Baerga v. City of New York et al

Filing 193

OPINION & ORDER re: 185 LETTER MOTION for Oral Argument Re: Defendants' partial MTD of Plaintiffs' SAC addressed to Judge Paul A. Crotty from P. Jenny Marashi dated 8/21/23. filed by Steven Greene, Giovanna Sanchez-Esquive l, Oritseweyimi Omoanukhe Ayu, Lisa Collins, Justin Baerga, Neil Amitabh, Justin E. Baerga, Voices of Community Activists and Leaders New York, Sarah Arvio, Community Access, Inc., National Alliance on Mental Illness of New York City, Inc., Correct Crisis Intervention Today - NYC, 174 MOTION to Dismiss in Part the Second Amended Complaint. filed by Eric Adams, Keechant L. Sewell, City Of New York, Tyrone Fisher, Gbain, Martin Haber, Julian Torres, Andre Dawkins, Deviendra Ramayya, Sanchez, Vikram Prasad, Marrone, Dermot F Shea, Bill de Blasio.For the foregoing reasons, the Court GRANTS the motion to dismiss Plaintiffs' claims under the ADA, the Rehabilitation Act, NYCHRL, and Monell liability , save for Greene, Sanchez-Esquivel, and Ayu's claims for reasonable accommodation under the ADA and Rehabilitation Act. The Court further GRANTS dismissal of Ayu's claims for false arrest arising from his April and May 2022 arrests, and Collins, Ayu, and Amitabh's warrantless entry claims, as well as their corresponding state law claims. As this is the first motion to dismiss, these claims are dismissed without prejudice. The motion is DENIED as to all other claims. The Cou rt finds this matter suitable for determination on the papers and without oral argument pursuant to Federal Rule of Civil Procedure 78(b). Plaintiffs may amend their complaint within 30 days in a manner consistent with this opinion. The Clerk of the Court is directed to terminate the motions at ECF Nos. 174 and 185. SO ORDERED. (Signed by Judge Loretta A. Preska on 3/26/2024) (jca)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
------------------------------------x
STEVEN GREENE, GIOVANNA SANCHEZ:
ESQUIVEL; SARAH ARVIO; LISA COLLINS; :
ORITSEWEYIMI OMOANUKHE AYU; and
:
NEIL AMITABH, individually and on behalf of all :
others similarly situated, and COMMUNITY
:
ACCESS, INC.; NATIONAL ALLIANCE ON
:
MENTAL ILLNESS OF NEW YORK CITY, INC.; :
CORRECT CRISIS INTERVENTION TODAY – :
NYC; and VOICES OF COMMUNITY
:
ACTIVISTS AND LEADERS NEW YORK,
:
:
:
Plaintiffs,
:
:
- against :
:
CITY OF NEW YORK; ERIC ADAMS; BILL DE :
BLASIO; KEECHANT L. SEWELL; DERMOT F. :
SHEA; NYPD POLICE OFFICER MARTIN
:
HABER; NYPD POLICE SERGEANT GBAIN, :
NYPD POLICE OFFICER VIKRAM PRASAD; :
NYPD POLICE OFFICER ANDRE DAWKINS; :
NYPD POLICE OFFICER TYRONE FISHER;
:
NYPD POLICE OFFICER DEVIENDRA
:
RAMAYYA; NYPD POLICE OFFICER JULIAN :
TORRES; NYPD OFFICER SANCHEZ; NYPD :
OFFICER MARRONE; and NYPD OFFICERS
:
JOHN and JANE DOES # 1-40,
:
:
:
Defendants.
:
------------------------------------x

21-CV-05762 (PAC)
OPINION & ORDER

Plaintiffs bring this putative class action against Defendants New York City (“the City”)
and numerous City employees to challenge the City’s practice of using “police officers as first
responders to mental health crises.” 1

Second Am. Compl. (“SAC”) ¶ 2, ECF No. 155.

1

Plaintiffs comprise two different groups. Individual Plaintiffs—Steven Greene, Giovanna
(cont’d on next page)
1

Specifically, Plaintiffs allege that the City’s policies unlawfully require the police forcibly to seize
individuals with perceived mental disabilities even when they pose no threat to themselves or
others, stripping the mentally disabled of their constitutional rights to be free from unwarranted
seizures, detentions, and excessive force. Id. ¶¶ 12–17. Plaintiffs seek compensatory and punitive
damages for alleged injuries caused by the policies, as well as a permanent injunction “mandating
implementation of a new, non-police mental health crisis response program operating
independently of the NYPD.” Id. ¶ 21.
Plaintiffs bring seven causes of action. Individual Plaintiffs assert claims for: unlawful
seizure, warrantless entry, and excessive force pursuant to 42 U.S.C. § 1983 (Counts III and IV);
and for violations of the New York State Constitution and New York common law (Count VI).
Individual and Organizational Plaintiffs collectively bring causes of action for: discrimination in
violation of the Americans with Disabilities Act (“ADA”), 42 U.S.C. § 12111 et seq., § 504 of the
Rehabilitation Act, 29 U.S.C. § 794 et seq., and the New York City Human Rights Law
(“NYCHRL”), N.Y.C. Admin. Code § 8-101 et seq. (Counts I, II, and VII); and for municipal

(cont’d from previous page)
Sanchez-Esquivel, Sarah Arvio, Lisa Collins, Oritseweyimi Omoanukhe Ayu, and Neil Amitabh
(“Individual Plaintiffs”)—are individuals who have been involuntarily hospitalized by the New
York City Police Department (“NYPD”) while in mental health crisis. Organizational Plaintiffs—
Community Access, Inc., National Alliance on Mental Illness of New York City, Inc. (“NAMINYC”), Correct Crisis Intervention Today-NYC (“CCIT-NYC”), and Voices of Community
Activists and Leaders New York (“VOCAL-NY”) (“Organizational Plaintiffs”)—are non-profit
organizations focused on mental health advocacy within New York City.
Individual Defendants are: Mayor Eric Adams; former Mayor Bill de Blasio; NYPD Police
Commissioner Keechant L. Sewell; former NYPD Police Commissioner Dermot F. Shea; NYPD
Police Officers Martin Haber, Carrku Gbain, Vikram Prasad, Andre Dawkins, Tyrone Fisher,
Deviendra Ramayya, Julian Torres, April Sanchez, Gabriele Morrone, and John and Jane Does #
1-40. Defendants Mayor De Blasio and Commissioner Shea are no longer in office. Thus, to the
extent they are sued in their official capacity, the suit is brought against Mayor Adams and
Commissioner Sewell respectively. See Fed. R. Civ. P. 25(d).
2

liability under Monell v. Department of Social Services of the City of New York, 436 U.S. 658
(1978) (Count V). Presently before the Court is Defendants’ Partial Motion to Dismiss Plaintiffs’
SAC pursuant to Federal Rule of Civil Procedure 12(b)(6). Defs.’ Mot. Dismiss, ECF No. 174.
Defendants move to dismiss all claims in the SAC save for the claims of one Individual Plaintiff.2
For the reasons that follow, Defendants’ motion is GRANTED IN PART and DENIED
IN PART. The Court GRANTS Defendants’ motion to dismiss Plaintiffs’ municipal liability
claim brought pursuant to Monell (Count V) and Plaintiffs’ disability discrimination claims
(Counts I, II, and VII), save for Greene, Sanchez-Esquivel, and Ayu’s claims for reasonable
accommodation under the ADA and Rehabilitation Act. The Court further GRANTS dismissal
of Ayu’s claims for false arrest arising from his April and May 2022 arrests, and Collins, Ayu, and
Amitabh’s warrantless entry claims, as well as their corresponding state law claims (Counts III
and VI). The motion is DENIED as to all other claims.
BACKGROUND
The Court begins by reviewing the factual and procedural background leading to the instant
motion to dismiss. The following facts are taken from the SAC and documents incorporated
therein and are assumed to be true for the purposes of deciding the motion. See Kassner v. 2nd
Ave. Delicatessen Inc., 496 F.3d 229, 237 (2d Cir. 2007).
I.

Policies Regarding Persons in Mental Health Crisis
Plaintiffs contend that the City has systemically failed “to provide safe, appropriate, and

immediate responses to New Yorkers experiencing mental health crises.” SAC ¶ 1. Plaintiffs’
chief complaint regards two policies: the NYPD’s Emotionally Disturbed Person Policy and the

2

Defendants do not move to dismiss plaintiff Sarah Arvio’s excessive force claim under § 1983,
her battery claim under New York state law, or her respondeat superior claim.
3

City’s Involuntary Removal Policy (collectively, the “Policies”). Id. ¶¶ 12, 17. In this section, the
Court will provide an overview of the Policies and their alleged shortcomings.
Each year, NYPD responds to approximately 200,000 calls regarding Emotionally
Disturbed Persons (“EDP”). Id. ¶ 398. Pursuant to the New York Mental Hygiene Law, in
responding to such calls, the police “may take into custody any person who appears to be mentally
ill and is conducting himself or herself in a manner which is likely to result in serious harm to the
person or others.” N.Y. Mental Hyg. Law § 9.41. Once in protective custody, § 9.41 directs the
police to transport the person to “any [approved] hospital . . . or any comprehensive psychiatric
emergency program” so that he or she may receive mental health treatment. Id.
The City gives NYPD guidance on how to execute mental health arrests pursuant to § 9.41
through the NYPD’s Emotionally Disturbed Person Policy (“EDP Policy”), located in the NYPD
Patrol Guide § 221-13. See EDP Policy, ECF No. 21-1. The purpose of the EDP Policy is to
“safeguard a mentally ill or emotionally disturbed person who does not voluntarily seek medical
assistance.” EDP Policy 1. It defines EDP as a “person who appears to be mentally ill or
temporarily deranged and is conducting himself in a manner which a police officer reasonably
believes is likely to result in serious injury to himself or others.” Id. The EDP Policy requires the
NYPD to take an EDP into protective custody when an officer “reasonably believes that a person
who is apparently mentally ill or emotionally disturbed . . . is conducting himself in a manner
likely to result in a serious injury to himself or others.” Id. at 2. The Policy then provides detailed
instructions on how to effectuate such arrests. See id. at 2–7.
In addition to the EDP Policy, in November 2022, Mayor Adams announced a new
“Involuntary Removal Policy,” SAC ¶ 131, which “clarif[ies] roles and responsibilities in
involuntary removals under Mental Hygiene Law sections 9.41 and 9.58.” Id. ¶ 134 (brackets

4

omitted). The Involuntary Removal Policy specifies that “both sections 9.41 and 9.58 authorize
the removal of a person who appears to be mentally ill and displays an inability to meet basic living
needs, even when no recent dangerous act has been observed.” Id. ¶ 135. Pursuant to the Policy,
the NYPD “may involuntarily detain” such individuals. Id. ¶ 136.
Plaintiffs object to these Policies on two grounds. First, they claim that the Policies require
the police to detain mentally disabled individuals “regardless of whether the ‘EDP’ appears to
present a danger to themselves [sic] or anyone else.” Id. ¶ 77. In support, Plaintiffs rely on the
experience of the six Individual Plaintiffs (discussed infra) and on the language of the Policies
themselves. Regarding the EDP Policy, they note that it requires the NYPD to take an individual
into custody even if the “the EDP is unarmed, not violent, and willing to leave voluntarily.” Id.
¶ 75 (quoting EDP Policy 4). Regarding the Involuntary Removal Policy, Plaintiffs take issue with
the fact that the NYPD may execute a mental health arrest “without any indication that [an EDP]
had committed or will commit a dangerous act.” Id. ¶ 17. Taken together, they argue that the
Policies allow the police “to seize individuals with perceived mental disabilities simply for
existing.” Pls.’ Mem. Law Opp’n Defs.’ Partial Mot. Dismiss (“Pls.’ Opp.”) 28, ECF No. 181.
Second, Plaintiffs claim that in effectuating mental health arrests, the police mistreat EDPs,
causing “traumatization, serious injuries, deaths, arrests, imprisonments, and forced
hospitalizations.” Id. ¶ 85. In support, Plaintiffs detail 24 incidents since 1984 in which mentally
disabled individuals were killed by police responding to EDP calls. SAC ¶ 82. Plaintiffs further
rely on two reports documenting the NYPD’s inadequate treatment of those with mental
disabilities. Id. ¶¶ 88–130. For example, in 2002, an Urban Justice Center report 3 concluded that

3

Charlotte Moses Fischman et al., Police Interactions with Individuals in Psychiatric Crisis,
(2002), https://www.kramerlevin.com/images/content/2/1/v4/2161/Police-Interact-Fischman.pdf.
5

the “NYPD’s training programs and protocols for dealing with individuals in emotional or
psychiatric crisis are not only bad policy, they may also violate federal and state law.” Id. ¶ 90
(quoting Urban Justice Center Report at 15). More recently, in 2017, the New York City
Department of Investigation, Office of the Inspector General for the NYPD, promulgated a report 4
(“OIG Report”) which “identified long-standing deficiencies in the NYPD’s handling of responses
to individuals with mental disabilities.” Id. ¶ 99.
Finally, Plaintiffs document what they characterize as a long history of failed efforts to
reform the NYPD’s handling of mental health calls. For example, in 2014, the City committed to
offering crisis intervention training (“CIT Training”) to all NYPD officers, yet four years later,
less than one-third of the force had been trained. Id. ¶¶ 96–97. More recently, in 2018, former
Mayor de Blasio launched a pilot program, the Behavioral Health Emergency Assistance Response
Division (“B-HEARD”), which aimed to have mental health professionals respond to “low acuity
mental health 911 calls.” Id. ¶ 107. B-HEARD originally sought to have mental health workers
respond to 70% of calls in covered areas, but Plaintiffs aver that the NYPD “continue[s] to respond
to nearly all mental health 911 calls.” Id. ¶ 111. Due to this and a number of other deficiencies,
Plaintiffs characterize B-HEARD as “only the latest in a series of failed efforts” to craft an
appropriate response to those in mental health crisis. Id. ¶ 128. They conclude that the City’s
consistent failure to divest the NYPD of its obligation to respond to mental health calls “has led to
the criminalization of individuals deemed by the NYPD to be ‘EDPs,’ the traumatization of these
individuals, extensive injuries to these individuals, and far, far too many deaths.” Id. ¶ 130.

4

OIG-NYPD, Putting Training into Practice: A Review of NYPD’s Approach to Handling
Interactions
with
People
in
Mental
Crisis
(2017),
http://www1.nyc.gov/assets/oignypd/downloads/pdf/Reports/CIT_Report_01192017.pdf.
6

II.

Individual Plaintiffs
Individual Plaintiffs in this action are people with actual or perceived mental disabilities

who Plaintiffs claim have been “unlawfully seized and forced into unconstitutional confinement.”
Id. ¶ 3. Plaintiffs claim at the time of each seizure, the individuals “were committing no crime,”
“presented no risk to themselves or anyone else,” yet were “forcibly detained, and injured
physically and/or emotionally, while being involuntarily transported to a hospital against their
will.” Id. ¶ 4. The following section details the allegations of each Individual Plaintiff.
A. Steven Greene
Plaintiff Steven Greene is a 26-year-old male diagnosed with post-traumatic stress disorder
(“PTSD”), attention deficit disorder (“ADD”), and an injured hip. SAC ¶ 146. On May 6, 2020,
at approximately 12:30 a.m., NYPD officers and EMS personnel arrived at Greene’s apartment in
response to an “EDP with gun” call to 911. Id. ¶ 147. One responding officer stated that Greene’s
social worker called and asked the police to “check in on him.” Id. ¶ 148. Plaintiffs aver that
Greene’s ex-girlfriend placed the call “to harass him.” Id.
When the police arrived, Greene informed the officers that “he was not suicidal, did not
tell anyone he was suicidal, and did not have any medical problems.” Id. ¶ 151. He “did not
conduct himself in a manner that could be considered likely to result in serious harm to himself or
others,” and at no point was Greene “in possession of a gun nor was there ever a gun present in his
apartment.” Id. At the time of the encounter, Greene was on the phone with his fiancé. Id. ¶ 153.
An officer took Greene’s phone and spoke with Greene’s fiancé who confirmed that Greene was
not suicidal. Id. ¶ 154.
Nevertheless, an EMS employee informed Greene that because of the 911 call, they had to
take him to the hospital. Id. ¶ 152. Greene explained that he did not want to go and walked back

7

inside his apartment. Id. ¶ 155. The officers followed Greene and “began grabbing him.” Id.
¶ 156. Greene grew “increasingly anxious” and asked the officers to stop touching him, telling
them he suffered from PTSD, ADD, and an injured hip. Id. ¶¶ 156–57. Instead, the officers
handcuffed him, forced him out of the apartment, dragged him down the stairs, and strapped him
to a gurney to be taken to the hospital. Id. ¶¶ 158–60. Greene repeatedly said that the stretcher
straps and the handcuffs were too tight and that his arms felt numb. Id. ¶ 161. He also stated that
his social worker could not have called 911 because she did not work after 5 p.m. and therefore
“could not have learned he was suicidal in the middle of the night.” Id. ¶ 162. Greene was brought
to North Central Bronx Hospital, where he remained for a few hours before being released. Id.
¶ 164. Because of the incident, Greene suffered “bruising and abrasions to his chest, arms, and
head,” as well as emotional trauma. Id. ¶¶ 164–65.
B. Giovanna Sanchez-Esquivel
Plaintiff Giovanna Sanchez-Esquivel is a 27-year-old student at Columbia University who
suffers from PTSD, autism, anxiety, depression, and bipolar disorder. Id. ¶ 172. On November 7,
2020, at approximately 9:00 p.m., Sanchez-Esquivel was experiencing a manic episode. Id. ¶ 173.
Her boyfriend called 311, and the operator informed him that there were no City services available
for at least 24 to 48 hours and that he should call 911 instead. Id. He called 911 and stated that
Sanchez-Esquivel had been having a “manic episode” for multiple days. Id. He further explained
that she was not violent and had no weapons but said that she had mental disabilities including
depression and bipolar disorder. Id.
Shortly after Sanchez-Esquivel’s boyfriend placed the call, NYPD officers arrived at the
apartment. 5 Id. ¶ 175. The officers spoke with Sanchez-Esquivel for approximately 25 minutes.
5

The officers included Defendants Haber, Gbain, Prasad, Fisher, Ramayya, and Torres. Id. ¶ 175.
8

Sanchez-Esquivel did not threaten to harm herself or others but instead “repeatedly and clearly”
told the officers that she wanted them to leave. Id. ¶ 176. Sanchez-Esquivel explained to the
officers that she had trauma from suffering multiple rapes. Id. ¶ 178. She also noted that she was
a neuroscientist with an understanding of her own mental illnesses, adding “I have zero cognitive
empathy, I’m autistic, I have PTSD, I’m not crazy, I’m rooted in reality.” Id.
After approximately 40 minutes, an officer stated that the police had to take SanchezEsquivel to the hospital “because she was not willing to go on her own.” Id. ¶ 179. The officers
handcuffed Sanchez-Esquivel as she cried and begged the officers to stop touching her because of
her history of trauma. Id. ¶ 180. Instead, the officers “picked her up and carried her when she
refused to leave.” Id. ¶ 181. She was taken to Woodhull Hospital. Id. ¶ 182. She suffered severe
bruises, back and shoulder pain, as well as PTSD and emotional distress. Id. ¶ 184.
C. Sarah Arvio
Plaintiff Sarah Arvio is a 67-year-old woman who suffers from polycythemia vera (a type
of leukemia) and Budd-Chiari syndrome (a related liver condition). Id. ¶ 185. On March 13, 2020,
at approximately 11 a.m., Arvio was on the phone with a staff member at Mount Sinai Institute for
Liver Medicine, trying to get her hepatologist to complete a disability form. Id. ¶¶ 186–87. During
the call, the staff member told Arvio that the hepatologist would not complete the form. Id. ¶ 188.
In “an expression of frustration,” Arvio told the staff member “I’m so frustrated with you all that
I feel like jumping off a bridge.” Id. ¶ 189.
Shortly thereafter, NYPD officers and an EMT arrived at Arvio’s home in the Bronx. Id.
¶ 190. Arvio answered the door barefoot and in her bathrobe. Id. The officers entered the
apartment and told Arvio they needed to take her to the hospital for psychiatric evaluation.
Id. ¶ 191. Arvio responded in a “calm, rational, and cordial manner” that she was fine and that she

9

had a busy day ahead. Id. ¶ 192. The officers said that because they received a call about suicide,
they were “mandated” to take the subject of the call to the hospital. Id. ¶ 194. “Seeing no
alternative,” Arvio agreed to go and began walking back towards her bedroom to get dressed, but
Defendant Officer Sanchez blocked her way. Id. ¶ 197–98. Sanchez said she would get Arvio’s
clothes, and Arvio “pleaded with [Sanchez] not to touch her things.” Id. ¶ 199. Arvio then walked
toward her desk to sit down, when she heard one of the officers say, “that’s it!” Id. ¶ 200. The
officers and the EMT then “swarmed” Arvio and “crushed their bodies around hers.” Id. The
officers “twisted Arvio’s arms behind her back and handcuffed her.” Id. ¶ 201. The handcuffs
were too tight and squeezed Arvio’s wrists. Id. Two of the officers kicked the back of Arvio’s
legs, and a third “held Arvio’s head and pressed his thumb into her neck, causing her to pass out.”
Id. ¶ 202. When Arvio regained consciousness, she found herself wrapped tightly on a gurney in
her hallway with her handcuffed wrists squeezed beneath her. Id. ¶ 203. Her leg was bleeding
profusely. Id. ¶ 204. Despite informing the officers and the EMT, the wound was not treated.
Id. ¶ 205.
Arvio was transported to Lincoln Medical Center. Id. ¶ 206. She remained in the hospital
for approximately six hours. Id. ¶ 210. Other than receiving an x-ray of her leg and plain distilled
water to pour into the wound, Arvio did not receive medical treatment for her leg. Id. The day
after the incident, Arvio woke up with sore spots and bruises all over her body. Id. ¶ 213. Three
days later she developed a fever due to an infection in her leg wound. Id. ¶ 214. On March 19,
2020, she went to the emergency room at Weil-Cornell where she was treated for her “traumatic
leg injury.” Id. Arvio continued to exhibit symptoms of infection for over two months and
continues to suffer from “extreme emotional distress.” Id. ¶¶ 215–16.

10

D. Lisa Collins
Plaintiff Lisa Collins is a 57-year-old woman who has never been diagnosed with a mental
illness. Id. ¶ 217. On January 7, 2022, Collins checked in to the Four Seasons Hotel in lower
Manhattan to enjoy a luxurious weekend that had been gifted to her. Id. ¶ 218. After checking in,
she was escorted to her room by a young hotel attendant. Id. ¶ 220. The attendant followed Collins
inside her room and engaged Collins in conversation, divulging personal details about various
health struggles she was experiencing. Id. ¶¶ 220–21. Collins was confused by the personal nature
of the encounter but nonetheless did her best to comfort the attendant during their half-hour long
conversation. Id. ¶ 222. When the attendant left, Collins got on with her vacation: she ordered a
cocktail, made dinner reservations with a friend, and headed to the pool for a swim. Id. ¶ 223.
While swimming, Collins was approached by a hotel employee who asked Collins to come
to the lobby. Id. ¶ 224. When Collins arrived in the lobby, still wet from the pool, she was greeted
by two NYPD officers and EMS workers. Id. ¶ 225. An EMS worker asked Collins “if she had
any thoughts of harming herself or heard voices in her head.” Id. ¶ 226. Incredulous, Collins
replied “of course not. I’m swimming.” Id. ¶ 227. She was then informed that the hotel manager
had called the police to report a threat of suicide based on information provided by the hotel
attendant who saw Collins to her room. Id. ¶ 228. Although Collins denied any suicidal ideation,
the police explained that “once they received a report of an ‘EDP,’ they needed to bring that person
to the hospital for an evaluation.” Id. ¶¶ 229–32. Collins was subsequently escorted to her room
by a female EMS employee. Id. ¶ 235. The EMS employee watched Collins change out of her
bathing suit and then forced Collins into an ambulance to be taken to the hospital. Id. ¶ 235–36.
At the hospital, Collins waited 90 minutes to be seen. Id. ¶ 240. When a psychiatrist finally

11

examined her, the psychiatrist expressed that Collins’ detention “was ridiculous and was angry on
Ms. Collins’ behalf.” Id. ¶ 241. She was released soon after. Id. ¶ 242.
E. Oritseweyimi Omoanukhe Ayu
Plaintiff Oritseweyimi Omoanukhe Ayu is a 41-year-old man who has been diagnosed with
bi-polar and schizoaffective disorder. Id. ¶ 245. He has been involuntarily detained by NYPD on
several occasions. Id. ¶ 246. In March 2022, Ayu was living at the Renaissance Shelter in Crown
Heights, where he was also receiving mental health treatment. Id. ¶ 247. One day, Ayu arrived
for a 10 a.m. psychiatry appointment and was told he could not be seen until 1 p.m. Id. ¶ 248. At
1 p.m., he was told he would have to wait until 3 p.m. Id. When he asked if he could be seen
sooner, the receptionist told him to ask someone outside the clinic. Id. When he stepped outside
the clinic, the receptionist locked the door behind him. Id. ¶ 249. Upset at not being seen and for
being tricked, Ayu began to bang on the door. Id. ¶ 250. Minutes later, seven NYPD officers
arrived. Id. ¶ 251. Ayu said he would leave voluntarily, but the officers stated that Ayu was an
EDP and that he must go with them. Id. ¶ 252. He was taken to Kings County Hospital and was
quickly discharged without receiving treatment. Id. ¶¶ 254–57.
On April 26, 2022, Ayu was on the subway at 2 a.m. when he received a phone call
informing him that his son had been murdered. Id. ¶ 258. Distraught, Ayu went to Kings County
Hospital to admit himself. Id. ¶ 259. After being turned away by hospital staff, two NYPD officers
asked him to leave, but he refused. Id. ¶¶ 260–62. Ayu began to film the officers and a scuffle
ensued. Id. ¶ 263. He was ultimately restrained by multiple officers and transported to the
psychiatric ward where he stayed for one week. Id. ¶¶ 264–65.
Weeks later, Ayu was in the lobby of the mental health clinic of Fortune Society in Queens.
Id. ¶ 267. While in the lobby, he spoke loudly and emotionally about his son’s recent murder. Id.

12

¶¶ 267–68. Minutes later, four NYPD officers surrounded Ayu and said they received a 911 report
that he threatened someone over the phone. Id. ¶ 270. They indicated they had to bring him to the
hospital. Id. ¶ 271. When he refused, the “NYPD officers slammed Ayu to the ground and
handcuffed him,” injuring his head in the process. Id. ¶ 273. He was taken to Elmhurst Hospital
Center in Queens and released after a psychiatric evaluation. Id. ¶ 276.
F. Neil Amitabh
Plaintiff Neil Amitabh is a 39-year-old man who has never been diagnosed with a mental
illness. Id. ¶ 280. In February 2023, Amitabh was homeless and had fallen asleep in a subway
station together with his girlfriend. Id. ¶ 281. He awoke to his girlfriend’s arguing with two NYPD
officers. Id. ¶ 282. The police told the couple to leave the station. Id. ¶ 283. As he gathered his
things to leave, an officer slammed Amitabh into the wall, injuring his hip. Id. ¶ 286. He was
taken to Bellevue for psychiatric evaluation and released the following morning. Id. ¶¶ 291–93.
Previously, in March 2020, Amitabh was living in a homeless encampment under an
overpass in the Bronx. Id. ¶ 297. One day he went to his former residence and hung his laundry
to dry on a railing in front of the building. Id. ¶ 298. The building manager called the police and
said that Amitabh was “off his medications” (he did not take medication), and soon after police
and EMS arrived. Id. ¶¶ 299–300. Amitabh told the police he did not need care, but he was taken
against his will to St. Barnabas and injected with a drug that caused him to pass out. Id. ¶¶ 301–
02. He was released two days later without medication. Id. ¶ 303. A few months later, Amitabh
again encountered the police while at his encampment. Id. ¶ 304. He was told to vacate the area.
Id. ¶ 305. While arguing with the police, he was asked to produce his identification, which he did
not have. Id. ¶¶ 306–07. At this, he was handcuffed and transported to St. Barnabas, where he
was soon discharged without a citation, charge, or medication. Id. ¶¶ 308–10.

13

III.

Organizational Plaintiffs
The Organizational Plaintiffs—Community Access, Inc. (“Community Access”), National

Alliance on Mental Illness of New York City, Inc. (“NAMI-NYC”), Correct Crisis Intervention
Today-NYC (“CCIT-NYC”), Voices of Community Activists and Leaders New York (“VOCALNY”) (collectively, “Organizational Plaintiffs”)—are organizations committed to supporting New
Yorkers with mental disabilities. Id. ¶ 11. Community Access was founded in 1974 to provide
supportive housing to New Yorkers with mental disabilities and is now a “leading advocate and
provider of affordable housing, education, job training, and crisis support for New Yorkers with
disabilities.” Id. ¶ 33. NAMI-NYC “helps families and individuals affected by mental disabilities
build better lives through education, support, and advocacy.” Id. ¶ 35. CCIT-NYC is a coalition
of more than 80 civil rights and human service organizations who “work together with a mission
to transform the City’s response to mental health crises by providing peer-driven supports to
individuals with mental disabilities.” Id. ¶ 37. Finally, VOCAL-NY is a statewide organization
that “advocates for low-income people affected by mental disabilities, HIV/AIDS, the war on
drugs, mass incarceration, and homelessness.” Id. ¶ 39. Collectively, the Organizational Plaintiffs
allege that they have diverted substantial resources to oppose the City’s police-based response to
mental health calls. Id. ¶ 11.
IV.

Procedural History
On July 5, 2021, Plaintiff Justin Baerga commenced this action, alleging numerous claims

under 42 U.S.C. § 1983, state common law, and both the United States and New York
constitutions.6 See Compl., ECF No. 1. On December 29, 2021, Plaintiffs amended their

6

Mr. Baerga passed away on June 28, 2022. ECF No. 107. Mr. Baerga’s claims have been
voluntarily dismissed. SAC ¶ 3 n.1.
14

Complaint, adding additional named Plaintiffs and seeking to certify the claims as a class action.
See First Am. Compl. (“FAC”), ECF No. 21. On September 13, 2022, Defendants collectively
moved to dismiss the FAC. ECF No. 101.
On November 29, 2022, while Defendants’ motion to dismiss was pending, the City
announced a new directive, the “Involuntary Removal Policy.” SAC ¶ 17. On December 8, 2022,
Plaintiffs filed an application to enjoin the new directive “pending the final determination of this
action.” Pl.’s Proposed Order Show Cause Emergency Relief 4, ECF No. 109. On January 30,
2023, this Court denied Plaintiffs’ motion for lack of standing. See Baerga v. City of New York,
No. 21 Civ. 5762 (PAC), 2023 WL 1107633 (S.D.N.Y. Jan. 30, 2023). In light of the Court’s
denial, Plaintiffs amended their Complaint a second time. The SAC adds facts and claims related
to the Involuntary Removal Policy, adds individuals who have been detained after the policy’s
announcement, and adds new organizations that have allegedly been negatively impacted by the
Policy. See Letter, ECF No. 147. On June 16, 2023, Defendants moved to dismiss.
ANALYSIS
I.

Legal Standard
To defeat a motion to dismiss for failure to state a claim pursuant to Federal Rule of Civil

Procedure 12(b)(6), a complaint must allege sufficient facts to state a plausible claim for relief.
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). A claim is facially plausible “when the plaintiff pleads
factual content that allows the court to draw the reasonable inference that the defendant is liable
for the misconduct alleged.” Id. at 678. While the court must accept all well-pleaded factual
allegations as true and draw all reasonable inferences in the plaintiff’s favor, the court is “not
bound to accept as true a legal conclusion couched as a factual allegation.” Id. Thus, a pleading
that offers only “labels and conclusions” or “a formulaic recitation of the elements of a cause of

15

action will not do.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007). For now, the task “is
merely to assess the legal feasibility of the complaint, not to assay the weight of the evidence which
might be offered in support thereof.” Lopez v. Jet Blue Airways, 662 F.3d 593, 596 (2d Cir. 2011).
II.

Individual Claims
A. Individual § 1983 Claims
The Court first addresses claims brought by Individual Plaintiffs pursuant to 42 U.S.C.

§ 1983. To assert a cognizable § 1983 claim, the plaintiff must allege “(1) the challenged conduct
was attributable at least in part to a person who was acting under color of state law and (2) the
conduct deprived the plaintiff of a right guaranteed under the Constitution of the United States.”
Snider v. Dylag, 188 F.3d 51, 53 (2d Cir. 1999).
1. False Arrest
“To state a § 1983 false arrest claim, a plaintiff must allege ‘that (1) the defendant intended
to confine him, (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.’” Grytsyk v. Morales,
527 F. Supp. 3d 639, 647 (S.D.N.Y. 2021) (quoting Ackerson v. City of White Plains, 702 F.3d 15,
19 (2d Cir. 2012)). 7 Probable cause to arrest “constitutes justification and is a complete defense
to an action for false arrest.” Jenkins v. City of New York, 478 F.3d 76, 84 (2d Cir. 2007) (quotation
omitted). Here, Defendants argue that each arrest was supported by probable cause.
Probable cause may be determined “as a matter of law if there is no dispute as to the
pertinent events and the knowledge of the officers.” Barkai v. Mendez, 629 F. Supp. 3d 166, 191
(S.D.N.Y. 2022) (quotation omitted). In the context of “a mental health arrest, police officers must

7

The Court considers Plaintiffs’ common law claims of false arrest in tandem with their § 1983
claims. See Weyant v. Okst, 101 F.3d 845, 852 (2d Cir. 1996).
16

consider whether probable cause exists to believe the individual is a danger to herself or others,
that is, whether there is a substantial risk of serious physical harm to herself or others.” Guan v.
City of New York, 37 F.4th 797, 807 (2d Cir. 2022). “[A] showing of probable cause in the mental
health seizure context requires only a probability or substantial chance of dangerous behavior, not
an actual showing of such behavior.” Heller v. Bedford Cent. Sch. Dist., 144 F. Supp. 3d 596, 622
(S.D.N.Y. 2015), aff’d, 665 F. App’x 49 (2d Cir. 2016) (quotation omitted). “Likelihood of serious
harm can be evidenced by overt acts, attempts or threats of harm, or by ‘other conduct’ such as
neglect or refusal to care for oneself.” Schoolcraft v. City of New York, 103 F. Supp. 3d 465, 505
(S.D.N.Y. 2015) (quoting Boggs v. New York City Health & Hospitals Corp., 523 N.Y.S.2d 71,
89 (N.Y. App. Div. 1st Dep’t 1987)). “However, refusal to accept medical treatment does not, by
itself, establish that a person is dangerous to himself.” Id.
The City takes purchase in the fact that several of the mental health arrests here were
pursuant to 911 calls indicating threats of suicide. Indeed, “a report of a suicide threat does more
to establish probable cause . . . [and] naturally call[s] for more reliance on the informant.”
Matthews v. City of New York, No. 15 Civ. 2311, 2016 WL 5793414, at *4 (S.D.N.Y. Sept. 30,
2016); see also Bayne v. Provost, No. 04 Civ. 44, 2005 WL 1871182, at *7 (N.D.N.Y. Aug. 4,
2005) (“[A] police officer is justified in relying upon a citizen’s warning that another person has
threatened suicide even if it is later determined by mental health professionals that the person
presents no such risk.”).

However, “police officers may not rely on an anonymous and

uncorroborated 911 call to justify a . . . belief that [plaintiff] presented a threat of physical harm to
himself or others.” Kerman v. City of New York, 261 F.3d 229, 238 (2d Cir. 2001); see also Lurch
v. City of New York, No. 19 Civ. 11254, 2021 WL 842616, at *4 (S.D.N.Y. Feb. 10, 2021), report
and recommendation adopted, 19 Civ. 11254, 2021 WL 1172506 (S.D.N.Y. Mar. 29, 2021)

17

(“Without knowing the contents of the 911 call, it is insufficient to establish probable cause (or
not) solely from that call.”). As such, a 911 call reporting a threat of suicide is generally not
sufficient, standing alone, to establish probable cause. Defendants must identify additional
circumstances which reasonably suggest that the Plaintiffs presented a danger to themselves or
others. Defendants have failed to meet this burden for all but Ayu’s March and April 2022 arrests.
Aviro, Greene, Collins, and Sanchez-Esquivel all present the same basic facts: (1) the
police received a 911 call indicating a threat of harm; (2) when police arrived, each Plaintiff calmly
denied any intention to harm himself or herself or others; (3) no other facts at the scene suggested
that Plaintiffs posed a danger to themselves or others; (4) each was arrested on the basis of the 911
call alone. 8 These sparse facts are insufficient to establish probable cause on a motion to dismiss.
See Dunkelberger v. Dunkelberger, No. 14 Civ. 3877, 2015 WL 5730605, at *14 (S.D.N.Y. Sept.
30, 2015) (motion to dismiss denied where officers received a call from a relative but had reasons
to doubt the veracity of the call when they showed up in person); Amid v. Police Officer Thomas
R. Lamb, No. 14 Civ. 3151, 2016 WL 1070814, at *3 (E.D.N.Y. Mar. 15, 2016) (denying motion
to dismiss because it was disputed whether plaintiff posed a danger to herself even though plaintiff
told suicide hotline she was contemplating suicide); Kerman, 261 F.3d at 240 (“We find it
significant that the police failed to corroborate the gravamen of [the] 911 call.”).
The Court cannot dismiss Amitabh’s false arrest claim because, based on the pleadings,
there is no indication that the police had reason to believe he was mentally ill. In order to arrest

8

The Court notes that Sanchez-Esquivel presents slightly different facts, as there, the 911 call did
not actually indicate that she had threatened to harm herself. Her boyfriend had only indicated
that she was having a manic episode but explained that she was not violent and had no weapons.
As “‘mental illness’ alone cannot justify a State’s locking a person up against their will,”
O’Connor v. Donaldson, 422 U.S. 563, 575 (1975), the existence of probable cause is even more
attenuated in her case.
18

someone pursuant to § 9.41, the police must have probable cause to believe both that the individual
“appears to be mentally ill” and that he or she is conducting himself or herself “in a manner which
is likely to result in serious harm to the person or others.” N.Y. Mental Hyg. Law § 9.41. While
the Defendants are correct that an “inability to meet . . . essential needs for food, clothing or
shelter,” Boggs, 523 N.Y.S.2d at 85, may establish the second factor, it cannot, standing alone,
establish the first. In two of the encounters, Amitabh alleges that he was detained simply for being
homeless. SAC ¶¶ 297–310. In the other encounter, the building manager reported that he was
“off his medication.” Id. ¶ 299. However, there is no indication how the building manager would
know such a detail, and no facts are alleged from which the officers could conclude that Amitabh
was in fact mentally ill. Accordingly, at this stage, the Court is “not yet in a position to conclude
as a matter of law that there existed probable cause.” Barkai, 2022 WL 4357923 at *20.
The facts alleged likewise do not support a finding of probable cause for Ayu’s March
2022 arrest. Plaintiff alleges that he was waiting to be seen by a psychiatrist, was subsequently
locked out of the office, and that he then banged on the door. SAC ¶¶ 248–50. There are no
allegations that the police were called, that they were aware of his behavior, or that he exhibited
signs of distress or danger once they arrived. Indeed, the only allegation is that he offered to “leave
the scene voluntarily.” Id. ¶ 252. The Court cannot find as a matter of law that these facts amount
to probable cause.
The Court cannot reach the same conclusion regarding Ayu’s April and May arrests. In
April, Ayu had a physical confrontation with police when he was turned away from receiving
psychiatric care. Id. ¶¶ 258–63. Typically, Ayu’s lack of cooperation would do little to establish
probable cause because “refusal to accept medical treatment does not, by itself, establish that a
person is dangerous to himself.” Schoolcraft, 103 F. Supp. 3d at 505. This, however, is not the

19

typical case. Here, Ayu was not refusing psychiatric care, he was demanding it. Id. ¶ 262. Given
his own representations, coupled with his resistant behavior, the police had probable cause to
believe that he was both suffering from a mental illness and posed a threat to himself or others.
The May 2022 arrest was also supported by probable cause. There, the allegations are that
the police received a report that Ayu had threatened someone on the phone. Id. ¶ 270. The police
then encountered Ayu in the lobby of a mental health clinic while he was being “emotional and
loud.” Id. ¶ 268. Unlike the other Plaintiffs, there is no indication that Ayu denied making the
threat or that he denied that he was in distress. Here, the fact that the police had received a tip that
he had made a threat, coupled with their firsthand observation of his escalated state and the fact
that he was in a mental health clinic made it reasonable for the police to believe that he was
suffering from a mental illness and presented a substantial risk of harm to himself or others. These
facts are sufficient to find probable cause for the arrest.
In sum, the Court DENIES Defendants’ motion to dismiss the false arrest claims as they
relate to Aviro, Greene, Collins, Sanchez- Esquivel, Amitabh, and Ayu’s March 2022 arrest. The
Court GRANTS the motion as to Ayu’s April and May 2022 arrests.
2. Warrantless Entry
The Fourth Amendment protects against “unreasonable searches and seizures.” U.S.
Const. amend IV. “The home has properly been regarded as among the most highly protected
zones of privacy, and the sanctity of private dwellings is ordinarily afforded the most stringent
Fourth Amendment protection.” Chamberlain Est. of Chamberlain v. City of White Plains, 960
F.3d 100, 105 (2d Cir. 2020) (citation omitted). It is a “basic principle of Fourth Amendment law
that searches and seizures inside a home without a warrant are presumptively unreasonable.”
Welsh v. Wisconsin, 466 U.S. 740, 749 (1984) (citation and quotation marks omitted).

20

Defendants argue that warrantless entry claims of Collins, Ayu, and Amitabh must be
dismissed because they were seized in public. See Defs.’ Mem. Law Supp. Partial Mot. Dismiss
(“Defs.’ Mem.”) 9 n.6, ECF No. 175. The Court agrees. “It is well-settled that a plaintiff must
possess a reasonable expectation of privacy in the places or items being entered or searched in
order to invoke the Fourth Amendment.” Gill v. Dawkins, No. 16 Civ. 1398, 2020 WL 7042647,
at *3 (E.D.N.Y. Nov. 30, 2020). Here, because all three were in public when they encountered the
police, none had a “constitutionally protected reasonable expectation of privacy.” California v.
Ciraolo, 476 U.S. 207, 211 (1986). Their claims for warrantless entry are dismissed.
Defendants argue that exigent circumstances justified their entry into the homes of Greene,
Aviro, and Sanchez-Esquivel. “Under the emergency aid doctrine, exigent circumstances exist
permitting entry if law enforcement has probable cause to believe that a person is ‘seriously injured
or threatened with such injury.’” Chamberlain, 960 F.3d at 105 (quoting Brigham City v. Stuart,
547 U.S. 398, 403 (2006)). The “police bear a heavy burden,” Welsh, 466 U.S. at 749, in
“justify[ing] a warrantless entry on the basis of exigent circumstances,” Chamberlain, 960 F.3d at
106. The “core question is whether the facts, as they appeared at the moment of entry, would lead
a reasonable, experienced officer, to believe that there was an urgent need to render aid or take
action.” Id. Important here, “an uncorroborated 911 call . . . reporting that a mentally ill person
was in distress is insufficient support for probable cause to believe there is a medical exigency.”
Id. at 111.
The Court finds that exigent circumstances did not justify the entry of Sanchez-Esquivel,
Greene, and Aviro’s homes. Regarding Aviro, it is unclear from the Complaint who called the
police or the contents of the call. Absent any other information, the uncorroborated 911 call cannot
support probable cause for exigent circumstances. Chamberlain, 960 F.3d at 111. Regarding

21

Greene, Plaintiffs contest the authenticity of the call. SAC ¶ 148. Regardless, once the police
arrived, Greene and his fiancé stated that Greene was not suicidal, did not threaten suicide, and did
not have any medical problems. Id. ¶ 151. Indeed, the very fact that the police prolonged their
entry to have this colloquy suggests there was no emergency. Cf. Chamberlain, 960 F.3d at 106
(“A police officer, for reasons of safety at least, seems unlikely to want to prolong the process [of
entering a dwelling].”). At the point they entered, it should have been clear that Greene was neither
“seriously injured [n]or threatened with such injury.” Chamberlain, 960 F.3d at 105 (quotation
omitted). Finally, as for Sanchez-Esquivel, there was never any indication that she was dangerous,
only that she was having a “manic episode.” SAC ¶ 173. Sanchez-Esquivel’s boyfriend specified
when placing the call that she was not violent nor had any weapons. Id. Accordingly, Defendants’
motion is DENIED as to Sanchez-Esquivel, Greene, and Aviro’s warrantless entry claims.
3. Excessive Force 9
“The Fourth Amendment prohibits the use of excessive force in police-citizen
interactions.” Chamberlain, 960 F.3d at 113. “Determining whether force was reasonable requires
‘a careful balancing of the nature and quality of the intrusion on the individual’s Fourth
Amendment interests against the countervailing governmental interests at stake.’” Id. (quoting
Graham v. Connor, 490 U.S. 386, 396 (1989)). Courts must pay “careful attention to the facts and
circumstances of each particular case, including the severity of the crime at issue, whether the
suspect poses an immediate threat to the safety of the officers or others, and whether he is actively
resisting arrest or attempting to evade arrest by flight.” Graham, 490 U.S. at 396.

9

Defendants do not move to dismiss Aviro’s claim for excessive force. Defs.’ Mem. 10. Collins
does not allege an excessive force claim. SAC ¶ 79. Additionally, as assault and battery under
New York common law is identical to a § 1983 claim for excessive force, the Court addresses
Plaintiffs’ claims simultaneously. See Humphrey v. Landers, 344 F. App’x 686, 688 (2d Cir.
2009).
22

“A successful excessive force claim requires sufficient evidence to establish that the
alleged use of force was serious or harmful enough to be actionable.” Ferebee v. City of New York,
No. 15 Civ. 1868 (PAC), 2017 WL 2930587, at *8 (S.D.N.Y. July 6, 2017). “A de minimis use of
force will rarely suffice to state a constitutional claim and de minimis injury can serve as conclusive
evidence that de minimis force was used.” Id. (citation omitted). “Pushes or shoves that cause no
injury cannot support an excessive force claim.” Id.
The Court finds that all four Plaintiffs have plausibly alleged excessive force. Regarding
Greene and Sanchez-Esquivel, the police spoke with both at length before effectuating an arrest.
SAC ¶¶ 151, 179. During those conversations, Plaintiffs denied that they posed any threat and
conducted themselves in a calm manner. Id. ¶¶ 151, 178. Despite their calm demeanor, both were
allegedly subjected to substantial force. Id. ¶ 161 (describing that Greene “repeatedly said that the
stretcher straps and handcuffs were too tight and that his arms felt numb”); id. ¶ 184 (describing
that Sanchez-Esquivel sustained “severe bruises” and “back and shoulder pain caused by being
handcuffed and dragged”). Regarding Amitabh, the SAC alleges that he was “slammed” into the
wall injuring his hip despite complying with the officers’ command to vacate the station. Id. ¶ 286.
As to Ayu, the SAC alleges that he was “slammed” to the ground, potentially causing a concussion.
Id. ¶ 273. In each instance, Plaintiffs allegedly sustained injuries sufficient to maintain their
claims. Sforza v. City of New York, No. 07 Civ. 6122, 2009 WL 857496, at *15 (S.D.N.Y. Mar.
31, 2009) (“A plaintiff need not demonstrate serious injury to prevail in an excessive force claim;
bruising and other nonpermanent injuries are sufficient.”). Moreover, at this early stage, the Court
cannot find that the force employed was objectively reasonable as a matter of law. Thus,
Defendants’ motion to dismiss the excessive force claims is DENIED.

23

4. Qualified Immunity
“The doctrine of qualified immunity protects government officials ‘from liability for civil
damages insofar as their conduct does not violate clearly established statutory or constitutional
rights of which a reasonable person would have known.’” Pearson v. Callahan, 555 U.S. 223, 231
(2009) (quoting Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982)). “To be clearly established, a
right must be sufficiently clear ‘that every reasonable official would have understood that what he
is doing violates that right.’” Reichle v. Howards, 566 U.S. 658, 664 (2012) (quoting Ashcroft v.
al-Kidd, 563 U.S. 731, 741 (2011) (internal quotation marks and alterations omitted)). “[A]s a
general rule, ‘the defense of qualified immunity cannot support the grant of a Rule 12(b)(6)
motion.’” Chamberlain, 960 F.3d at 110 (quoting Green v. Maraio, 722 F.2d 1013, 1018 (2d Cir.
1983)). “Not only must the facts supporting the defense appear on the face of the complaint, but,
as with all Rule 12(b)(6) motions, the motion may be granted only where it appears that the alleged
facts, if true, plausibly state a claim that would entitle him to relief.” Id. (quotation omitted).
“Thus, a qualified immunity defense presented on a Rule 12(b)(6) motion ‘faces a formidable
hurdle and is usually not successful.’” Id. at 111 (quoting Field Day, LLC v. County of Suffolk,
463 F.3d 167, 191–92 (2d Cir. 2006)).
Plaintiffs have met their burden to overcome Defendants’ qualified immunity defense at
this early stage. The law is clearly established that reliance on a 911 call alone is insufficient to
establish probable cause for seizures, see Kerman, 261 F.3d at 235–36, and exigent circumstances,
see Chamberlain, 960 F.3d at 111, and that officers may not use of force beyond what is necessary
during arrest, see id. at 113. At this stage, drawing all inferences in Plaintiffs’ favor, Plaintiffs
have sufficiently pled that Defendants violated these rights by unlawfully entering Plaintiffs’
homes and seizing Plaintiffs without probable cause and by using excessive force in the process.

24

B. New York State Constitution
Individual Plaintiffs also sufficiently allege violations of the New York State Constitution
under a theory of respondeat superior. Defendants are correct that “no private right of action
exists for violations of the New York State Constitution where the plaintiff has an alternative
remedy under § 1983 for violations of parallel provisions of the U.S. Constitution.” Defs.’ Mem.
32 (quoting Oliver v. City of New York, No. 19 Civ. 11219, 2022 WL 455851, at *15 (S.D.N.Y.
Feb. 15, 2022)). However, “there is a respondeat superior remedy under the New York State
Constitution that is significantly broader than that under Section 1983.” Felix v. City of New York,
408 F. Supp. 3d 304, 312 (S.D.N.Y. 2019) (citing Brown v. State, 674 N.E.2d 1129, 1141 (N.Y.
1996)). Because Plaintiffs allege respondeat superior, their claims survive.
III.

Organizational and Individual Plaintiffs’ Claims
Having addressed the claims of the Individual Plaintiffs, the Court now turns to the claims

brought by the Individual and the Organizational Plaintiffs collectively. These include claims
under the ADA, the Rehabilitation Act, the NYCHRL, and municipal liability pursuant to Monell.
A. Organizational Plaintiffs’ Standing
Before addressing Plaintiffs’ claims on the merits, the Court first addresses Defendants
argument that the Organizational Plaintiffs lack standing to bring this suit. See Defs.’ Mem. 19–
23.

An organization “may have standing in one of two ways: by establishing so-called

‘associational’ or ‘representational’ standing to sue on behalf of its members, or by establishing
that it was directly injured as an organization [‘direct standing’].” Connecticut Parents Union v.
Russell-Tucker, 8 F.4th 167, 172 (2d Cir. 2021). Here, Organizational Plaintiffs assert that they
have both associational and direct standing to maintain their suit. Pls.’ Opp. 23–24. The Court
considers first whether Organizational Plaintiffs have demonstrated direct standing.

25

To succeed on a theory of direct standing, Organizational Plaintiffs have the “burden of
showing: (i) an imminent ‘injury in fact’ to itself as an organization (rather than to its members)
that is ‘distinct and palpable’; (ii) that its injury is ‘fairly traceable’ to enforcement of the
Ordinance; and (iii) that a favorable decision would redress its injuries.” Centro de la Comunidad
Hispana de Locust Valley v. Town of Oyster Bay, 868 F.3d 104, 109 (2d Cir. 2017) (quoting Nnebe
v. Daus, 644 F.3d 147, 156 (2d Cir. 2011)). “It is well settled that where, as here, multiple parties
seek the same relief, ‘the presence of one party with standing is sufficient to satisfy Article III’s
case-or-controversy requirement.’” Id. (quoting Rumsfeld v. Forum of Acad. and Inst. Rights, Inc.,
547 U.S. 47, 52 n.2 (2006)).
The parties primarily dispute whether the organizations have alleged an injury-in-fact. In
this Circuit, “only a ‘perceptible impairment’ of an organization’s activities is necessary for there
to be an ‘injury in fact.’” Nnebe, 644 F.3d at 157 (quoting Ragin v. Harry Macklowe Real Estate
Co., 6 F.3d 898, 905 (2d Cir.1993)). One way an organization may demonstrate a “perceptible
impairment” is by alleging that it “needed to divert resources from other activities to address the
harm caused by a defendant’s conduct.” Hous. Rts. Initiative v. Compass, Inc., No. 21 Civ. 2221,
2023 WL 1993696, at *7 (S.D.N.Y. Feb. 14, 2023). “[W]hen a defendant’s conduct leads an
organization to devote more-than-anticipated resources to address one or more of its goals or
activities . . . and the organization pleads that it has devoted fewer resources to other goals, the
organization has adequately pleaded injury.” Id. at *8; see also Moya v. United States Dep’t of
Homeland Sec., 975 F.3d 120, 130 (2d Cir. 2020) (“[W]here an organization diverts its resources
away from its current activities, it has suffered an injury that has been repeatedly held to be
independently sufficient to confer organizational standing.” (citation omitted)).

26

Here, Organizational Plaintiff Community Access adequately alleges such an injury.
Community Access is organized to “expand opportunities for people living with mental
disabilities.” SAC ¶ 317. As a “key part of its organization mission” Community Access offers
1,315 supportive housing units “where individuals with mental disabilities live side-by-side with
individuals who do not have disabilities.” Id. ¶ 320. Community Access pleads that this program
has been impaired by the City’s inadequate response to mental health calls. It alleges that its staff
are “hesitant to call 911 . . . for fear that members of the NYPD will escalate encounters or forcibly
hospitalize, injure, and otherwise traumatize residents.” Id. ¶ 323. As a result, they allege that
“Community Access must provide additional training to . . . staff to enable them to respond to a
significant portion of these crises themselves.” Id. ¶ 324. Moreover, they allege that when NYPD
has responded, it has resulted in “repeated instances of NYPD misconduct” requiring Community
Access to expend “considerable resources and staff time to investigate” and respond to these
incidents. Id.¶ 328. This diversion of resources from Community Access’s housing program is
sufficient to confer direct organizational standing. These activities are more than a simple
“‘setback to [Community Access’s] abstract social interests’—they represent a real ‘drain on the
organization’s resources’” that may otherwise be used to further other core activities like
developing additional supportive housing. Moya, 975 F.3d at 129 (quoting Havens Realty Corp.
v. Coleman, 455 U.S. 363, 379 (1982)). The Court therefore finds that Community Access has
alleged a perceptible impairment to its activities and has standing to bring this action. 10

10

The Court declines to decide whether the other organizations have standing, as “the presence of
one party with standing is sufficient.” Centro, 868 F.3d at 109. Further, as Community Access
has adequately pled direct organizational standing, the Court need not decide whether the
Organizational Plaintiffs have associational standing.
27

B. ADA, Rehabilitation Act, and NYCHRL
Plaintiffs claim the City discriminates against those with mental disabilities through its use
of the EDP and Involuntary Removal Policy, in violation of Title II of the ADA, § 504 of the
Rehabilitation Act, and the NYCHRL. The Court considers the ADA and Rehabilitation Act
claims together. See Davis v. Shah, 821 F.3d 231, 259 (2d Cir. 2016). The NYCHRL is evaluated
separately under a more liberal standard. Mihalik v. Credit Agricole Cheuvreux N. Am., Inc., 715
F.3d 102, 109 (2d Cir. 2013).
1. ADA and Rehabilitation Act
Plaintiffs’ principal contention is that the City violates the disability discrimination statutes
by failing to respond to mental health calls with mental health practitioners. Pls.’ Opp. 21. They
argue that the police “lack the necessary perspective and mental health expertise” to respond
adequately to mental health crises and, as a result, the mentally disabled are discriminatorily
subjected to “police killings and violence, injury, and other losses of liberty” simply for having a
disability. SAC ¶ 13. To avoid these discriminatory results, Plaintiffs aver that the City must
implement “a new, non-police mental health crisis response program operating independently of
the NYPD.” Id. ¶ 21. Accordingly, the Court must decide whether the disability discrimination
statutes require the City to provide a non-police mental health crisis response program.
Title II of the ADA provides that “no qualified individual with a disability shall, by reason
of such disability, be excluded from participation in or be denied the benefits of the services,
programs, or activities of a public entity, or be subjected to discrimination by any such entity.” 42
U.S.C. § 12132. “To plead a violation of Title II of the ADA, a plaintiff must allege that ‘she is a
qualified individual with a disability; (2) that she was excluded from participation in a public
entity’s services, programs or activities or was otherwise discriminated against by a public entity;

28

and (3) that such exclusion or discrimination was due to her disability.’” Felix v. City of New York,
344 F. Supp. 3d 644, 663 (S.D.N.Y. 2018) (quoting Fulton v. Goord, 591 F.3d 37, 43 (2d Cir.
2009)).
The purpose of the disability discrimination statutes is “to eliminate discrimination on the
basis of disability and to ensure evenhanded treatment between the disabled and the able-bodied.”
Doe v. Pfrommer, 148 F.3d 73, 82 (2d Cir. 1998). In keeping with this purpose, the Court of
Appeals has repeatedly held that a plaintiff may not challenge the adequacy of services provided
exclusively to the disabled under either the ADA or the Rehabilitation Act. For example, in Doe
v. Pfrommer, the plaintiff alleged disability discrimination because he was denied specific
accommodations regarding support services he received for his mental disability. 148 F.3d at 82.
The court noted that “where the handicapping condition is related to the benefit provided, it will
rarely, if ever, be possible to say with certainty that a particular decision was ‘discriminatory.’”
Id. at 83 (quoting United States v. Univ. Hosp., 729 F.2d 144, 157 (2d Cir. 1984)). As such, the
Court held that there is no ADA violation where a plaintiff challenges “the substance of the
services provided” rather than “illegal discrimination against the disabled.” Id. at 84.
More recently, in Tardif v. City of New York, the Court of Appeals held that failure to
provide custodial medical services does not, by itself, “constitute[] a failure to make a reasonable
accommodation ‘by reason of’ an individual’s disability under the ADA.” 991 F.3d 394, 404 (2d
Cir. 2021). In Tardif, the police deprived a pre-arraignment detainee of her epilepsy medication
which caused her to have a seizure. Id. at 399. In rejecting plaintiff’s disability discrimination
claim, the court found that “the fact that her disability was her motivation for seeking out such
services does not suddenly transform her allegations regarding the inadequate medical treatment
into a ‘failure to accommodate’ claim.” Id. at 404. The court held that because “her claim relates

29

solely to whether she received adequate medical treatment in police custody for her disability. . .
[it] is not cognizable under the ADA.” Id; see also Simmons v. Navajo Cnty., 609 F.3d 1011, 1022
(9th Cir. 2010) (“The ADA prohibits discrimination because of disability, not inadequate treatment
for disability.”).
Plaintiffs claim is one that challenges the adequacy of services rather than the denial of
services provided to non-disabled individuals. The program Plaintiffs challenge does not apply to
the non-disabled at all. A program which provides services exclusively to the mentally disabled
cannot discriminate against the mentally disabled within the meaning of the ADA and
Rehabilitation Act. See Disability Advocs., Inc. v. McMahon, 124 F. App’x 674, 676 (2d Cir.
2005) (“[B]ecause New York’s mental health pick-up program extends only to the disabled or
those who would likely be regarded as disabled [plaintiff’s] reasonable accommodation claim fails
. . . .” (citation omitted)); Cushing v. Moore, 970 F.2d 1103, 1109 (2d Cir. 1992) (“[T]he
rehabilitation act does not create a cause of action based on a handicap that is directly related to
providing the very services at issue.”). In other words, Plaintiffs cannot claim they were denied a
service, because the program they challenge provides a service—transport to a hospital for mental
health care—exclusively to the mentally disabled. Plaintiffs’ claim is squarely that the service the
City provides—§ 9.41, as implemented by the EDP and Involuntary Removal Policy—is
inadequate because it is carried out by police and not mental health workers. 11 But as in Tardif,
this “claim relates solely to whether [Plaintiffs] received adequate medical treatment in police

11

Indeed, the SAC is shot through with explicit characterizations of the City’s policies as
“inadequate.” See SAC § V (“The City’s Recent Pilot Program B-HEARD Is Inadequate”); ¶ 324
(alleging organizational injury “[a]s a direct result of the City’s inadequate mental health
response”); ¶ 336 (alleging organization activity to “address[] the NYPD’s inadequate response to
mental health crises”); ¶ 343 (“NAMI-NYC has organized numerous community events
addressing the NYPD’s inadequate response to mental health crises”); ¶ 469 (alleging Defendants
had notice “that the NYPD was inadequate at responding to mental health crises”).
30

custody for [their] disability. . . [which] is not cognizable under the ADA.” 991 F.3d at 404; see
also Maccharulo v. New York State Dep’t of Corr. Servs., No. 08 Civ. 301, 2010 WL 2899751, at
*4 (S.D.N.Y. July 21, 2010) (“A challenge to the adequacy of services provided, as opposed to a
challenge alleging denial of services provided to non-disabled persons, is not a valid claim under
the ADA or the Rehabilitation Act.”).
Plaintiffs resist this characterization of their claim. Plaintiffs emphasize a report issued
earlier this year by the Department of Justice (“DOJ Report”) which investigated the practices of
the Minneapolis Police Department (“MDP”) in the wake of George Floyd’s murder. 12 There, the
DOJ found that the MDP violates the ADA in its response to people with behavioral health
disabilities. DOJ Report 57. The DOJ found that “[m]any behavioral health-related calls for
service do not require a police response, but MPD responds to the majority of those calls, and that
response is often harmful and ineffective. This deprives people with behavioral health disabilities
an equal opportunity to benefit from the City’s emergency response services.” The report goes on
to explain that “[a] person in medical need receives a response from trained Emergency Medical
Services,” while a mentally disabled person gets “an armed police officer with often inaccurate
and ineffective training in behavioral health.” Id. at 58. Plaintiffs insist that they “make precisely
these claims” and urge the Court to defer to DOJ’s judgment on the matter. Pls.’ Opp. 21.

12

United States Department of Justice Civil Rights Division and United States Attorney’s Office
District of Minnesota Civil Division, Investigation of the City of Minneapolis and the Minneapolis
Police
Department
(June
16,
2023),
https://www.justice.gov/opa/pressrelease/file/1587661/download. Defendants argue that the DOJ Report is not a proper subject of
judicial notice because it “is not in the SAC, [and] not incorporated by reference therein.” Defs.’
Reply 8, ECF No. 183. The Court disagrees. See Paskar v. City of New York, 3 F. Supp. 3d 129,
134 (S.D.N.Y. 2014) (Crotty, J.) (“Official government reports and other types of government
records are appropriate for judicial notice.”).
31

The Court is unmoved by DOJ’s analysis. Plaintiffs’ argument, as expressed by the DOJ,
only works if pitched at a level of generality which treats mental and medical health calls as
equivalent “emergency services.” But this is not the law. The State of New York has determined
that those with mental disabilities who pose a substantial risk of danger to themselves or others
require a discrete emergency service, as expressed in § 9.41 and the policies which implement it.
This service applies exclusively to the mentally disabled in order to deliver them mental health
care. See N.Y. Mental Hyg. Law § 9.41 (“Such officer may direct the removal of such person or
remove him or her to any [approved] hospital . . . or any comprehensive psychiatric emergency
program . . . .”). This program may be flawed, as Plaintiffs allege, but that does not render it
discriminatory. If Plaintiffs claimed that they had a medical emergency, like a heart attack, but
were denied an ambulance because of their mental disability, their claim would come closer to
stating actionable discrimination under the ADA. But this is not their claim, which concerns only
the adequacy of the services provided exclusively for the mentally disabled. Courts in this Circuit
are clear that the ADA and Rehabilitation Act cognize no such claim. 13

13

Tardif, 991 F.3d at 405 (no ADA claim where “claim relates solely to whether [plaintiffs]
received adequate medical treatment in police custody for [their] disability”); Pfrommer, 148 F.3d
at 82 (no ADA claim where “plaintiff is in essence challenging the adequacy of his [mental health]
services, not illegal disability discrimination”); Univ. Hosp., 729 F.2d at 156 (“[S]ection 504
prohibits discrimination against a handicapped individual only where the individual’s handicap is
unrelated to, and thus improper to consideration of, the services in question.”); Cushing, 970 F.2d
at 1109 (“[T]he rehabilitation act does not create a cause of action based on a handicap that is
directly related to providing the very services at issue.”); Harrell v. New York State Dep’t of Corr.
& Cmty. Supervision, No. 15 Civ. 7065, 2019 WL 3821229, at *16 (S.D.N.Y. Aug. 14, 2019) (no
ADA violation where plaintiff “merely asserts that his disability was not adequately treated, not
that he was treated inadequately because of his disability”); Bryant v. Steele, 25 F. Supp. 3d 233,
242 (E.D.N.Y. 2014) (“[A]n accusation that an individual was involuntarily committed on the
basis of a mental disability cannot serve as a basis for an ADA or Rehabilitation Act violation for
disability discrimination because such a finding would convert every involuntary commitment
transport into a civil rights violation.” (quotation and alteration omitted)); Maccharulo, 2010 WL
2899751, at *4 (“A challenge to the adequacy of services provided, as opposed to a challenge
(cont’d on next page)
32

However, to the extent Plaintiffs Greene, Sanchez-Esquivel, and Ayu allege that
Defendants failed to provide reasonable accommodations during their mental health crises, these
allegations are sufficient to state a claim on a motion to dismiss. 14 SAC ¶ 426. Although the Court
of Appeals has not addressed whether Title II applies to arrests, five circuit courts along with courts
in this District have held that it does. See Reyes v. Town of Thomaston, No. 18 Civ. 831, 2020 WL
5849529, at *3 n.1 (D. Conn. Sept. 30, 2020) (collecting cases). In contrast to Plaintiffs’ complaint
that they were denied mental health first responders, which involves the adequacy of medical care
provided pursuant to § 9.41, here Plaintiffs claim is that they were excluded from equal access to
police services because of NYPD’s failure to accommodate their disabilities during mental health
arrests. See Butchino v. City of Plattsburg, No. 20 Civ. 796, 2022 WL 137721, at *12 (N.D.N.Y.
Jan. 14, 2022) (“Whereas the failure to provide medical care is a generalized issue that applies
beyond the ambit of disability law, the failure to provide reasonable accommodation to a service
or benefit—a cooling off period for an individual with PTSD—is a quintessential failure to
accommodate disability claim.”). For much the same reasons that each Plaintiff adequately alleged
violations of their constitutional rights during mental health arrests, they have adequately alleged
a failure to accommodate their disabilities, so these individual claims survive. See Lloyd v. City
of New York, 246 F. Supp. 3d 704, 727 (S.D.N.Y. 2017) (“Determining the reasonableness of an
accommodation is a fact-specific question that often must be resolved by a factfinder.”).
(cont’d from previous page)
alleging denial of services provided to non-disabled persons, is not a valid claim under the ADA
or the Rehabilitation Act.”); Atkins v. Cnty. of Orange, 251 F. Supp. 2d 1225, 1232 (S.D.N.Y.
2003) (no ADA claim where plaintiff is “in essence challenging the adequacy of the mental health
services provided . . . not illegal disability discrimination”).
14
Arvio, Collins, and Amitabh’s allegations are insufficient because they do not allege they suffer
from a mental disability. Williams v. Geiger, 447 F. Supp. 3d 68, 79 (S.D.N.Y. 2020) (noting that
a plaintiff may only sustain a reasonable accommodation claim where the defendant is on notice
of an actual, not a perceived, disability).
33

2. NYCHRL
Plaintiffs alternatively seek to reform the City’s mental health crisis response program via
the NYCHRL. See SAC ¶¶ 484–501. “Under NYCHRL, it is unlawful for any owner of a place
or provider of public accommodation to deny an individual full and equal enjoyment, on equal
terms and conditions, of accommodations or services based on an individual’s disability.” Lowell
v. Lyft, Inc., 352 F. Supp. 3d 248, 262–63 (S.D.N.Y. 2018) (citing N.Y. City Admin Code § 8107(4)). “Courts have repeatedly emphasized that the NYCHRL is to be construed as liberally as
reasonably possible in favor of [plaintiffs] to the end that discrimination should not play a role in
decisions.” Bravo v. De Blasio, 167 N.Y.S.3d 708, 718 (N.Y. Sup. Ct. 2022). Although broad,
the NYCHRL is limited by the lawmaking authority of the City. “[W]hen the State specifically
permits the conduct prohibited at the local level,” the state law governs. Ctr. for Indep. of Disabled
v. Metro. Transportation Auth., 125 N.Y.S.3d 697, 704 (N.Y. App. Div. 2d Dep’t 2020).
Here, there is no violation of the NYCHRL because state law expressly permits the use of
police in responding to mental health crises. As provided in the New York Mental Hygiene Law
§ 9.41, police are authorized to “take into custody any person who appears to be mentally ill and
is conducting himself or herself in a manner which is likely to result in serious harm to the person
or others.” The challenged Policies merely implement this state law. For example, the EDP policy
tracks the language of § 9.41 by allowing the NYPD to detain an “emotionally disturbed person,”
which it defines as someone “who appears to be mentally ill or temporarily deranged and is
conducting himself in a manner which a police officer reasonably believes is likely to result in
serious injury to himself or others.” EDP Policy 2. The Involuntary Removal Policy authorizes
“the removal of a person who appears to be mentally ill and displays an inability to meet basic
living needs, even when no recent dangerous act has been observed.” SAC ¶ 135. This policy

34

comports with long-standing case law interpreting § 9.41. See Boggs, 523 N.Y.S.2d at 85 (“A
threat of serious harm to a mentally ill person can result from a refusal or inability to meet her
essential needs for food, clothing or shelter.” (cleaned up)); see also Thomas v. Culberg, 741 F.
Supp. 77, 81 n.1 (S.D.N.Y. 1990) (“New York Mental Hygiene Law does not require that the threat
of substantial harm to oneself or others be evidenced by overt act, attempts or threats.”). As the
Policies are entirely coextensive with New York state law, they are therefore legal under city law.
In sum, save for Greene, Sanchez-Esquivel, and Ayu’s claims for reasonable
accommodation under the ADA and Rehabilitation Act, the Court GRANTS Defendants’ motion
to dismiss Plaintiffs’ claims under the ADA, the Rehabilitation Act, and NYCHRL.
C. Monell Liability
Next, Plaintiffs allege a claim of municipal liability under Monell v. Department of Social
Services of City of New York, 436 U.S. 658 (1978). Under Monell, a municipality is not liable for
the unlawful actions of an employee under a theory of respondeat superior.

Id. at 691.

“Municipalities are, however, liable for ‘their own illegal acts.’” White v. City of New York, 206
F. Supp. 3d 920, 937 (S.D.N.Y. 2016) (quoting Connick v. Thompson, 563 U.S. 51, 60 (2011)).
“The Second Circuit has established a two-pronged test for § 1983 claims brought against
a municipality.” Walker v. City of New York, No. 14 Civ. 808, 2015 WL 4254026, at *5 (S.D.N.Y.
July 14, 2015). “The plaintiff must first prove the existence of a municipal policy or custom in
order to show that the municipality took some action that caused his injuries beyond merely
employing the misbehaving officer.” Vippolis v. Vill. of Haverstraw, 768 F.2d 40, 44 (2d Cir.
1985). “Second, the plaintiff must establish a causal connection . . . between the policy and the
deprivation of his constitutional rights.” Id. A plaintiff need not allege every facet of a prima
facie case at the pleadings stage, “[i]nstead, he must simply allege facts that allow the Court to

35

draw the inference that the constitutional violation was the result of a municipal policy of inaction,
as opposed to ‘isolated misconduct by a single actor.’” Selvon v. The City of New York, No. 13
Civ. 6626, 2015 WL 4728144, at *3 (E.D.N.Y. Aug. 10, 2015) (quoting Amnesty Am. v. Town of
Hartford, 361 F.3d 113, 130 (2d Cir. 2004)).
A plaintiff may allege “an official policy or custom” by showing one of the following:
(1) a formal policy officially endorsed by the municipality; (2) actions taken by
government officials responsible for establishing the municipal policies that caused
the particular deprivation in question; (3) a practice so consistent and widespread
that, although not expressly authorized, constitutes a custom or usage of which a
supervising policy-maker must have been aware; or (4) a failure by policymakers
to provide adequate training or supervision to subordinates to such an extent that it
amounts to deliberate indifference to the rights of those who come into contact with
the municipal employees.
Staboleski v. City of New York, No. 19 Civ. 8834, 2021 WL 796616, at *4 (S.D.N.Y. Mar. 1, 2021).
Here, Plaintiffs allege that the City is liable on three theories: (1) a formal policy by way of the
EDP and Involuntary Removal Policy; (2) a custom of using excessive force against those
identified as EDPs; and (3) deliberate indifference to the rights of people with actual or perceived
mental disabilities. SAC ¶¶ 17, 466–68. All three theories fail.
1. Formal Policy
First, the formal Policies do not violate the Constitution. Both Policies implement New
York Mental Hygiene Law § 9.41, which permits the police to “take into custody any person who
appears to be mentally ill and is conducting himself or herself in a manner which is likely to result
in serious harm to the person or others.” It is well settled—and Plaintiffs do not challenge—that
§ 9.41 is constitutional. See Addington v. Texas, 441 U.S. 418, 426 (1979) (“The state has a
legitimate interest under its parens patriae powers in providing care to its citizens who are unable
because of emotional disorders to care for themselves; the state also has authority under its police
power to protect the community from the dangerous tendencies of some who are mentally ill.”);
36

In re K.L., 1 N.Y.3d 362, 370 (N.Y. 2004) (same). As the challenged Policies merely implement
a constitutional state law, they cannot form the basis of Plaintiffs’ Monell claim.
While Plaintiffs “do not challenge the MHL,” they claim that the Policies run counter to
§ 9.41 because they require the police to seize anyone with a mental disability, regardless of
whether “they pose any risk to themselves or others.” Pls.’ Opp. 29. This is simply not true. The
EDP policy applies, in its entirety, only to “EDPs,” which it defines as “[a] person who appears to
be mentally ill or temporarily deranged and is conducting himself in a manner which a police
officer reasonably believes is likely to result in serious injury to himself or others.” EDP Policy 2
(emphasis added). The EDP Policy therefore tracks the same requirements as the constitutional
state law, which permits the police to detain those who are both mentally ill and reasonably
believed to be a danger to themselves or others.
Regarding the Involuntary Removal Policy, Plaintiffs attempt to distinguish it from § 9.41
by claiming that it “lowers the standard for involuntary detentions” by allowing the police to detain
those who are “unable to meet their ‘basic needs’ . . . without any indication that they had
committed or will commit a dangerous act.” SAC ¶ 132. As stated previously, § 9.41 has long
been interpreted to allow for mental health seizures absent “overt acts, attempts or threats,”
Thomas, 741 F. Supp. at 81 n.1, and where a mentally disabled person is unable to meet his or her
“essential needs for food, clothing or shelter,” Boggs, 523 N.Y.S.2d at 85. As such, the
Involuntary Removal Policy does not “lower the standard” but merely implements § 9.41 as it has
been construed by New York courts for decades. Accordingly, Plaintiffs cannot rely on a formal
policy to sustain their Monell claim.

37

2. De Facto Policy
Plaintiffs alternatively allege that the use of “excessive force” against the mentally disabled
is so widespread that it constitutes a de facto policy or practice. SAC ¶ 467. To plead a de facto
policy “the plaintiff must establish a longstanding practice or custom which constitutes standard
operating procedure.” Gleeson v. Cnty. of Nassau, No. 15 Civ. 648, 2019 WL 4754326, at *15
(E.D.N.Y. Sept. 30, 2019). “[T]he relevant practice [must be] so widespread as to have the force
of law.” Bd. of Cnty. Comm’rs v. Brown, 520 U.S. 397, 404 (1997). Here, to demonstrate a de
facto policy of excessive force, Plaintiffs point to several reports—issued by the Office of the
Inspector General (“OIG Report”) and the Urban Justice Center (“UJC Report”)—documenting
deficiencies in the City’s response to mental health calls and to various incidents where the NYPD
has used lethal force against the mentally disabled. None of these allegations, in totality or in
isolation, indicates a custom of excessive force.
Neither the OIG nor the UJC Report sufficiently supports Plaintiffs’ claim. The UJC
Report was promulgated in 2002, and “[r]esearch reports only support a plaintiff’s Monell claims
‘if those reports are sufficiently connected to the specific facts of the case and are of relatively
recent vintage.’” Breton v. City of New York, 404 F. Supp. 3d 799, 817 (S.D.N.Y. 2019) (quoting
Isaac v. City of New York, 16 Civ. 4729, 2018 WL 5020173, at *17 (E.D.N.Y. Aug. 6, 2018)). As
the allegations in the SAC occurred some twenty years after the issuance of the report, the Court
cannot consider it as evidence of a widespread practice. See id. (dismissing Monell claim where
“the plaintiff was arrested twenty-two years after the issuance of the Mollen Commission Report”).
The OIG Report is similarly unavailing. Judge Nathan considered this very report in Felix
v. City of New York, where the plaintiff similarly alleged Monell liability premised on the NYPD’s
purported de facto policy of using excessive force against those with mental disabilities. 344 F.

38

Supp. 3d at 651. Judge Nathan found that the Report’s discussion of “incidents of brute and
excessive force towards individuals with mental illness” was scant, that the Report found “such
incidents as few in number, and the NYPD’s response to ‘the overwhelming majority’ as occurring
without leading to a discharge of weapons or serious injury.” Id. The Court agrees with and adopts
Judge Nathan’s well-reasoned analysis.
Plaintiffs’ reference to numerous incidents of police violence towards the mentally disabled
also fails to support a finding of a de facto policy or custom. In addition to the claims brought by
the Individual Plaintiffs, the SAC details 24 separate instances since 1984 where officers used
lethal force against a mentally ill person. SAC ¶ 82. These 24 instances over some 40 years are
too few to establish a de facto policy.

As alleged in the SAC, the “NYPD responds to

approximately 200,000 ‘EDP’ calls a year[, but i]n fact, this number is likely much larger.” Id.
¶ 398. Even if all 30 incidents alleged in the SAC occurred in a single year, they would represent
only a fraction of a percent of all EDP calls responded to by the NYPD annually. Moreover,
Plaintiffs do not allege that any of the incidents resulted in findings of liability against the City.
See Buari v. City of New York, 530 F. Supp. 3d 356, 399 (S.D.N.Y. 2021) (finding that reliance on
similar incidents “must . . . result in an adjudication of liability”); Calderon v. City of New York,
138 F. Supp. 3d 593, 613 (S.D.N.Y. 2015) (“None of the [16] lawsuits cited resulted in an
adjudication or admission of liability and the number of suits does not suggest a pervasive illegal
practice.”). Here, because the number of alleged incidents of excessive force is vanishingly small
and because Plaintiffs have failed to show that any resulted in liability against the City, they have
failed to demonstrate a de facto policy.

39

3. Deliberate Indifference
Plaintiffs’ deliberate indifference theory fails for the same reasons. To demonstrate
deliberate indifference adequately, a plaintiff must plead that the City “had notice of a potentially
serious problem of unconstitutional conduct, such that the need for corrective action or supervision
was obvious, and the policymaker’s failure to investigate or rectify the situation evidences
deliberate indifference, rather than mere negligence or bureaucratic inaction.” Amnesty, 361 F.3d
at 128 (quotation omitted). As with the de facto policy claim, the relatively small number of
incidents culled from a nearly forty-year period, none of which is alleged to have resulted in
liability, is not sufficient to put the City on notice that its policies caused constitutional violations.
Without more, the Court cannot find that Defendants were deliberately indifferent to the rights of
the mentally ill. See Pluma v. City of New York, No. 13 Civ. 2017 (LAP), 2015 WL 1623828, at
*12 (S.D.N.Y. Mar. 31, 2015) (“[A] handful of dissimilar incidents occurring over the course of
more than a decade is too sparse to put the City on notice that the NYPD’s training program
produces officers who are likely to commit constitutional violations . . . .”); Boddie v. City of New
York, No. 15 Civ. 4275, 2016 WL 1466555, at *4 (S.D.N.Y. Apr. 13, 2016) (finding that a “handful
of specific incidents” was insufficient to “plead that the City was deliberately indifferent to a
pattern of constitutional violations”).
In sum, Plaintiffs have failed adequately to plead “the existence of a municipal policy or
custom” under either a formal, de facto, or deliberate indifference theory. Vippolis, 768 F.2d at
44. As such, Defendants’ motion to dismiss Plaintiffs’ Monell claim is GRANTED.
D. Class Certification
Defendants urge the Court to dismiss Plaintiffs class allegations because “individualized
issues necessarily predominate over any that the putative class members may have in common.”

40

Defs.’ Mem. 31. The Court finds that these arguments are not properly addressed on a 12(b)(6)
motion to dismiss. See Rojas v. Triborough Bridge & Tunnel Auth., No. 18 Civ. 1433, 2020 WL
1910471, at *3 (S.D.N.Y. Apr. 17, 2020) (“[A] proposed class definition is not properly
adjudicated at the Rule 12(b)(6) stage, and should be raised in connection with any Rule 23 motion
for class certification.”); Petrosino v. Stearn’s Prod., Inc., No. 16 Civ. 7735, 2018 WL 1614349,
at *5 (S.D.N.Y. Mar. 30, 2018) (collecting cases). Accordingly, the Court defers the consideration
of the issue until the class certification stage.
CONCLUSION
For the foregoing reasons, the Court GRANTS the motion to dismiss Plaintiffs’ claims
under the ADA, the Rehabilitation Act, NYCHRL, and Monell liability, save for Greene, SanchezEsquivel, and Ayu’s claims for reasonable accommodation under the ADA and Rehabilitation Act.
The Court further GRANTS dismissal of Ayu’s claims for false arrest arising from his April and
May 2022 arrests, and Collins, Ayu, and Amitabh’s warrantless entry claims, as well as their
corresponding state law claims. As this is the first motion to dismiss, these claims are dismissed
without prejudice. The motion is DENIED as to all other claims. The Court finds this matter
suitable for determination on the papers and without oral argument pursuant to Federal Rule of
Civil Procedure 78(b). Plaintiffs may amend their complaint within 30 days in a manner consistent
with this opinion. The Clerk of the Court is directed to terminate the motions at ECF Nos. 174
and 185.
Dated: New York, New York
March 26
__, 2024

SO ORDERED

_________________________
HONORABLE LORETTA A. PRESKA
United States District Judge
41