Ali v. Caban et al

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
X
DAWUD ALI,
Plaintiff,
v.
EDWARD A. CABAN, ROBERT LUCKMANN,
DARNELL SIMON, and TIMOTHY P.
SCHULTZ,
Defendants.
REPORT & RECOMMENDATION
24-cv-05569 (NCM) (LKE)
X
LARA K. ESHKENAZI, United States Magistrate Judge:
Before the Court, on referral from the Honorable Natasha C. Merle, is the motion of
Defendants Edward A. Caban, Robert Luckmann, Darnell Simon, and Timothy P. Schultz
(collectively, “Defendants”), to dismiss pro se Plaintiff Dawud Ali’s Amended Complaint in its
entirety pursuant to Federal Rules of Civil Procedure 12(b)(6) and 8(a).1 For the reasons set forth
below, the Court respectfully recommends that the motion be granted, and that Plaintiff’s
Amended Complaint be dismissed with prejudice and without leave to amend.
I. 	BACKGROUND
A. 	Procedural Background
On August 9, 2024, pro se Plaintiff Dawud Ali (“Plaintiff” or “Ali”) filed a Complaint
against former New York City Police Department (“NYPD”) Commissioner Edward A. Caban,
Sergeant Robert Luckmann, Captain Darnell Simon, and Captain Timothy P. Schultz, in their
1 Defendants’ motion also refers to Federal Rule of Civil Procedure 12(f) as grounds for dismissal, but other than
citing to the Rule, does not contain any substantive arguments supporting dismissal under Rule 12(f). (See generally
Defs. Mem. L., ECF 38.) Accordingly, this Court construes Defendants’ motion as moving for dismissal pursuant to
Federal Rules of Civil Procedure 8(a) and 12(b)(6).
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individual capacities, and the City of New York (the “City”), alleging, inter alia, constitutional
rights violations under the First and Fourteenth Amendments, intentional infliction of emotional
distress, civil rights violations, see 42 U.S.C. § 1983, and negligence. (See Compl., ECF 1.)
On November 19, 2024, in a joint letter, Defendants and the City requested a pre-motion
conference in anticipation of filing a motion to dismiss. (ECF 17.) Defendants and the City argued
that the Complaint should be dismissed because Plaintiff failed to: (1) specify causes of action and
the factual bases for his claims; (2) provide specific allegations of the individual Defendants’
personal involvement in any constitutional violations; and (3) serve the City with notice of a tort
claim. (Id. at 2-3.) Judge Merle denied the request and sua sponte granted Plaintiff leave to amend
the Complaint, with leave to renew the motion to dismiss if Plaintiff failed to amend. (Dec. 23,
2024, Order.)
This Court held a status conference on January 27, 2025, and “strongly encouraged
[Plaintiff] to seek assistance from the Federal Pro Se Legal Assistance Project.” (Jan. 28, 2025,
Min. Entry.) Specifically, this Court explained at the conference that Plaintiff was granted leave to
amend because the Complaint was “very general,” with “not a lot of specifics about what
happened.” (Jan. 27, 2025, Tr. 3:23- 4:2, ECF 43.) This Court further explained that more details
“need[ed] to be in the complaint” so that the Court could “properly evaluate whether [Plaintiff]
sufficiently stated [his] claims, because [Defendants] had said they’re going to move to dismiss
them.” (Id. at 4:14-18.) This Court suggested that Plaintiff “add more detail” to his Complaint and
offered questions for Plaintiff to consider. (Id. at 4:7-11 (“Where did it happen? How did it happen?
What did they say to you? What did you say to them? Did they put their hands on you? Did they
actually search you? How did they search you? Did they find anything?”).) When asked if he
understood, Plaintiff responded affirmatively. (Id. at 4:23-25). Further, when Plaintiff inquired
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about requesting third 	party discovery from the District Attorney’s 	(“D.A.”) Office, the
undersigned explained that Plaintiff did not need discovery in order to amend the Complaint:
THE COURT: . . . So I don’t know what you’ve requested from the
D.A.’s office and I don’t know what they’re able to produce and
what they can’t and all that. But that is different from your
complaint.
MR. ALI: Right.
THE COURT: So you’re in a position, right, where you know what
happened. You were there. I wasn’t, they weren’t, right? So you can
describe in your complaint, from your perspective and your memory
of what happened. That’s all you need to do in the complaint, okay?
MR. ALI: Right.
THE COURT: You don’t need information really from the D.A.’s
office for that.
MR. ALI: Okay.
THE COURT: And you’re also able to describe from your position
what happened to the criminal charges.
MR. ALI: Okay.
THE COURT: If you were arrested and then those charges were
dismissed. That’s all stuff that you can say.
MR. ALI: Okay.
THE COURT: In order to draft your complaint you don’t need that
– again, discovery will be separate. And if you make it past the
motion to dismiss, if the judge doesn’t dismiss it, then you would go
into discovery.
MR. ALI: Okay.
THE COURT: But whatever you know about the arrest and what
you know about what happened that day that’s related to your claim
you can put in your complaint, okay?
MR. ALI: Yes, ma’am.
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(Id. at 6:8-7:12.)
Subsequently, on March 27, 2025, after the Court granted two extensions of time, Plaintiff
filed the operative Amended Complaint, in which the City is not a named party. (Am. Compl., ECF
26.) On June 23, 2025, Defendants filed a motion to dismiss pursuant to Federal Rules of Civil
Procedure 12(b)(6) and 8(a). (ECF 36-38, 41.) Plaintiff filed a response to the motion to dismiss
on June 30, 2025. (ECF 39.) The Honorable Natasha C. Merle referred the motion to the
undersigned for a report and recommendation. (May 23, 2025, Order; June 23, 2025, Order.)
B. 	Facts
The facts are drawn from Plaintiff’s Amended Complaint. As required on a motion to
dismiss, the Court accepts as true all well-pled allegations of the Amended Complaint and draws
all reasonable inferences in favor of Plaintiff as the non-moving party.
In the twenty-three page Amended Complaint, including Plaintiff’s “General Affidavit”,
Plaintiff broadly alleges that Defendants are part of a “[c]riminal [e]nterprise” operating from the
101st police precinct in Queens. (Am. Compl. ¶ 23.) Plaintiff generally alleges that as part of this
enterprise, Defendants engaged in criminal activities such as racketeering, drug trafficking, fraud,
money laundering, counterfeiting, embezzlement, extortion, gambling, arson, witness tampering,
kidnapping, and murder. (Id. ¶¶ 23-34.) According to Plaintiff, Defendants have denied and
prohibited Plaintiff from exercising his First and Fourteenth Amendment rights. (Id. ¶¶ 22, 38.)
The Amended Complaint alleges that Defendants committed or failed to prevent acts of
discrimination and racial profiling, causing emotional distress. (Id. ¶¶ 42, 45, 50.)
In his twenty-one paragraph General Affidavit, Plaintiff also lists various incidents in
which Plaintiff had encounters with unidentified officers from the 101st police precinct. (Id., Pl.
Aff. ¶¶ 2, 9-10, 14, 17, 19-20, ECF 26-1.) Plaintiff states that he lost employment due to the officers
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at the 101st precinct. (Id. ¶ 1.) Plaintiff further alleges that in 1985, an unnamed officer from the
101st precinct pushed Plaintiff, pointed his gun at him, and arrested him, although the case was
subsequently dismissed. (Id. ¶¶ 2-3.) Plaintiff describes several general incidents where officers
from the 101st precinct refused to arrest criminals who assaulted or robbed him, and sometimes,
he was unlawfully arrested instead. (Id. ¶¶ 4-5, 7-10; 19-20.) He asserts that officers from the 101st
precinct have paid criminals to steal his property, and that he has been unlawfully arrested and
assaulted while in custody. (Id. ¶¶ 11-18.) Finally, Plaintiff states that Defendants conspired to
discriminate, harass, and racially profile him because he continues to expose the “Civil Rico
Activities” of the officers at “[t]he corrupt 101[st] precinct.” (Id. ¶ 6.)
II. 	LEGAL STANDARDS
A. 	Federal Rule of Civil Procedure 8(a)
Rule 8(a)(2) requires that a complaint contain “a short and plain statement of the claim
showing that the pleader is entitled to relief.” Fed. R. Civ. P. 8(a)(2). The Rule “does not
countenance pleadings that are conclusory; it requires factual allegations that are sufficient to ‘give
the defendant fair notice of what the … claim is and the grounds upon which it rests.’” Anderson
News, L.L.C. v. Am. Media, Inc., 680 F.3d 162, 182 (2d Cir. 2012) (quoting Bell Atl. Corp. v.
Twombly, 550 U.S. 544, 555 (2007)). “[T]he principal function of pleadings under the Federal
Rules is to give the adverse party fair notice of the claim asserted so as to enable him to answer
and prepare for trial.” Salahuddin v. Cuomo, 861 F.2d 40, 42 (2d Cir. 1988).
When a complaint fails to comply with these requirements, a district court may dismiss it.
“Dismissal, however, is usually reserved for those cases in which the complaint is so confused,
ambiguous, vague, or otherwise unintelligible that its true substance, if any, is well disguised.” Id.
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Further, if the court dismisses the complaint under Rule 8, “it should generally give the plaintiff
leave to amend.” Simmons v. Abruzzo, 49 F.3d 83, 87 (2d Cir. 1995).
B. 	Federal Rule of Civil Procedure 12(b)(6)
A court analyzing a motion to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6)
must “accept as true all allegations in the complaint and draw all reasonable inferences in favor of
the non-moving party.” Vietnam Ass’n for Victims of Agent Orange v. Dow Chem. Co., 517 F.3d
104, 115 (2d Cir. 2008) (internal quotation and citation omitted). “[A] complaint must contain
sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face’” in
order to survive a motion to dismiss. Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl.
Corp., 550 U.S. at 570). A plausible claim contains “factual content that allows the court to draw
the reasonable inference that the defendant is liable for the misconduct alleged.” Id. In determining
whether a plaintiff has stated a plausible claim for relief, “conclusory allegations or legal
conclusions masquerading as factual conclusions will not suffice to prevent a motion to dismiss.”
Nwaokocha v. Sadowski, 369 F. Supp. 2d 362, 366 (E.D.N.Y. 2005) (quoting Smith v. Loc. 819
I.B.T. Pension Plan, 291 F.3d 236, 240 (2d Cir. 2002)).
Courts are obliged to construe complaints filed by pro se plaintiffs liberally. Hughes v.
Rowe, 449 U.S. 5, 9-10 (1980) (per curiam). Pro se submissions are reviewed with “special
solicitude” and are “interpreted to raise the strongest arguments that they suggest.” Barnes v. City
of New York, 68 F.4th 123, 127 (2d Cir. 2023) (quoting Triestman v. Fed. Bureau of Prisons, 470
F.3d 471, 474-75 (2d Cir. 2006)). “This is particularly so when the pro se plaintiff alleges that [his]
civil rights have been violated.” Sealed Plaintiff v. Sealed Defendant, 537 F.3d 185, 191 (2d Cir.
2008). “Nonetheless, a pro se complaint must state a plausible claim for relief.” Meadows v. United
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Servs., 963 F.3d 240, 243 (2d Cir. 2020) (quoting Hogan v. Fischer, 738 F.3d 509, 515 (2d Cir.
2013)).
A plaintiff’s pro se status “does not exempt a party from compliance with relevant rules of
procedural and substantive law.” Forbes v. State Univ. of New York at Stony Brook, 259 F. Supp.
2d 227, 232 (E.D.N.Y. 2003) (internal quotations and citation omitted). That is, “dismissal of a pro
se complaint is nevertheless appropriate where a plaintiff has clearly failed to meet minimum
pleading requirements.” Temple v. Hudson View Owners Corp., 222 F. Supp. 3d 318, 323 (S.D.N.Y.
2016) (citing Rodriguez v. Weprin, 116 F.3d 62, 65 (2d Cir. 1997)); see Williams v. Richardson,
425 F. Supp. 3d 190, 201 (S.D.N.Y. 2019) (“[T]he duty to liberally construe a plaintiff’s complaint
is not the equivalent of a duty to re-write it.” (internal quotation marks omitted)).
C. 	Interplay Between Rule 12(b)(6) and Rule 8
Rule 12(b)(6) serves two purposes. One is to ensure that “consistent with Rule 8(a), a
complaint includes sufficient factual matter, accepted as true, to state a claim to relief that is
plausible on its face.” Alharbi v. Miller, 368 F. Supp. 3d 527, 560 (E.D.N.Y. 2019), aff’d in part,
dismissed in part, 829 F. App’x 570 (2d Cir. 2020) (citation and internal quotation marks omitted).
“A motion to dismiss for a lack of plausibility argues that the plaintiff has not pled enough facts to
give rise to an inference that he is entitled to relief.” Id. Second, Rule 12(b)(6) “requires even a
well-pled complaint to state a legally cognizable claim for relief.” Id. The Second Circuit thus has
noted the “distinction between the notice requirements of Rule 8(a) and the requirement, under
Rule 12(b)(6), that a plaintiff state a claim upon which relief can be granted.” Wynder v. McMahon,
360 F.3d 73, 80 (2d Cir. 2004). “A complaint could include a wealth of specific and particular
facts, which would otherwise meet the standard for plausibility, but in some instances, no amount
or combination of those facts could ever give rise to a violation of law.” Alharbi, 368 F. Supp. 3d
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at 560. Therefore, “even when a complaint is sufficient to meet Rule 8(a)’s formal notice
requirements, it will nonetheless be dismissed under Rule 12(b)(6) if the conduct alleged does not
give rise to a violation of law.” In re Ditech Holding Corp., No. 19-cv-10412, 2023 WL 6798626,
at *11 (Bankr. S.D.N.Y. Oct. 13, 2023).
III. 	DISCUSSION
Defendants assert several arguments in support of their motion to dismiss. As an initial
matter, Defendants argue that the City of New York should be dismissed as a Defendant because
the Amended Complaint does not name the City as a party. (Defs. Mem. L. at 13.) Next, Defendants
argue that Plaintiff’s claims fall well outside the three-year statute of limitations for claims brought
pursuant to 42 U.S.C. § 1983. (Id. at 12-13.) Defendants also argue that the Amended Complaint
fails to comply with Federal Rule of Civil Procedure 8(a), primarily because the Amended
Complaint does not contain sufficient allegations of the personal involvement of any of the
Defendants in the conduct alleged in the Complaint, or the time, place, and dates of the alleged
conduct. (Id. at 6-10.) To the extent the Amended Complaint does contain dates, Defendants argue
that Plaintiff’s claims are time barred. (Id. at 13.) Finally, Defendants argue that Plaintiff’s state
law claims of intentional infliction of emotional distress must be dismissed because Plaintiff failed
to comply with the procedural requirements of New York General Municipal Law § 50-e. (Id. at
10-12.) The Court addresses each of these arguments in turn.
A. 	Claims Against the City
As a threshold matter, Defendants correctly point out that the City is not a named party in
the Amended Complaint. (See generally Am. Compl.) Plaintiff concedes that the City is not a
defendant in the Amended Complaint. (Pl. Opp. Br., ECF 39 (“New York City is not a defendant
in 	Plaintiff’s 	… Amended 	Complaint.”).) 	The 	Court 	therefore 	respectfully 	recommends
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considering all prior claims against the City abandoned. See, e.g., Spaulding v. N.Y.C. Dep’t of
Educ., No. 12-cv-3041 (KAM) (VMS), 2015 U.S. Dist. LEXIS 126292, at *2 (E.D.N.Y. Sep. 21,
2015) (finding all prior claims against a defendant who was not named in an amended complaint
abandoned “because amended complaints completely replace any previously filed complaints”);
Haddock v. Nationwide Fin. Servs. Inc., 514 F. Supp. 2d 267, 273 (D. Conn. 2007) (“[I]f a party
voluntarily omits a certain claim from an amended complaint that the party raised in the original
complaint, the party is bound by the amended complaint and cannot proceed on the omitted claims
because they are no longer a part of the operative complaint.”).
B. 	Time-barred Section 1983 Claims
Plaintiff brings this action asserting that Defendants violated his rights under the First and
Fourteenth Amendments to the Constitution, and as such, his constitutional claims are construed
as claims brought under 42 U.S.C. § 1983. (Am. Compl. ¶ 38 (stating a first cause of action under
the First and Fourteenth Amendment); ¶ 47 (stating a third cause of action under the same, as well
as 42 U.S.C. § 1983, et seq.).) Section 1983 provides redress for a deprivation of federally
protected rights by persons acting under color of state law. 42 U.S.C. § 1983; Flagg Bros., Inc. v.
Brooks, 436 U.S. 149, 155-57 (1978).
Courts apply the statute of limitations for personal injury actions under state law, and as
Defendants point out, (Defs. Mem. L. at 12-13), in New York, Section 1983 actions are subject to
a three-year statute of limitations, starting from the time “when the plaintiff knows or has reason
to know of the injury which is the basis of his action.” Pearl v. City of Long Beach, 296 F.3d 76,
80 (2d Cir. 2002). The Amended Complaint fails to specify any date range for the alleged conduct.
(See generally Am. Compl.) Plaintiff’s General Affidavit, which the Court construes liberally as
part of the Amended Complaint, alleges various incidents with police officers, none of which
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involved Defendants, occurring in 1985, and 2006 through 2009. (Am. Compl., Pl. Aff. ¶¶ 2, 9-10,
14, 17, 19.) As these claims all occurred outside the three-year statute of limitations period and are
thus time-barred, the Court respectfully recommends that these claims be dismissed.
C. 	Failure to Allege Personal Involvement of Defendants
Even if the Court were to conclude that Plaintiff’s Section 1983 claims are not time barred,
Defendants argue that these claims must be dismissed for failure to state a claim because the
Amended Complaint does not contain allegations specifying the personal involvement of
Defendants. (Defs. Mem. L. at 6.) Defendants also argue that the Amended Complaint fails to
comply with Federal Rule of Civil Procedure 8(a) because it does not articulate “any factual
allegations as to the manner in which the actions of any of the defendants contributed to any of the
alleged constitutional violations.” (Id. at 10.)
As an initial matter, the Court agrees with Defendants that, other than including the names
of Defendants in each paragraph, the Complaint fails to allege facts sufficient to give Defendants
notice as to the specific conduct of each Defendant giving rise to Plaintiff’s claims, and as such
the Complaint fails to meet the pleading requirements of Rule 8(a). While Rule 8(a)(2) “does not
require detailed factual allegations, . . . it demands more than an unadorned, the-defendant-harmed-
me-accusation.” Iqbal, 556 U.S. at 678 (citation and internal quotation marks omitted). A plaintiff
is obligated to provide grounds for the entitlement to the relief sought in the complaint, which
“requires more than labels and conclusions.” Bell Atl. Corp., 550 U.S. at 555. Even liberally
construed, a review of Plaintiff’s Complaint reflects that all fifty-two paragraphs are bereft of any
facts in support of his claims. (Am. Compl. ¶¶ 1-52.) Likewise, Plaintiff’s twenty-one paragraph
General Affidavit does not make out a single factual allegation against Defendants. (Pl. Aff. ¶¶ 1-
21.) In short, Plaintiff’s pleadings are entirely conclusory and leave Defendants, and this Court,
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without an understanding of Plaintiff’s claims and the grounds upon which they rest. See Cooke v.
Frank Brunckhorst Co., LLC, 788 F. Supp. 3d 390, 399-400 (E.D.N.Y. 2025) (dismissing pro se
plaintiff’s complaint that was “simply too vague to provide Defendant with the requisite notice of
the alleged claim and supporting grounds upon which Plaintiff's allegations rest given its
threadbare nature.”).
Moreover, “[i]t is well settled in this Circuit that personal involvement of defendants in
alleged constitutional deprivations is a prerequisite to an award of damages under § 1983.” Farid
v. Ellen, 593 F.3d 233, 249 (2d Cir. 2010) (quoting Farrell v. Burke, 449 F.3d 470, 484 (2d Cir.
2006)); see also Raspardo v. Carlone, 770 F.3d 97, 115 (2d Cir. 2014) (“If a defendant has
not personally violated a plaintiff’s constitutional rights, the plaintiff cannot succeed on a § 1983
action against the defendant.” (emphasis in original)). “The Second Circuit has defined ‘personal
involvement’ to mean direct participation, such as ‘personal participation by one who has
knowledge of the facts that rendered the conduct illegal,’ or indirect participation, such as ‘ordering
or helping others to do the unlawful acts.’” Nardoni v. City of New York, 331 F. Supp. 3d 116, 122-
23 (S.D.N.Y. 2018) (quoting Provost v. City of Newburgh, 262 F.3d 146, 155 (2d Cir. 2001)).
An official cannot be found liable under Section 1983 “‘merely because he held a high
position of authority,’ but can be held liable if he was personally involved in the alleged
deprivation.” Back v. Hastings on Hudson Union Free Sch. Dist., 365 F.3d 107, 127 (2d Cir. 2004)
(quoting Black v. Coughlin, 76 F.3d 72, 74 (2d Cir. 1996)). In other words, “government officials
may not be held liable for the unconstitutional conduct of their subordinates under a theory
of respondeat superior.” Tangreti v. Bachmann, 983 F.3d 609, 616 (2d Cir. 2020) (quoting Iqbal,
556 U.S. at 676). Rather, “a plaintiff must plead ‘that each Government-official defendant, through
the official’s own individual actions, has violated the Constitution.’” Id. (quoting Iqbal, 556 U.S.
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at 676). “The failure to plead plausible facts as to the personal involvement of a government official
renders the claim fatally defective on its face.” Ligonde v. Marriot Hotel Servs., No. 20-cv-3680
(AMD) (CLP), 2021 U.S. Dist. LEXIS 149435, at *15 (E.D.N.Y. Aug. 5, 2021) (quoting Alfaro
Motors, Inc. v. Ward, 814 F.2d 883, 886 (2d Cir. 1987)) (internal quotations omitted). Plaintiff must
therefore establish that Defendants violated his constitutional rights by their own individual
actions, and not merely because of Defendants’ positions as supervisors.
Plaintiff’s pleadings fail to meet this standard. Plaintiff’s allegations do not include any
plausible facts to establish that Defendants had any personal knowledge or responsibility for any
of the harms he allegedly suffered. (See generally Am. Compl.) As noted above, supra I.B, Plaintiff
broadly alleges that Defendants are part of a “[c]riminal [e]nterprise” operating the 101st police
precinct, and as part of this enterprise, Defendants are engaged in various criminal activities. (Am.
Compl. ¶ 23-34.) Without providing any additional details, Plaintiff concludes that as a result,
Defendants have denied and prohibited Plaintiff from exercising his First and Fourteenth
Amendment rights, and that Defendants committed or failed to prevent acts of discrimination and
racial profiling, causing Plaintiff emotional distress. (Id. ¶¶ 23, 38, 42, 45, 50.) Further, in his
General Affidavit, where Plaintiff provides additional grievances against officers from the 101st
precinct, named and unnamed, Plaintiff only mentions Defendants once, to allege that Defendants
conspired and agreed to discriminate, harass, and racially profile him because he continues to
expose the “Civil Rico Activities” of the corrupt officers at the 101st precinct. (Pl. Aff. ¶ 6.)
Plaintiff does not allege any specific conduct by any of the Defendants to support this general
claim. (See generally Am. Compl.)
In the absence of any factual allegations that plausibly suggest Defendants’ personal
involvement, Plaintiff’s § 1983 claims must be dismissed. “[N]aming the individuals against
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whom relief is sought is insufficient because ‘bald assertions and conclusions of law’ … do not
establish personal involvement. Scelza v. Dep’t of Suffolk Cty. Corr., No. 24-cv-00492 (GRB)
(JMW), 2024 U.S. Dist. LEXIS 80580, at *9 (E.D.N.Y. May 2, 2024) (“[d]ismissal is appropriate
where a defendant is listed in the caption, but the body of the complaint fails to indicate what the
defendant did to the plaintiff.” (internal quotations and citation omitted)); Dowtin v. O’Neil, 416
F. Supp. 3d 159, 162 (E.D.N.Y. 2017) (dismissing pro se plaintiff’s § 1983 claims against police
commissioner and acting district attorney, who were merely “named in the complaint because of
the particular positions that they occupy in the city government,” and where plaintiff failed to show
they “had any direct involvement with, knowledge of, or responsibility for the alleged deprivation
of his civil right”) (collecting cases); Crenshaw v. Toulon, No. 24 cv-00305 (GRB) (JMW), 2025
U.S. Dist. LEXIS 96264, at *12, *20 (E.D.N.Y. May 19, 2025) (dismissing without leave to amend
where pro se plaintiff “neglect[ed] to provide the Court with any support, to either find or infer
personal involvement by any named defendant” and “rel[ied] exclusively upon conclusory
statements”); Johns v. Do, No. 23-cv-3497 (PKC) (SJB), 2024 U.S. Dist. LEXIS 164627, at *18
(E.D.N.Y. Sep. 12, 2024) (dismissing pro se plaintiff’s § 1983 claim against a commissioner where
the amended complaint only references the commissioner by name once).
D. 	Procedurally Barred State Law Claims
Turning to Plaintiff’s state law claims of intentional infliction of emotional distress and
negligence, Defendants argue that Plaintiff’s claims should be dismissed for Plaintiff’s failure to
file a notice of claim under New York General Municipal Law § 50-e. (Defs. Mem. L. at 10-12.)
“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 ninety days after the claim arises.” Olsen v. Cnty. of Nassau, 2008
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U.S. Dist. LEXIS 90426, at *2 (E.D.N.Y. Nov. 4, 2008). “[I]n a federal court, state notice-of-claim
statutes apply to state-law claims.” Hardy v. New York City Health & Hosp. Corp., 164 F.3d 789,
793 (2d Cir. 1999) (emphasis omitted). “A federal court lacks the jurisdiction to waive the notice
requirements of Gen. Mun. Law [§] 50-e . . . or to grant leave to file a late notice of claims for
pendent state tort claims.” Roberts v. New York City Dep’t of Corr., 1998 U.S. Dist. LEXIS 8244,
at *3 (E.D.N.Y. Apr. 30, 1998). Notice of claim requirements are strictly construed, and “failure to
comply with the requirements typically results in dismissal due to failure to state a cause of action.”
Chesney v. Valley Stream Union Free Sch. Dist., No. 05-cv-5106 (DRH) (ETB), 2006 U.S. Dist.
LEXIS 68137, at *26 (E.D.N.Y. Sept. 22, 2006). “[T]he burden is on Plaintiff to demonstrate
compliance with the notice of claim requirements.” Peritz v. Nassau Cnty. Bd. of Coop. Educ.
Servs., No. 16-cv-5478 (DRH) (AYS), 2019 U.S. Dist. LEXIS 96079, at *9 (E.D.N.Y. June 7,
2019). Plaintiff has not indicated that he has filed the notice of claim in his Amended Complaint,
or in any filing before this Court. Accordingly, this Court respectfully recommends that Plaintiff’s
state law claims be dismissed as procedurally barred.
E. 	Dismissal without Leave to Amend
Lastly, Defendants argue that dismissal without leave to amend is warranted because
Plaintiff’s “vague, conclusory, and disorganized” allegations do not provide a basis for any viable
claims. (Defs. Mem. L. at 10, 14-15.)
Generally, although a district court should not dismiss a pro se plaintiff’s complaint without
granting leave to amend at least once, denial of leave is proper where, construing his pleadings
and motion papers most liberally in his favor, leave to replead would be futile. Shibeshi v. City
Univ. of N.Y., 531 F. App’x. 135, 136 (2d Cir. 2013). Here, Plaintiff has already amended his
Complaint once and was provided with ample time to cure any deficiencies in his original
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Complaint. Prior to his amendment, this Court explained to Plaintiff at length that his first
Complaint required additional detail, and offered questions for Plaintiff to consider for his
amended complaint. See supra I.A; (Jan. 27, 2025, Tr. 4:6-11.) Any further amendments to the
denied claims would be futile because neither the original nor the Amended Complaint contain
any facts supporting a Section 1983 claim against Defendants. The Court also cannot conclude that
any further details from Plaintiff would sustain any claims against Defendants, who all appear to
have been named based on their titles, and not as a result of any personal involvement in any
allegedly unconstitutional actions. (See also Pl. Opp. Br. (stating that Defendants “authoriz[ed]
police officers … to physically attack” Plaintiff, causing injury).) As such, further leave to amend
the dismissed claims should not be granted. See Pierre v. N.Y.C. Fire Dep’t, No. 22-cv7425 (HG)
(SJB), 2024 U.S. Dist. LEXIS 17160, at *12 (E.D.N.Y. Jan. 31, 2024) (“[L]eave to amend is
properly denied where, as here, all indications are that the pro se plaintiff will be unable to state a
valid claim.”) (internal quotations and citation omitted).
IV. 	CONCLUSION
For the foregoing reasons, I respectfully recommend that Plaintiff’s claims be dismissed
with prejudice and without leave to amend.
A copy of this Report and Recommendation is being served on all parties via ECF. The
Clerk of Court is 	also 	directed 	to mail a copy to Plaintiff at 512 Beach 	32nd Street
Far Rockaway, NY 11691. Within 14 days of service, any party may serve and file specific written
objections to this Report and Recommendation. 28 U.S.C. § 636(b)(1)(C); Fed. R. Civ. P. 72(b).
Any requests for an extension of time to file objections shall be directed to Judge Merle. If a party
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fails to object timely to this Report and Recommendation, it waives any right to further judicial
review of this decision. See Miller v. Brightstar Asia, Ltd., 43 F.4th 112, 120 (2d Cir. 2022).
SO ORDERED.
Brooklyn, New York
February 2, 2026
____________________________
LARA K. ESHKENAZI
United States Magistrate Judge
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