the Second Circuit has recognized
that “the issue of intent underlying an equal protection claim generally belongs to the trier of
fact.” Savino v. Town of Se., 983 F. Supp. 2d 293, 300 (S.D.N.Y. 2013), aff’d, 572 F. App’x 15
(2d Cir. 2014). Thus, Plaintiff has plausibly alleged that he was unlawfully subjected to selective
treatment based on Sample and Liebowitz’s awareness of Plaintiff’s prior successful lawsuit and
Sample’s relationship with Lunsford and Moran as coworkers.
However, Plaintiff’s selective enforcement claim based on race or national origin fails.
Although Plaintiff states that he is white, and that Bruno is believed to be of “Hispanic or
Latino” descent, Compl. ¶ 66, there are no allegations which suggest that race or national origin
played a role in Plaintiff’s selective treatment.
2. Facially Neutral Law or Policy Applied in a Discriminatory Manner
In addition to a selective enforcement claim, “[t]here are several ways for a plaintiff to
plead intentional discrimination that violates the Equal Protection Clause.” Brown v. City of
Oneonta, 221 F.3d 329, 337 (2d Cir. 2000). A plaintiff may rely on: (1) a law that makes
classifications specifically based on a protected class, including race; (2) “a facially neutral law
or policy that has been applied in a discriminatory manner”; or (3) a facially neutral policy that
“has an adverse effect and was motivated by discriminatory animus.” Pyke v. Cuomo, 258 F.3d
107, 110 (2d Cir. 2001) (internal quotation marks and alteration omitted). Plaintiff is correct that
these theories do not require the identification of similarly situated comparators. Id. at 108–09;
see Pl. Opp’n at 28, ECF No. 35. A plaintiff proceeding under this theory must, however,
substantiate his “claim that [the defendants’ conduct] was motivated by racial discrimination.”
Glover, 2018 WL 4906253, at *16 (citing Pyke, 258 F.3d at 110) (alteration in original). As
discussed above, Plaintiff has failed to allege facts that could support a claim that the Arresting
Officers were motivated by racial discrimination.
3. 42 U.S.C. § 1981 Claim
Plaintiff also brings a claim under 42 U.S.C. § 1981. To establish a claim under 42
U.S.C. § 1981, plaintiffs must allege facts supporting the following elements: (1) plaintiffs are
members of a racial minority; (2) defendants’ intent to discriminate on the basis of race; and (3)
discrimination concerning one of the statute’s enumerated activities. See Mian, 7 F.3d at 1087.
Those enumerated activities include the rights “to make and enforce contracts, to sue, be parties,
give evidence, and to the full and equal benefit of all laws and proceedings for the security of
persons and property.” 42 U.S.C. § 1981(a). Because Plaintiff has failed to allege facts which
demonstrate that Defendants intended to discriminate based on race or national origin, this claim
must also fail.
Accordingly, Defendants’ motion to dismiss is DENIED to the extent that Plaintiff
proceeds on an equal protection claim under a theory of selective enforcement based on the
impermissible consideration of malicious or bad faith intent to injure, and GRANTED with
respect to Plaintiff’s other equal protection claims.
K. Other Federal Claims
Although Defendants move to dismiss the complaint in its entirety, see Def. Mem. at 1,
they fail to address Plaintiff’s unlawful search and seizure claim under § 1983, his false
imprisonment claim under § 1983, and his failure to intervene claim under § 1983, see Compl.
¶¶ 134–140, 148–152, 236–239. Because Defendants do not challenge these causes of action
specifically, the Court shall not consider them at this stage of the litigation. Univ. Ent. Events,
Inc. v. Classic Air Charter, Inc., No. 15 Civ. 1104, 2016 WL 951534, at *4 n.2 (S.D.N.Y. Mar.
Accordingly, Defendants’ motion to dismiss these claims is DENIED.
State Law Claims
“In a federal court, state notice-of-claim statutes apply to state-law claims.” Packard v.
City of New York, No. 15 Civ. 7130, 2017 WL 11580855, at *2 (S.D.N.Y. July 17, 2017)
(internal quotation marks, alteration, and citation omitted). New York General Municipal Law §
50-e provides that a notice of claim must be filed against the City before it can be sued “for torts
arising out of the conduct of police officers in the course of their employment with the
municipality.” Mejia v. City of New York, 119 F. Supp. 2d 232, 256–57 (E.D.N.Y. 2000). At the
pleading stage, plaintiffs must affirmatively plead compliance with the notice-ofclaim requirement. Davidson v. Bronx Mun. Hosp., 473 N.E.2d 761, 762–63 (N.Y. 1984) (per
curiam) (“Plaintiff must not only plead in his complaint that he has served a notice of claim, but
must also allege that the notice was served at least 30 days prior to commencement of the action
and that in that time defendants neglected to or refused to adjust or to satisfy the claim.”). “[A]
plaintiff must file a notice of claim within 90 days after [his] claim accrues.” Russell v.
Westchester Cmty. Coll., No. 16 Civ. 1712, 2017 WL 4326545, at *5 (S.D.N.Y. Sept. 27, 2017)
(citing N.Y. Gen. Mun. Law § 50-e(1)(a)).
Defendants argue that Plaintiff’s state law claims against Defendants should be dismissed
because Plaintiff failed to affirmatively plead that he filed a notice of claim against Defendants.4
Def. Mem. at 26–27. The Court agrees. “The notice of claim requirements are strictly
construed, and a plaintiff’s ‘failure to comply with the mandatory New York statutory notice-ofclaim requirements generally results in dismissal of his claims.’” Smith v. City of New York, No.
In Plaintiff’s opposition papers, he states that he complied with the statutory requirements set forth in New York
General Municipal Law §§ 50-e, 50-i, and 50-h, by serving the City of New York, via the office of the Comptroller,
with notice of his state law claims and by appearing for his oral examination, under § 50-h. Pl. Opp’n at 39–40.
Plaintiff fails, however, to indicate when he served the notice of claim. Id. Defendants represent to the Court,
without citation, that Plaintiff did not file a notice of claim until January 25, 2019. Def. Reply at 14–15, ECF No.
04 Civ. 3286, 2010 WL 3397683, at *15 (S.D.N.Y. Aug. 27, 2010) (citation omitted), aff’d sub
nom. Smith v. Tobon, 529 F. App’x 36 (2d Cir. 2013). Because Plaintiff failed to plead that he
filed a notice claim with respect to his state law claims, those claims are dismissed. El v. City of
New York, No. 14 Civ. 9055, 2015 WL 1873099, at *8 (S.D.N.Y. Apr. 23, 2015).
Accordingly, Defendants’ motion to dismiss Plaintiff’s state law claims is GRANTED
without prejudice to replead.
Claims Against Defendants Lunsford, Milfort, Doran, and Clark
The Court finds it appropriate to dismiss the claims against Defendants Doran, Lunsford,
Milfort and Clark from this action. The complaint fails to allege facts plausibly showing the
personal involvement of these defendants in the alleged constitutional violations. See Spavone v.
N.Y. State Dep’t of Corr. Serv., 719 F.3d 127, 135 (2d Cir. 2013). It is well settled that “group
pleading,” which “fail[s] to differentiate as to which defendant was involved in the alleged
unlawful conduct,” is insufficient to state a claim under § 1983. Myers v. Moore, 326 F.R.D. 50,
60 (S.D.N.Y. 2018). Thus, a plaintiff must make “specific factual allegations” against each
defendant. Thomas v. Venditto, 925 F. Supp. 2d 352, 363 (E.D.N.Y. 2013).
Plaintiff has failed to do so here. Plaintiff does not allege that these officers were present
when he was arrested. Rather, he makes conclusory allegations concerning their involvement,
including that they “improperly influenced,” “conspired with,” and “committed . . . overt acts in
furtherance of . . . [the] conspiracy” with the Arresting Officers. See, e.g., Compl. ¶¶ 73, 82–83.
These general allegations about their involvement fail to show “precisely who did what and how
such behavior is actionable under the law.” Gonzalez v. Yepes, No. 19 Civ. 267, 2019 WL
2603533, at *7–8 (D. Conn. June 25, 2019).
Accordingly, Plaintiff’s claims against Doran, Lunsford, Milfort, and Clark are
For the foregoing reasons, Defendants’ motion to dismiss the complaint is GRANTED in
part and DENIED in part. Accordingly:
Defendants’ motion to dismiss Plaintiff’s first, third, fifth, seventh, ninth, eleventh,
thirteenth, fifteenth, eighteenth, and twentieth causes of action is GRANTED without
prejudice to replead.
Defendant’s motion to dismiss Plaintiff’s second, fourth, sixth, tenth, twelfth, fourteenth,
sixteenth (to the extent that he is proceeding under a selective enforcement theory based
on a malicious or bad faith intent to injure), and nineteenth causes of action is DENIED.
Defendant’s motion to dismiss Plaintiff’s eighth, seventeenth, and twenty-first causes of
action is GRANTED.
Plaintiff may file an amended complaint by April 26, 2021.
The Clerk of Court is directed to terminate the motion at ECF No. 28.
Dated: March 31, 2021
New York, New York
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