Greenland v. The Municipality of Westchester County et al

Filing 68

OPINION AND ORDER re: 50 MOTION to Dismiss Plaintiff's Amended Complaint. filed by Edward W. Kelch, Lana Hochheiser, Mary E. Eustace, James Greer, John O'Rourke, Paul Noto, Glenna Lunn, The Municipality of Westchester County. For the reas ons stated above, Defendants' Motion To Dismiss is granted. Plaintiff's Amended Complaint contained virtually all the same fatal flaws as his Complaint. Notwithstanding Plaintiff's pro se status, the Court sees no reason to provide Pla intiff with yet another opportunity to amend. A complaint should be dismissed without prejudice if the pleading, "'liberally read,' suggests that the plaintiff has a claim that []he has inadequately or inartfully pleaded and that []he should therefore be given a chance to reframe. Cuoco v. Moritsugu, 222 F.3d 99, 112 (2d Cir. 2000) (citation and alterations omitted) (quoting Gomez v. USAA Fed. Sav. Bank, 171 F.3d 794, 795 (2d Cir. 1999)). If a complaint, however, has substantive p roblems and "[a] better pleading will not cure [them]," "[s]uch a futile request to replead should be denied." Id. (citing Hunt v. All. N Am. Gov't Income Tr., 159 F.3d 723, 728 (2d Cir. 1998)). Even pro se plaintiffs are not entitled to file an amended complaint if the complaint "contains substantive problems such that an amended pleading would be futile." Lastra v. Barnes & Noble Bookstore, No. 11-CV-2173, 2012 WL 12876, at *9 (S.D.N.Y. Jan. 3, 2012), aff 9;d, 523 F. Appx 32 (2d Cir. 2013). Because the Court finds that further amendment would be futile, Plaintiffs claims are dismissed with prejudice. See Franza v. Stanford, No. 16-CV-7635, 2019 WL 452053, at *8 (S.D.N.Y. Feb. 5, 2019) (dismissing pro se plaintiff's amended pleading with prejudice). The Clerk is respectfully directed to terminate the pending Motion, (Dkt. No. 50), mail a copy of this Opinion & Order to Plaintiff, and close this case. SO ORDERED. (Signed by Judge Kenneth M. Karas on 8/4/2020) (jca) Transmission to Docket Assistant Clerk for processing.

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UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
RONALD C. GREENLAND,
Plaintiff,
No. 18-CV-3157 (KMK)

v.
THE MUNICIPALITY OF WESTCHESTER
COUNTY, et al.,

OPINION & ORDER

Defendants.
Appearances:
Ronald C. Greenland
Attica, NY
Pro se Plaintiff
Loren Zeitler, Esq.
Westchester County Department of Law
White Plains, NY
Counsel for Defendants
KENNETH M. KARAS, United States District Judge:
Ronald C. Greenland (“Plaintiff”), currently incarcerated at Attica Correctional Facility,
brings this pro se Action against the Municipality of Westchester County (the “County”); Lana
Hochheiser (“Hochheiser”); John O’Rourke (“O’Rourke”); Paul Noto (“Noto”); Glenna Lunn
(“Lunn”); Edward W. Kelch (“Kelch”); James Greer (“Greer”); and Mary E. Eustace (“Eustace”)
(collectively, “Defendants”), under 42 U.S.C. §§ 1981, 1983, and 1985; 28 U.S.C §§ 1331 and
1343; and the Civil Rights Act of 1870. (See Am. Compl. 1–2 (Dkt. No. 43).)1 Before the Court
is Defendants’ Motion To Dismiss the Amended Complaint pursuant to Federal Rule of Civil

1

The Court cites to the ECF-stamped page numbers at the upper right-hand corner of
Plaintiff’s Amended Complaint.

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Procedure 12(b)(6) (the “Motion”). (See Not. of Mot. (Dkt. No. 50).) For the reasons stated
herein, the Motion is granted.
I. Background
A. Factual Background
The following facts are drawn from Plaintiff’s Amended Complaint and are taken as true
for resolving the instant Motion.
Similar to the original Complaint, Plaintiff once again alleges that Noto, O’Rourke, and
Hochheiser, all alleged to be state prosecutors, “systematically and clandestinely leaked
information to the press concerning Plaintiff’s DNA profile.” (Am. Compl. 4.) Plaintiff claims
that this act constituted defamation and should also invoke the state-created danger doctrine
because Defendants allegedly “knew the situation they created would . . . defame” Plaintiff’s
character. (Id.) Plaintiff alleges that Noto, a supervisor, had “actual” or “constructive”
knowledge of Hochheiser and O’Rourke’s conduct and that the County also failed to properly
train its employees to “accurately interpret and properly exercise” the Constitution. (Id. at 4–5.)
Based on the foregoing, Plaintiff seeks a declaration that Defendants’ acts constituted
“bad faith prosecution” and that the Court “[a]scertain and decree the amount of damages” that
Plaintiff has suffered. (Id. at 6.) Plaintiff also included a request for the appointment of pro
bono counsel in his Amended Complaint. (Id. at 5.)
B. Procedural Background
The Court previously provided this Action’s procedural history in its September 24, 2019
Opinion & Order granting Defendants’ First Motion To Dismiss (the “2019 Opinion”). (See Op.
& Order (“2019 Op.”) (Dkt. No. 42).) The Court briefly summarizes the proceedings since the
issuance of the 2019 Opinion below.

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On October 28, 2019, Plaintiff filed the Amended Complaint. (See Am. Compl.)
Following the submission of Defendants’ Pre-Motion Letter requesting leave to file the instant
Motion, (Dkt. No. 44), the Court issued a briefing schedule, (Dkt. No. 45). On December 9,
2019, Plaintiff submitted a Letter stating that he would withdraw his Amended Complaint if
Defendants could ensure that any online material about his case on the news and social media
would be erased. (See Dkt. No. 46.) Defendants responded, stating that they did not control any
of the online material to which Plaintiff referred and could not “unpublish or remove” it. (Dkt.
No. 48.)
On December 18, 2019, Defendants submitted their Motion. (See Not. of Mot.; see also
Decl. of Loren Zeitler, Esq. in Supp. of Mot. (“Zeitler Decl.”); Defs.’ Mem. of Law in Supp. of
Mot. (“Defs.’ Mem.”) (Dkt. Nos. 51–52).) On January 15, 2020, Plaintiff submitted a renewed
request for appointment of pro bono counsel. (Dkt. No. 55.) The Court denied it, explaining that
Plaintiff had not shown any material change in the factors that the Court must consider when
evaluating requests for pro bono counsel, which the Court had already addressed in a previous
Order. (See Dkt. No. 56; see also Order (Dkt. No. 23).) Plaintiff filed an Opposition to the
Motion on March 2, 2020. (See Pl.’s Mem. of Law in Opp’n to Mot. (“Pl.’s Mem.”) (Dkt. No.
60).) Defendants filed a Reply on March 19, 2020. (See Defs.’ Reply Mem. of Law in Supp. of
Mot. (“Defs.’ Reply Mem.”) (Dkt. No. 61).) After obtaining leave of the Court, Plaintiff filed a
Sur-Reply on May 22, 2020. (See Pl.’s Reply Mem. of Law in Opp’n to Mot. (“Pl.’s Reply
Mem.”) (Dkt. No. 67).)
II. Discussion
A. Standard of Review
The Supreme Court has held that, while a complaint “does not need detailed factual
allegations” to survive a motion to dismiss, “a plaintiff’s obligation to provide the grounds of his
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entitlement to relief requires more than labels and conclusions, and a formulaic recitation of the
elements of a cause of action will not do.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007)
(citations, alterations, and quotation marks omitted). Indeed, Rule 8 of the Federal Rules of Civil
Procedure “demands more than an unadorned, the-defendant-unlawfully-harmed-me accusation.”
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). “Nor does a complaint suffice if it tenders naked
assertions devoid of further factual enhancement.” Id. (alteration and quotation marks omitted).
Rather, a complaint’s “[f]actual allegations must be enough to raise a right to relief above the
speculative level.” Twombly, 550 U.S. at 555. Although “once a claim has been stated
adequately, it may be supported by showing any set of facts consistent with the allegations in the
complaint,” id. at 563, and a plaintiff need allege “only enough facts to state a claim to relief that
is plausible on its face,” id. at 570, if a plaintiff has not “nudged [his or her] claim[] across the
line from conceivable to plausible, the[] complaint must be dismissed,” id.; see also Iqbal, 556
U.S. at 679 (“Determining whether a complaint states a plausible claim for relief will . . . be a
context-specific task that requires the reviewing court to draw on its judicial experience and
common sense. But where the well-pleaded facts do not permit the court to infer more than the
mere possibility of misconduct, the complaint has alleged—but it has not ‘show[n]’—‘that the
pleader is entitled to relief.’” (citation omitted) (second alteration in original) (quoting Fed. R.
Civ. P. 8(a)(2))); id. at 678–79 (“Rule 8 marks a notable and generous departure from the
hypertechnical, code-pleading regime of a prior era, but it does not unlock the doors of discovery
for a plaintiff armed with nothing more than conclusions.”).
In considering a motion to dismiss, the Court “must accept as true all of the factual
allegations contained in the complaint.” Erickson v. Pardus, 551 U.S. 89, 94 (2007) (per
curiam); see also Nielsen v. Rabin, 746 F.3d 58, 62 (2d Cir. 2014) (“In addressing the sufficiency

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of a complaint we accept as true all factual allegations . . . . ” (quotation marks omitted)).
Further, “[f]or the purpose of resolving [a] motion to dismiss, the Court . . . draw[s] all
reasonable inferences in favor of the plaintiff.” Daniel v. T & M Prot. Res., Inc., 992 F. Supp. 2d
302, 304 n.1 (S.D.N.Y. 2014) (citing Koch v. Christie’s Int’l PLC, 699 F.3d 141, 145 (2d Cir.
2012)). Where, as here, a plaintiff proceeds pro se, the “complaint[] must be construed liberally
and interpreted to raise the strongest arguments that [it] suggest[s].” Sykes v. Bank of Am., 723
F.3d 399, 403 (2d Cir. 2013) (per curiam) (quotation marks omitted). However, “the liberal
treatment afforded to pro se litigants does not exempt a pro se party from compliance with
relevant rules of procedural and substantive law.” Bell v. Jendell, 980 F. Supp. 2d 555, 559
(S.D.N.Y. 2013) (quotation marks omitted); see also Caidor v. Onondaga County, 517 F.3d 601,
605 (2d Cir. 2008) (“[P]ro se litigants generally are required to inform themselves regarding
procedural rules and to comply with them.” (italics and quotation marks omitted)).
Generally, “[i]n adjudicating a Rule 12(b)(6) motion, a district court must confine its
consideration to facts stated on the face of the complaint, in documents appended to the
complaint or incorporated in the complaint by reference, and to matters of which judicial notice
may be taken.” Leonard F. v. Isr. Disc. Bank of New York, 199 F.3d 99, 107 (2d Cir. 1999)
(quotation marks and citation omitted). When a plaintiff proceeds pro se, however, the Court
may consider “materials outside the complaint to the extent that they are consistent with the
allegations in the complaint,” Alsaifullah v. Furco, No. 12-CV-2907, 2013 WL 3972514, at *4
n.3 (S.D.N.Y. Aug. 2, 2013) (quotation marks omitted), including, as relevant here, “documents
that a pro se litigant attaches to his opposition papers,” Agu v. Rhea, No. 09-CV-4732, 2010 WL
5186839, at *4 n.6 (E.D.N.Y. Dec. 15, 2010) (italics omitted).

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B. Analysis
1. Request for Pro Bono Counsel
Plaintiff appears to renew his request to be assigned pro bono counsel. (See Am. Compl.
5–6.) This request has previously been denied without prejudice twice. (See Order; Dkt. No.
56.) The Court denies it once again.
Although there is not a constitutional right to counsel in civil cases, the Court has the
authority to appoint counsel for indigent parties. See 28 U.S.C. § 1915(e)(1). Yet, “[b]road
discretion lies with the district judge in deciding whether to appoint counsel pursuant to this
provision.” Hodge v. Police Officers, 802 F.2d 58, 60 (2d Cir. 1986) (citation omitted). When
analyzing whether appointment of counsel is appropriate, the Court should undertake a two-step
inquiry. See Ferrelli v. River Manor Health Care Ctr., 323 F.3d 196, 203–04 (2d Cir. 2003).
First, the Court “‘should . . . determine whether the indigent’s position seems likely to be of
substance.’” Id. at 203 (quoting Hodge, 802 F.2d at 61–62); see also Johnston v. Maha, 606 F.3d
39, 41 (2d Cir. 2010) (“This Court considers motions for appointment of counsel by asking first
whether the claimant has met a threshold showing of some likelihood of merit.” (citations and
quotation marks omitted)). In other words, the claim must not be so “highly dubious” that the
plaintiff appears to have no chance of success. Hodge, 802 F.2d at 60 (citation and quotation
marks omitted). In making this determination, the Court construes pleadings drafted by pro se
litigants liberally and interprets them to raise the strongest arguments that they suggest. See
Triestman v. Fed. Bureau of Prisons, 470 F.3d 471, 474 (2d Cir. 2006); Sommersett v. City of
New York, 679 F. Supp. 2d 468, 472 (S.D.N.Y. 2010).
If the threshold requirement is met, the Court should proceed to consider other prudential
factors such as Plaintiff’s

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ability to investigate the crucial facts, whether conflicting evidence implicating the
need for cross-examination will be the major proof presented [to the fact finder],
the indigent’s ability to present the case, the complexity of the legal issues[,] and
any special reason . . . why appointment of counsel would be more likely to lead to
a just determination.
Ferrelli, 323 F.3d at 203–04 (alteration omitted) (quoting Hodge, 802 F.2d at 61–62); see also
Garcia v. USICE (Dep’t of Homeland Sec.), 669 F.3d 91, 98–99 (2d Cir. 2011) (listing Hodge
factors).
“Additionally, the Second Circuit has interpreted [28 U.S.C. § 1915(e)(1)] to require that
the plaintiff be unable to obtain counsel ‘before appointment will even be considered.’” Morris
v. Moran, No. 12-CV-7020, 2014 WL 1053658, at *1 (S.D.N.Y. Mar. 14, 2014) (quoting Hodge,
802 F.2d at 61); see also Justice v. Kuhnapfel, 982 F. Supp. 2d 233, 235 (E.D.N.Y. 2013) (“A
plaintiff requesting appointment of counsel must show that she is unable to obtain counsel before
appointment will even be considered.” (citation and quotation marks omitted)); Williams v.
Nicholson, No. 12-CV-8300, 2013 WL 1800215, at *2 (S.D.N.Y. Apr. 22, 2013) (“Where, in a
civil action, an applicant fails to make any effort to engage counsel, appointing counsel for the
applicant is not appropriate and should not even be considered . . . .” (citation omitted)).
As discussed in further detail below, the Court finds Plaintiff’s claims have not met the
threshold of showing some likelihood of merit. Even interpreted liberally, Plaintiff’s pleadings
fail to allege the existence of a constitutional violation. Plaintiff has also failed to demonstrate a
showing of the prudential Hodge factors meriting the assignment of pro bono counsel. Although
Plaintiff is litigating his claims against trained lawyers, a “lack of legal knowledge, without
more, does not provide sufficient basis to appoint counsel.” Tramun v. Ocasio, No. 11-CV-6061,
2012 WL 1142452, at *1 (S.D.N.Y. Apr. 4, 2012); see also West v. Brickman, No. 07-CV-7260,
2008 WL 3303773, at *2 (S.D.N.Y. Aug. 6, 2008) (noting that a “lack of knowledge in civil law”
does not justify a request for counsel (record citation, alterations, and quotation marks omitted)).
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Moreover, Plaintiff’s claims “are not so complex or unique that a person of Plaintiff’s
intelligence would be unable to handle them at this stage.” Mena v. City of New York, No. 12CV-28, 2013 WL 1165554, at *2 (S.D.N.Y. Mar. 19, 2013). Plaintiff’s case is largely based on
the retelling of public events—specifically, allegedly unconstitutional publications—and “do[es]
not appear to require outside investigation” at this stage of the case. Person v. Ercole, No. 08CV-7532, 2009 WL 855758, at *2 (S.D.N.Y. Mar. 26, 2009). Therefore, Plaintiff’s request for
pro bono counsel is denied.
2. Motion To Dismiss
Defendants argue that the Amended Complaint fails to comply with Federal Rule of Civil
Procedure 8(a); that Plaintiff has failed to allege municipal liability for or individual personal
involvement in any constitutional violation; that absolute and qualified immunity apply; and that
Plaintiff otherwise fails to state a claim for conspiracy under § 1983, the state created danger
doctrine, and any state law claim. (See generally Defs.’ Mem.) The Court considers the
arguments as needed.
The only discernible factual allegations in Plaintiff’s Amended Complaint are that Noto,
O’Rourke, and Hochheiser “systematically and clandestinely leaked information to the press
concerning Plaintiff’s DNA profile,” and that Hochheiser and O’Rourke met with Greer, Kelch,
and Eustace “to discuss Plaintiff[’s] DNA profile.” (Am. Compl. 4.) In his Opposition, Plaintiff
adds that Defendants were behind “defamatory” social media posts that were “viewed by
thousands of [p]eople,” many of whom “express[ed] their disdain for Plaintiff.” (Pl.’s Mem. 3.)
Plaintiff also claims that Greer, Kelch, Lunn, and Eustace provided “unauthorized DNA
samples.” (Id. at 5.) Beyond these allegations, Plaintiff’s pleading and Opposition

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Memorandum are replete with conclusory statements regarding the alleged miscarriage of
justice. (See generally Am. Compl.; Pl.’s Mem.)
Plaintiff’s allegations have not materially changed since his original Complaint, and as
this Court has previously determined, even when liberally read, there is no constitutional
violation present within Plaintiff’s allegations, either against the County or any individual
Defendant. There is no constitutional right barring state prosecutors from discussing evidence in
Plaintiff’s case with the press. To the extent Plaintiff seeks to argue that these articles threatened
the fairness of a trial by creating an impartial jury, see Sheppard v. Maxwell, 384 U.S. 333, 362–
63 (1966) (explaining that trial courts should sometimes take “strong measures” to ensure that a
trial is not prejudiced by “[c]ollaboration between counsel and the press”), Plaintiff offers no
facts to support such a claim, such as the timing of the press release or even whether Plaintiff had
a jury trial. Nor did Defendants, alleged to be state prosecutors, police officers, and/or a forensic
specialist employed by the County, commit any constitutional violation by “discuss[ing]
Plaintiff’s DNA profile” with each other. (Am. Compl. 4.)
To the extent Plaintiff alleges that he was denied his Sixth Amendment right to confront
and cross-examine witnesses who testify against criminal defendants, (see Pl.’s Mem. 4–5),
Plaintiff has not articulated any facts that demonstrate when and how Plaintiff was deprived of
this right. The Sixth Amendment right to confront witnesses pertains to “criminal prosecutions”
and not to statements to the media. Soto v. City of New York, No. 04-CV-4559, 2005 WL 66893,
at *5 (S.D.N.Y. Jan. 11, 2005) (citation and quotation marks omitted).
To the extent Plaintiff appears to accuse Defendants of conspiring with the media to
characterize him as a violent offender and illegal immigrant in the Article, (Am. Compl. 4–5),
such allegations do not constitute a cognizable constitutional violation contemplated by 42

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U.S.C. § 1983 or § 1985. See Sadallah v. City of Utica, 383 F.3d 34, 38 (2d Cir. 2004)
(“Defamation . . . is an issue of state law, not of federal constitutional law, and therefore provides
an insufficient basis to maintain a § 1983 action.” (citation omitted)); Ong v. Park Manor
(Middletown Park) Rehab. & Healthcare Ctr., 51 F. Supp. 3d 319, 347 (S.D.N.Y. 2014) (noting
that conspiracy to commit a tort is not an independent cause of action); Cuoco v. U.S. Bureau of
Prisons, No. 98-CV-9009, 2001 WL 167694, at *3 (S.D.N.Y. Feb. 16, 2001) (explaining that
§ 1985 “does not provide any substantive rights” but only “provides a remedy for violation of the
rights it designates,” such as rights articulated by the Constitution or other laws (citation and
quotation marks omitted)).
Moreover, nothing in Plaintiff’s pleading or Opposition suggests that these actions—even
if unconstitutional—were part of an “official policy or custom,” which is an essential element of
a § 1983 claim against a municipality. Wray v. City of New York, 490 F.3d 189, 195 (2d Cir.
2007) (citations and quotation marks omitted). Although Plaintiff writes that the County “is
responsible for properly training . . . staff/employees to accurately interpret and properly exercise
the United States[’] Constitutional laws,” (Am. Compl. 5), such conclusory boilerplate
statements do not plausibly allege municipal liability, see Masciotta v. Clarkstown Cent. Sch.
Dist., 136 F. Supp. 3d 527, 547 (S.D.N.Y. 2015) (concluding that “general allegations” against
a municipal defendant were “conclusory, and therefore must be disregarded” (citation and
quotation marks omitted)); Simms v. City of New York, No. 10-CV-3420, 2011 WL 4543051, at
*3 (E.D.N.Y. Sept. 28, 2011) (dismissing conclusory allegations that did not provide any facts
that would allow the court to infer what municipal policies or practices led to the alleged training
deficiency (citing Iqbal, 556 U.S. at 678–79)), aff’d, 480 F. App’x 627 (2d Cir. 2012); 5 Borough
Pawn, LLC v. City of New York, 640 F. Supp. 2d 268, 300 (S.D.N.Y. 2009) (dismissing municipal

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liability claim where the “plaintiffs fail[ed] to allege any facts showing that there is a [municipal]
policy—unspoken or otherwise—that violates the Federal Constitution”).
Additionally, because the Court finds that no constitutional violation has been plausibly
alleged, it follows that no claim that Defendants conspired to violate Plaintiff’s constitutional
rights may survive. (See Defs.’ Mem. 13–14.) To state a claim for a conspiracy under § 1983,
Plaintiff must allege facts showing: “(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.” McGee v. Dunn,
No. 09-CV-6098, 2015 WL 9077386, at *5 (S.D.N.Y. Dec. 16, 2015) (quoting Pangburn v.
Culbertson, 200 F.3d 65, 72 (2d Cir. 1999)), aff’d, 672 F. App’x 115 (2d Cir. 2017); see
also Ciambriello v. County of Nassau, 292 F.3d 307, 324 (2d Cir. 2002) (noting that where a
plaintiff alleges that a private entity conspired with a state actor, “the complaint must allege facts
demonstrating that the private entity acted in concert with the state actor to commit an
unconstitutional act” and was “a willful participant in joint activity with the State or its agents”
(citations and quotation marks omitted)). “A conspiracy claim fails as a matter of law where
there is no underlying constitutional violation, as is the case here.” Demosthene v. City of New
York, No. 14-CV-816, 2018 WL 10072931, at *8 (E.D.N.Y. July 20, 2018) (citation omitted),
adopted by 2019 WL 3992868 (E.D.N.Y. Aug. 19, 2019), filing appeal, No. 19-3002 (2d Cir.
Sept. 16, 2019); Beckles v. City of New York, No. 08-CV-3687, 2011 WL 722770, at *6 (S.D.N.Y.
Feb. 25, 2011) (same) (ultimately citing Curley v. Village of Suffern, 268 F.3d 65, 72 (2d Cir.
2001)), aff’d, 492 F. App’x 181 (2d Cir. 2012).
Plaintiff’s claims under the state-created danger theory are also not cognizable. (See Am.
Compl. 4.) The state-created danger doctrine applies when “a state actor aids and abets a private

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party in subjecting a citizen to unwarranted physical harm.” Golian v. N.Y.C. Admin. for
Children Servs., 282 F. Supp. 3d 718, 730 (S.D.N.Y. 2017) (citation, emphasis, and quotation
marks omitted). This cause of action requires allegations that a state actor “affirmatively
encouraged third party violence.” Id. at 730–31 (emphasis and quotation marks omitted) (citing
Okin v. Vill. of Cornwall-on-Hudson Police Dep’t, 577 F.3d 415, 429–30 (2d Cir. 2009)). In his
Opposition Memorandum, Plaintiff claims that online publications—purportedly spurred by
Defendants’ actions—resulted in comments expressing “disdain” for Plaintiff. (Pl.’s Mem. 3.)
Negative online comments do not constitute the kind of egregious conduct necessary for statecreated danger claims.
To the extent Plaintiff seeks to bring a state law claim for defamation against Defendants,
it is dismissed because Plaintiff has failed to affirmatively plead that he filed a notice of claim
against Defendant. Under New York law, “as a condition precedent to bringing a claim against a
municipality, a plaintiff must file a notice of claim within 90 days after her claim accrues.”
Russell v. Westchester Cmty. Coll., No. 16-CV-1712, 2017 WL 4326545, at *5 (S.D.N.Y. Sept.
27, 2017) (citing N.Y. Gen. Mun. Law § 50-e(1)(a)); see also N.Y. Gen. Mun. Law § 50k(6) (“No action . . . shall be prosecuted or maintained against the city . . . or an employee . . .
unless notice of claim shall have been made and served upon the city . . . .”); Olsen v. County of
Nassau, No. 05-CV-3623, 2008 WL 4838705, at *1 (E.D.N.Y. Nov. 4, 2008) (“As a ‘condition
precedent’ to commencing a tort action against New York municipalities, or any of their officers,
agents, or employees, New York General Municipal Law § 50-e requires plaintiffs to file a notice
of claim within [90] days after the claim arises.” (citation omitted)). Moreover, “in a federal
court, state notice-of-claim statutes apply to state-law claims.” Hardy v. N.Y.C. Health & Hosps.
Corp., 164 F.3d 789, 793 (2d Cir. 1999) (citations and emphasis omitted). “Federal courts do not

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have jurisdiction to hear complaints from plaintiffs who have failed to comply with the notice of
claim requirement, or to grant permission to file a late notice.” Gibson v. Comm’r of Mental
Health, No. 04-CV-4350, 2006 WL 1234971, at *5 (S.D.N.Y. May 8, 2006) (footnote omitted).
Further, “the burden is on [the p]laintiff to demonstrate compliance with the notice of claim
requirements.” Peritz v. Nassau Cty. Bd. of Coop. Educ. Servs., No. 16-CV-5478, 2019 WL
2410816, at *4 (E.D.N.Y. June 7, 2019) (citations omitted), reconsideration denied, 2019 WL
2743640 (E.D.N.Y. July 1, 2019); see also Naples v. Stefanelli, 972 F. Supp. 2d 373, 390
(E.D.N.Y. 2013) (“To survive a motion to dismiss, a plaintiff must affirmatively plead that a
notice of claim was filed.” (citing, inter alia, N.Y. Gen. Mun. Law § 50-i(1)(b))). “The notice of
claim requirements are strictly construed, and a plaintiff’s ‘failure to comply with the mandatory
New York statutory notice-of-claim requirements generally results in dismissal of his
claims.’” Smith v. City of New York, No. 04-CV-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 affirmatively plead that he filed a notice of claim with respect to any
state law claims, those claims are dismissed. See El v. City of New York, No. 14-CV-9055, 2015
WL 1873099, at *8 (S.D.N.Y. Apr. 23, 2015) (“Absent a showing of such a notice of claim, the
complaint may be dismissed for failure to state a cause of action.” (citation and quotation marks
omitted)); Naples, 972 F. Supp. 2d at 390 (dismissing state law claims against municipality
where “the [a]mended [c]omplaint is void of any allegation that a notice of claim was filed prior
to the commencement of [the] action” (footnotes omitted)).2

2

Because Plaintiff’s claims are dismissed on their merits, the Court does not address
Defendants’ qualified or absolute immunity arguments. (See Defs.’ Mem. 11–13.)

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III. Conclusion
For the reasons stated above, Defendants’ Motion To Dismiss is granted. Plaintiff’s
Amended Complaint contained virtually all the same fatal flaws as his Complaint.
Notwithstanding Plaintiff’s pro se status, the Court sees no reason to provide Plaintiff with yet
another opportunity to amend. A complaint should be dismissed without prejudice if the
pleading, “‘liberally read,’ suggests that the plaintiff has a claim that []he has inadequately or
inartfully pleaded and that []he should therefore be given a chance to reframe.” Cuoco v.
Moritsugu, 222 F.3d 99, 112 (2d Cir. 2000) (citation and alterations omitted) (quoting Gomez v.
USAA Fed. Sav. Bank, 171 F.3d 794, 795 (2d Cir. 1999)). If a complaint, however, has
substantive problems and “[a] better pleading will not cure [them],” “[s]uch a futile request to
replead should be denied.” Id. (citing Hunt v. All. N Am. Gov’t Income Tr., 159 F.3d 723, 728 (2d
Cir. 1998)). Even pro se plaintiffs are not entitled to file an amended complaint if the complaint
“contains substantive problems such that an amended pleading would be futile.” Lastra v.
Barnes & Noble Bookstore, No. 11-CV-2173, 2012 WL 12876, at *9 (S.D.N.Y. Jan. 3,
2012), aff’d, 523 F. App’x 32 (2d Cir. 2013). Because the Court finds that further amendment
would be futile, Plaintiff’s claims are dismissed with prejudice. See Franza v. Stanford, No. 16CV-7635, 2019 WL 452053, at *8 (S.D.N.Y. Feb. 5, 2019) (dismissing pro se plaintiff’s amended
pleading with prejudice).

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Case 7:18-cv-03157-KMK Document 68 Filed 08/04/20 Page 15 of 15

The Clerk is respectfully directed to terminate the pending Motion, (Dkt. No. 50), mail a
copy of this Opinion & Order to Plaintiff, and close this case.
SO ORDERED.
Dated:

August 4, 2020
White Plains, New York
KENNETH M. KARAS
United States District Judge

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