Lipford v. The City of Rochester et al

Filing 22

DECISION AND ORDER. Defendants' Motion to Dismiss 12 13 14 is GRANTED IN PART and DENIED IN PART. Based on Plaintiff's consent, his Second, Third, Eighth, Tenth, and Thirteenth causes of action are dismissed. For the reasons stated in this decision, Plaintiff's First, Ninth, Twelfth, and Fourteenth causes of action are dismissed, and Plaintiff's Seventh cause of action is dismissed as to Defendants Lewis, SA, and Rivera. Plaintiff's Fourth, Fifth, Sixth, Seventh (as to Defendant Harris only), and Eleventh causes of action remain a part of this case. SO ORDERED. Signed by Hon. Frank P. Geraci, Jr. on 9/29/2017. (AFM)

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK
DELMAR LIPFORD,
Plaintiff,
Case # 16-CV-6266-FPG
v.
DECISION AND ORDER
THE CITY OF ROCHESTER et al.,
Defendants.

INTRODUCTION
Plaintiff Delmar Lipford (“Plaintiff”) brings this action against the City of Rochester (“the
City”), Rochester Police Department (“RPD”) Officers Alexander C. Baldauf and Ricky J. Harris,
RPD Sergeants Josh Lewis and Henry Rivera, RPD Lieutenant “SA,” and RPD Officers John Does
1-10. ECF No. 1.
Plaintiff filed his Complaint on April 22, 2016, which sets forth the following causes of
action: (1) deprivation of civil rights under 42 U.S.C. § 1983; (2) false arrest under § 1983; (3)
false arrest under New York law; (4) assault under New York law; (5) battery under New York
law; (6) excessive force under § 1983; (7) failure to intervene under § 1983; (8) deprivation of
rights under the New York State Constitution; (9) negligence under New York law; (10) malicious
abuse of process under New York law; (11) respondeat superior under New York law; (12) a
Monell claim under § 1983 alleging that the City was deliberately indifferent to a pattern of RPD
officers using excessive force; (13) a Monell claim under § 1983 alleging that the City was
deliberately indifferent to a pattern of RPD officers making false arrests; and (14) equal protection
under the Fourteenth Amendment.

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On June 7, 2016, Defendants moved to dismiss the First, Second, Third, Seventh, Eighth,
Ninth, Tenth, Twelfth, Thirteenth, and Fourteenth causes of action pursuant to Federal Rule of
Civil Procedure 12(b)(6) for failure to state a claim upon which relief can be granted. ECF Nos.
12-14. On July 6, 2016, Plaintiff responded in opposition to the motion and consented to the
dismissal of his Second, Third, Eighth, Tenth, and Thirteenth causes of action. ECF Nos. 16, 17.
Thus, those claims are hereby DISMISSED and the Court will analyze only Plaintiff’s First,
Seventh, Ninth, Twelfth, and Fourteenth causes of action below. For the reasons that follow,
Defendants’ motion is GRANTED IN PART and DENIED IN PART.
BACKGROUND 1
On April 20, 2015 at approximately 10:30 p.m., Plaintiff was stopped in his vehicle at a
red light at an intersection in Rochester, New York. ECF No. 1 at ¶¶ 2, 32-33. While he was
stopped at the light, an individual in the vehicle next to his threw something out of the window.
Id. at ¶ 34. Plaintiff exited his vehicle to speak with the occupants in the neighboring vehicle, and
he alleges “upon information and belief” that the traffic light was red the entire time. Id. at ¶¶ 35,
37. As he was returning to his vehicle, Plaintiff alleges that Defendant Baldauf approached him
in “a very aggressive manner” and told him to “get on the fucking curb.” Id. at ¶¶ 38, 40. As
Plaintiff was walking toward the curb, Defendant Baldauf allegedly shoved him in the back twice.
Id. at ¶¶ 42-43. Thereafter, Defendant Baldauf allegedly shoved Plaintiff in the chest, punched
him in the face, and drew his taser but did not shoot it because an unknown female witness
announced that she was videotaping them. Id. at ¶¶ 45-48. Plaintiff endured “bruising and
swelling” as a result of this incident. Id. at ¶ 61.

1

The following allegations are taken from Plaintiff’s Complaint (ECF No. 1) and are accepted as true for the
purpose of evaluating Defendants’ Motion to Dismiss.

2

Defendant Baldauf then ordered Defendant Harris to handcuff Plaintiff. Id. at ¶ 56.
Thereafter, Defendant Lewis arrived at the scene. Id. at ¶ 62. Defendant Baldauf told Defendant
Lewis that he was arresting Plaintiff because Plaintiff assaulted him. Id. at ¶ 63. Plaintiff explained
to Defendant Lewis that he did not assault Defendant Baldauf, and he contends that, because
Defendant Baldauf was not visibly injured, it should have been apparent to Defendant Lewis that
Plaintiff did not assault Defendant Baldauf. Id. at ¶¶ 64-66. Plaintiff also asserts that Defendant
Lewis should have known that Defendant Baldauf was “fabricating allegations against Plaintiff”
because he “has a long history of using excessive force against individuals in the City of Rochester
and fabricating allegations of criminal conduct against those individuals in an attempt to justify
his use of excessive force.” Id. at ¶ 67.
Plaintiff was transported to the Monroe County Jail and was detained until the next
morning when he posted bond and was released from custody. Id. at ¶¶ 72-73. He was charged
with one count each of disorderly conduct and harassment. Id. at ¶ 74. Plaintiff alleges that
Defendants Rivera and “SA” reviewed and approved his arrest paperwork and that “[i]t would
have been apparent to any reasonable supervising police officer reviewing the paperwork prepared
by Defendant Baldauf that Plaintiff did not assault Defendant Baldauf, or commit any crime or
violation.” Id. at ¶¶ 77-82. The charges against Plaintiff were dropped on June 9, 2015. Id. at ¶
84.
Plaintiff alleges that Defendant Baldauf subjected him to excessive force because the City
and RPD have a “widespread and routine utilization of excessive force and effectuating arrests.”
Id. at ¶ 88. He also alleges that the City is “deliberately indifferent to the widespread and routine
practice of RPD officers utilizing excessive force in effectuating arrests.” Id. at ¶ 89. Plaintiff
asserts that the City “has not implemented any curative training, oversight measures or policies

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designed or intended to curtail the widespread and routine practice of RPD officers utilizing
excessive force in effectuating arrests.” Id. at ¶ 91.
LEGAL STANDARD
Federal Rule of Civil Procedure 12(b)(6) provides that a party may move to dismiss a
complaint for “failure to state a claim upon which relief can be granted.” Fed. R. Civ. P. 12(b)(6).
In reviewing a Rule 12(b)(6) motion to dismiss, a court “must accept as true all of the factual
allegations contained in the complaint,” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 572 (2007),
and “draw all reasonable inferences in Plaintiff’s favor.” Faber v. Metro. Life Ins. Co., 648 F.3d
98, 104 (2d Cir. 2011). To survive a motion to dismiss, a complaint must contain sufficient factual
matter, accepted as true, to “state a claim to relief that is plausible on its face.” Twombly, 550 U.S.
at 570. “A claim has facial plausibility when the plaintiff pleads factual content that allows the
court to draw the reasonable inference that the defendant is liable for the misconduct alleged.”
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). The application of this standard is “a context-specific
task that requires the reviewing court to draw on its judicial experience and common sense.” Id.
at 679.
When deciding a Rule 12(b)(6) motion, a court ordinarily may not rely on matters outside
the complaint unless it treats the motion as one for summary judgment under Rule 56 and gives
the parties a reasonable opportunity to present relevant evidence. Fed. R. Civ. P. 12(d). However,
“the complaint is deemed to include any written instrument attached to it as an exhibit or any
statements or documents incorporated in it by reference.

Even where a document is not

incorporated by reference, the court may nevertheless consider it where the complaint relies
heavily upon its terms and effect, which renders the document ‘integral’ to the complaint.”
Chambers v. Time Warner, Inc., 282 F.3d 147, 152-53 (2d Cir. 2002) (quotation marks and

4

citations omitted). With respect to documents that are deemed “integral” to the complaint, “it must
be clear on the record that no dispute exists regarding the authenticity or accuracy of the document”
and that “there exist no material disputed issues of fact regarding the relevance of the document.”
Faulkner v. Beer, 463 F.3d 130, 134 (2d Cir. 2006). Furthermore, “[w]here plaintiff has actual
notice of all the information in the movant’s papers and has relied upon these documents in framing
the complaint the necessity of translating a Rule 12(b)(6) motion into one under Rule 56 is largely
dissipated.” Chambers, 282 F.3d at 153 (quoting Cortec Indus., Inc. v. Sum Holding L.P., 949
F.2d 42, 48 (2d Cir. 1991)).
Here, Defendants attached the following documents to their motion to dismiss: Plaintiff’s
Notice of Claim to the City of Rochester dated July 17, 2015 and the transcript of a January 7,
2016 proceeding before Magistrate Judge Marian W. Payson in the matter Benny T. Warr et al. v.
Anthony R. Liberatore et al. (13-CV-6508-EAW-MWP (W.D.N.Y.) (ECF No. 74)). Plaintiff’s
opposition papers include a copy of the RPD’s Subject Resistance Report (“SRR”) from the April
20, 2015 incident, which Defendant Baldauf authored and Defendants Rivera and “SA” reviewed.
ECF No. 16-1.
Plaintiff asserts that Defendants improperly relied on his Notice of Claim. ECF No. 20, at
1. Plaintiff argues that his Complaint only referenced the Notice of Claim by including the
requisite jurisdictional allegations (see ECF No. 1 at ¶¶ 28-29), and that he did not address the
Notice of Claim in his opposition papers “because he voluntarily dismissed his false arrest claims,
which were the only claims Defendant’s motion papers contradicted” with material related to the
Notice of Claim. ECF No. 20 at 3. Defendants argue that the Court may consider the Notice of
Claim because Plaintiff had notice of it and it is integral to the Complaint. ECF No. 21 at 2-3.

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Here, Plaintiff refers to the Notice of Claim in his Complaint and, under the principles
discussed above, the Court may properly consider it in deciding Defendants’ Motion to Dismiss.
ECF No. 1 at ¶¶ 28-29; see, e.g., Powell v. Dep’t of Educ. of City of New York, No. 14 CV
2363(PKC), 2015 WL 5772211, at *1 (E.D.N.Y. Sept. 30, 2015) (considering the plaintiff’s notice
of claim because it was “incorporated by reference in the Amended Complaint”). “The notice of
claim is a precondition to bringing a tort claim against the City, and thus it is an integral part of
the Complaint.” Hazan v. City of New York, No. 98 Civ. 1716(LAP), 1999 WL 493352, at *6
(S.D.N.Y. July 12, 1999). Additionally, and perhaps more importantly, Plaintiff cannot be
surprised by the contents of the Notice of Claim because he served it on the City on or about July
17, 2015. See Oblio v. City Univ. of City of New York, No. CV-01-5118 (DGT), 2003 WL
1809471, at *4 (E.D.N.Y. Apr. 7, 2003) (“Indeed, the Second Circuit has indicated that notice to
the pleader is the critical element in determining whether extrinsic documents may properly be
considered on a motion to dismiss.”) (citing Cortec, 949 F.2d at 48). Accordingly, the Court will
review the Notice of Claim in conjunction with its review of Defendants’ Motion to Dismiss.
The Court will also consider the January 7, 2016 Warr transcript because it is incorporated
by reference into Plaintiff’s Complaint, which discusses the Warr matter at length and cites to its
complaint, an August 25, 2015 transcript, an affidavit, and video evidence. ECF No. 1 at ¶¶ 22334.

Similarly, the Court will consider the SRR related to this incident because it is also

incorporated by reference into Plaintiff’s Complaint. ECF No. 1 at ¶¶ 77, 90.
DISCUSSION
I.

First Claim: Deprivation of Civil Rights under § 1983
Defendants argue that Plaintiff’s first cause of action should be dismissed because it is a

“catch all” claim that fails to put Defendants on notice of specific actions that allegedly injured

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Plaintiff. ECF No. 14, at 5. Interestingly, Plaintiff does not argue that this claim should survive.
ECF No. 17.
Section 1983 imposes civil liability upon any person who, under color of state law, subjects
an individual to the deprivation of any rights, privileges, or immunities protected by the
Constitution or laws of the United States. See 42 U.S.C. § 1983; Wimmer v. Suffolk Cnty. Police
Dep’t, 176 F.3d 125, 137 (2d Cir. 1999). Section 1983 is not itself a source of any substantive
rights, but rather is a vehicle by which citizens may seek to vindicate rights conferred elsewhere.
Albright v. Oliver, 510 U.S. 266, 271 (1994). “[T]o state a civil rights claim under § 1983, a
complaint must contain specific allegations of fact which indicate a deprivation of constitutional
rights.” Alfaro Motors, Inc. v. Ward, 814 F.2d 883, 887 (2d Cir. 1987). Allegations that amount
to “nothing more than broad, simple, and conclusory statements are insufficient to state a claim
under § 1983.” Id.
Here, Plaintiff’s first cause of action broadly asserts that all Defendants violated his due
process and free speech rights and his right to be free from seizure and arrest without probable
cause, false criminal charges, excessive force, retaliatory prosecution, and abuse of process. ECF
No. 1 at ¶¶ 95-105. These vague and conclusory statements do not give Defendants “fair notice
of what the . . . claim is and the grounds upon which it rests.” Twombly, 550 U.S. at 555 (citation
omitted); see also Fed. R. Civ. P. 8(a)(2) (“A pleading that states a claim for relief must contain a
short and plain statement of the claim showing that the pleader is entitled to relief[.]”).
Accordingly, Plaintiff’s first cause of action is DISMISSED.
II.

Seventh Claim: Failure to Intervene under § 1983
Plaintiff’s seventh cause of action alleges that Defendants Harris, Lewis, “SA,” and Rivera

failed to intervene on his behalf to prevent the violation of his constitutional rights even though

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they had a realistic opportunity to do so. ECF No. 1 at ¶ 146. Defendants argue that this claim
must be dismissed because Defendants Harris and Lewis arrived at the scene after Defendant
Baldauf allegedly used excessive force against Plaintiff, and Defendants “SA” and Rivera were
not present at all and merely reviewed the arrest paperwork. ECF No. 14 at 11-12. Thus,
Defendants assert that Plaintiff fails to plausibly allege that any of those Defendants had reason to
know that Plaintiff’s constitutional rights were being violated or, if they had known, that they had
a realistic opportunity to intervene to prevent the harm. Id.
Plaintiff maintains that this claim is well-pled as to Defendant Harris because the
Complaint alleges that “Defendant Harris was present throughout the entire interaction between
Defendant Baldauf and Plaintiff, and knew that Plaintiff had not committed a crime or violated the
law in any way,” and “Defendant Harris had the time and access to intervene to stop and/or prevent
the unlawful assault, battery, use of excessive force and false arrest of Plaintiff but chose not to.”
ECF No. 17 at 19-20 (citing ECF No. 1 at ¶¶ 58-59). Plaintiff does not argue that this claim
survives against Defendants Lewis, “SA,” or Rivera. ECF No. 17, at 19-20.
An officer can be liable under § 1983 for his or her failure to intervene in a situation where
excessive force is being used if “(1) the officer had a realistic opportunity to intervene and prevent
the harm; (2) a reasonable person in the officer’s position would know that the victim’s
constitutional rights were being violated; and (3) the officer does not take reasonable steps to
intervene.” Ricciuti v. New York City Transit Auth., 124 F.3d 123, 129 (2d Cir. 1997). Whether
an officer had sufficient time to intervene is ordinarily an issue for the jury to resolve “unless,
considering all the evidence, a reasonable jury could not possibly conclude otherwise.” Anderson
v. Branen, 17 F.3d 552, 557 (2d Cir. 1994). Generally, an officer cannot be liable for failing to
intervene in incidents that happen in a “matter of seconds.” Henry v. Dinelle, No. 9:10-CV-0456

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(GTS/DEP), 2011 WL 5975027, at *4 (N.D.N.Y. Nov. 29, 2011) (citation omitted); Hughes v.
Nemier, No. 12-CV-6024-FPG, 2016 WL 7056540, at *2 (W.D.N.Y. Dec. 5, 2016) (finding that
the defendants did not have an opportunity to intervene where the plaintiff testified that the incident
“happened kind of fast” and lasted only “a few seconds”).
Here, Defendants point out that paragraphs 38 to 55 of the Complaint describe the alleged
physical altercation between Plaintiff and Defendant Baldauf without any mention of Defendant
Harris’s presence. ECF No. 18 at 9. Defendants also argue that Plaintiff’s Notice of Claim “makes
explicit . . . that Officer Harris did not appear on the scene until after any alleged use of force by
Officer Baldauf was complete.” Id. (citing ECF No. 13-2 at 2-3).
Plaintiff’s Complaint specifically alleges, however, that Defendant Harris was present
during the altercation between Defendant Baldauf and Plaintiff and that he had the time and ability
to intervene on Plaintiff’s behalf. ECF No. 1 at ¶¶ 58-59. Plaintiff also alleges that Defendant
Baldauf shoved him three separate times before punching him in the face and drawing his taser.
Id. at ¶¶ 42-43, 45-47. Thus, if Defendant Harris was present for the entire altercation as Plaintiff
alleges, it is plausible that he would have had an opportunity to intervene. Moreover, Plaintiff’s
Notice of Claim does not make it clear that Defendant Harris arrived after the use of force
concluded. The Notice of Claim describes the incident with Defendant Baldauf and then indicates
that Defendant Harris “approached the scene” and then handcuffed and arrested Plaintiff. ECF
No. 13-2 at 2-3. It is plausible that Defendant Harris observed the entire incident from a nearby
area before he “approached the scene,” and that he could have intervened to prevent the alleged
harm.
Plaintiff’s Complaint makes clear that Defendants Lewis, “SA,” and Rivera were not
present for the alleged excessive force incident and were not directly involved in Plaintiff’s arrest.

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Id. at ¶¶ 62-82. Thus, they were not personally involved in any constitutional violation and none
of them had a realistic opportunity to intervene to prevent the harm. Ricciuti, 124 F.3d at 129;
Livingston v. Escrow, No. 08-CV-6576-FPG, 2013 WL 5603870, at *6 (W.D.N.Y. Oct. 11, 2013)
(“Personal involvement is a prerequisite for the assessment of damages in a § 1983 action against
a supervisory official in his individual capacity.”) (citing Farid v. Ellen, 593 F.3d 233, 249 (2d
Cir. 2010)).
Accordingly, Defendants’ Motion to Dismiss the failure to intervene claim is DENIED as
to Defendant Harris and is GRANTED as to Defendants Lewis, “SA,” and Rivera.
III.

Ninth Claim: Negligent Training and Supervision
Plaintiff’s ninth cause of action alleges that the City was “negligent in the hiring and

retention” of Defendant Police Officers under New York law. ECF No. 1 at ¶¶ 157-61. Defendants
argue that this claim must be dismissed because Defendants Baldauf and Harris were acting within
the scope of their employment when the alleged incident occurred. ECF No. 14 at 13. Plaintiff
maintains that this claim is well-pled as to Defendants Baldauf and Harris because he alleges that
“the City became aware or should have become aware of problems with Defendants Baldauf and
Harris that demonstrated they were unfit, that the City failed to take any action such as dismissing
them, placing them on force monitoring, or providing them with additional supervision,” and that
the City’s negligent retention and supervision of Defendants Baldauf and Harris caused his
injuries. ECF No. 17 at 20.
“To maintain a claim against a municipal employer for the negligent hiring, training, and
retention of a tortfeasor under New York law, a plaintiff must show that the employee acted outside
the scope of [his or] her employment.” Velez v. City of New York, 730 F.3d 128, 136-37 (2d Cir.
2013) (quotation marks and citation omitted). “If the employee acted within the scope of [his or]

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her employment, the employer and the employee’s supervisors may be held liable for the
employee’s negligence only under a theory of respondeat superior.” Id. at 137 (citing Karoon v.
N.Y.C. Trans. Auth., 659 N.Y.S.2d 27, 29 (1st Dep’t 1997)). “This is because if the employee was
not negligent, there is no basis for imposing liability on the employer, and if the employee was
negligent, the employer must pay the judgment regardless of the . . . adequacy of the training.” Id.
Here, Plaintiff does not allege that Defendants Baldauf or Harris acted outside the scope of
their employment during the course of events giving rise to his claims. See Zeak v. United States,
No. 11-CV-4253, 2015 WL 246340, at *4 (S.D.N.Y. Jan. 20, 2015) (holding that the plaintiff’s
“negligent hiring and supervision claim fails because [she] cannot show that the alleged
malpractice occurred outside the scope of the [defendants’] employment”). Instead, Plaintiff
repeatedly alleges that Defendants acted “under the color of state law,” “in their capacities as police
officers with all of the actual and/or apparent authority attendant thereto,” and “within the scope
of their employment by the Defendant City and the RPD.” 2 See, e.g., ECF No. 1 at ¶¶ 96, 99, 129,
136-37, 169-70. Accordingly, Plaintiff’s negligent training and supervision claim is DISMISSED.
See Velez, 730 F.3d at 137 (“Plaintiff conceded that the defendants were acting within the scope
of their employment, thus judgment as a matter of law was warranted on the negligent training
claim.”).
IV.

Twelfth Claim: Municipal Liability for Excessive Force under § 1983
Plaintiff alleges that the City was deliberately indifferent to its training and supervision of

police officers, which allowed Defendants to abuse their authority and caused Plaintiff’s injuries
in this case. ECF No. 1 at ¶¶ 173-267. More specifically, Plaintiff asserts that the City and RPD

2

Because it is alleged that Defendants Baldauf and Harris acted within the scope of their employment, the City
may be held liable for their negligence only under a theory of respondeat superior. Plaintiff’s eleventh cause of action,
which Defendants have not moved to dismiss, is a respondeat superior claim under New York law against the City.
ECF No. 1 at ¶¶ 168-172.

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“maintain an unconstitutional policy, practice and custom of RPD officers employing excessive
force in the course of effectuating arrests and during non-arrest interactions with individuals in the
City of Rochester” and “lack any standard governing RPD officers’ use of force.” Id. at ¶¶ 174,
176. Plaintiff alleges that the City has “historically and persistently failed to discipline RPD
officers who engage in misconduct and violate individuals’ civil rights” and “failed to train RPD
officers regarding the constitutional rights of arrestees to be free from excessive force.” Id. at ¶¶
181, 185.
To sustain a claim for relief pursuant to § 1983 against a municipal defendant, a plaintiff
must show (1) the existence of an officially adopted policy or custom and (2) a causal connection
between the custom or policy and the deprivation of a constitutional right. Castilla v. City of New
York, No. 09 Civ. 5446(SHS), 2012 WL 3871517, at *3 (S.D.N.Y. Sept. 6, 2012) (citing Monell
v. Dep’t of Soc. Servs., 436 U.S. 658, 694 (1978) and Walker v. City of New York, 974 F.2d 293,
301 (2d Cir. 1992)). A plaintiff may satisfy the “policy or custom” requirement in several ways,
including by alleging that policymakers failed to adequately train or supervise subordinates to such
an extent that it constituted deliberate indifference to the rights of those who came into contact
with the municipal employees. Brandon v. City of New York, 705 F. Supp. 2d 261, 276-77
(S.D.N.Y. 2010) (citations omitted).
As the Second Circuit has held, “[a] municipality’s culpability for a deprivation of rights
is at its most tenuous where a claim turns on a failure to train.” Connick v. Thompson, 563 U.S.
51, 61 (2011). For municipal liability to attach under Section 1983, “a municipality’s failure to
train its employees in a relevant respect must amount to deliberate indifference to the rights of
persons with whom the [untrained employees] come into contact.” Id. “A pattern of similar
constitutional violations by untrained employees is ordinarily necessary to demonstrate deliberate

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indifference for purposes of failure to train.” Id. at 62 (internal quotation marks and citation
omitted).
To allege deliberate indifference in the context of a failure-to-train claim, a plaintiff must
plead facts giving rise to a plausible inference that (1) the municipality knows “to a moral
certainty” that its employees will confront a given situation; (2) either the situation presents the
employees with a difficult choice of the sort that training will make less difficult, or there is a
history of employees mishandling the situation; and (3) the wrong choice by the employee will
frequently cause a constitutional deprivation. Walker v. City of New York, 974 F.2d 293, 297-98
(2d Cir. 1992).
Plaintiff’s allegations are too general to plausibly state a Monell claim. The Complaint
alleges that “since 2002, at least five (5) RPD Officers have been accused of using excessive force
on multiple occasions in civil rights lawsuits, Notices of Claim, and/or civilian complaints;
however, upon information and belief, none of these officers were ever reprimanded, suspended,
retrained on the use of force, or otherwise disciplined by the Defendant City or the RPD.” Id. at ¶
188. Plaintiff then describes incidents involving RPD officers not associated with this case,
wherein he alleges that because an officer was accused of using excessive force, and because the
officer was not disciplined and/or because the City of Rochester settled the lawsuit, or because the
civilian review board, the professional standards section of the RPD or the police chief exonerated
the accused officer, that these incidents demonstrate a policy or practice of RPD officers using
excessive force, and/or that officers were improperly trained on the use of force.
There are several problems with this argument. First, Plaintiff does not describe the settled
cases with sufficient supporting detail. Plaintiff makes the leap from a settlement in an excessive
force case to essentially arguing that the Defendant officer in that individual case is therefore liable

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of the alleged conduct. While the Court does not discount the possibility of using settled cases to
demonstrate a policy or practice claim, the series of disconnected events here do not support a
plausible claim. Further, Plaintiff’s cause of action for Monell liability is painted with too broad
of a brush. To characterize the policy or practice at issue as using excessive force is too general.
In the Court’s view, the events alleged would have to be sufficiently similar to support an
allegation of a policy or practice. See Pluma v. City of New York, No. 13-cv-2017-LAP, 2015 WL
1623828, at *12 (S.D.N.Y. Mar. 31, 2015) (holding that 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
through their deployment of pepper spray”); see also Marom v. City of New York, No. 15-cv-2017PKC, 2016 WL 916424, at *22 (S.D.N.Y. Mar. 7, 2016) (holding that a study recommending
further investigation of previously alleged incidents of force was insufficient to state a failure-totrain claim).
Further, the fact that Defendants Baldauf and Harris are named as Defendants in a pending
case before Judge Larimer does not change the outcome. See Ivery v. Baldauf, 14-CV-6041-DGL.
That case, which is unresolved and at the summary judgment stage of the litigation, does not
constitute a policy or practice involving these Defendants. True, the Complaint alleges that
Defendants Baldauf and Harris engaged in two incidents of excessive force (this case and the case
before Judge Larimer), and if those allegations are proved, then Defendants Baldauf and Harris
will be held responsible in those actions. However, two incidents of excessive force do not amount
to a policy or practice, and the additional allegations in the Complaint do not suffice to nudge these
allegations into plausible Monell claims. For all of these reasons, Plaintiff’s Complaint fails to
state a claim under Monell and his Twelfth cause of action is therefore DISMISSED.

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V.

Fourteenth Claim: Equal Protection under § 1983
Finally, Defendants argue that Plaintiff’s equal protection claim must be dismissed because

Plaintiff fails to set forth any facts suggesting that Defendants acted with racial animus. ECF No.
14 at 15. Specifically, Defendants contend that it is insufficient that Plaintiff provided statistics
demonstrating that African-Americans were arrested at a greater rate than non-African-Americans
in 2011 and 2012 because Plaintiff does not set forth facts suggesting that the difference in these
rates is attributable to intentional discrimination. Id. Plaintiff maintains that the news articles he
cites in support of his equal protection claim demonstrate that the RPD “abuses” AfricanAmericans. ECF No. 17 at 23.
To state a viable equal protection claim under the Fourteenth Amendment, “a plaintiff
generally must allege either ‘purposeful discrimination . . . directed at an identifiable or suspect
class,’” Barnes v. Fedele, 760 F. Supp. 2d 296, 301 (W.D.N.Y. 2011) (quoting Giano v. Senkowski,
54 F.3d 1050, 1057 (2d Cir. 1995)), or that he or she “has been intentionally treated differently
from others similarly situated, with no rational basis for the difference in treatment.” Id. (citing
Vill. of Willowbrook v. Olech, 528 U.S. 562, 564 (2000)).
Here, Plaintiff merely alleges that he was arrested and subjected to excessive force due to
“a custom or practice of racism of victimization” and that the City “has a pattern and practice of
unlawfully targeting and abusing young black men based on their race.” ECF No. 1 at ¶¶ 305-07.
He does not allege that he was subjected to intentional discrimination, but rather alleges that his
arrest was improper “because the Defendants informed Plaintiff that he was being arrested after it
was already established that Plaintiff was not carrying any weapons or illegal substances, and did
not have any outstanding warrants against him.” Id. at ¶ 307. Plaintiff’s allegations that
Defendants were motivated “by a custom or practice of racism” and “carried out a discriminatory

15

application of such laws” (Id. at ¶¶ 305-08) are conclusory and lacks “factual content that allows
the court to draw the reasonable inference that [D]efendant[s] [are] liable for the misconduct
alleged.” Iqbal, 556 U.S. at 678.
In fact, Plaintiff notes that “[t]o the extent that Defendants are correct that [he] failed to
allege that the Defendants intentionally discriminated against him on the basis of his race, [he]
requests the court permit [him] to address this omission on filing of an amended complaint.” Id.
Plaintiff has not, however, properly moved to amend his Complaint, which requires him to “attach
an unsigned copy of the proposed amended pleading as an exhibit to the motion.” Local R. Civ.
P. 15(a). Accordingly, Plaintiff’s equal protection claim is DISMISSED.
CONCLUSION
Defendants’ Motion to Dismiss (ECF Nos. 12, 13, 14) is GRANTED IN PART and
DENIED IN PART. Based on Plaintiff’s consent (ECF Nos. 16, 17), his Second, Third, Eighth,
Tenth, and Thirteenth causes of action are dismissed. For the reasons stated in this decision,
Plaintiff’s First, Ninth, Twelfth, and Fourteenth causes of action are dismissed, and Plaintiff’s
Seventh cause of action is dismissed as to Defendants Lewis, “SA,” and Rivera. 3 Plaintiff’s
Fourth, Fifth, Sixth, Seventh (as to Defendant Harris only), and Eleventh causes of action remain
a part of this case.
IT IS SO ORDERED.
Dated: September 29, 2017
Rochester, New York
______________________________________
HON. FRANK P. GERACI, JR.
Chief Judge
United States District Court

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The Court declines Defendants’ request that it direct Plaintiff to “file an amended complaint setting forth, in
a ‘short and plain statement,’ only those causes of action which the Court determines to be viable.” ECF No. 14, at 2.
Plaintiff’s Complaint (ECF No. 1) will remain the operative pleading in this case.

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