Keith v. Romain et al

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK
_____________________________________
DAVID KEITH,
Plaintiff,
v.
No. 5:25-CV-747
CARLOS ROMAIN, et al., 	(AMN/PJE)
Defendants.
_____________________________________
APPEARANCES:
David Keith
416 Stinard Avenue
Syracuse, New York 13207
Plaintiff pro se
PAUL J. EVANGELISTA
U.S. MAGISTRATE JUDGE
REPORT-RECOMMENDATION AND ORDER1
I. In Forma Pauperis
Plaintiff pro se David Keith (“plaintiff”) commenced this action on June 12, 2025,
by filing a complaint. 2 	See Dkt. No. 1. 	In lieu of paying this Court’s filing fee, plaintiff
submitted an application for leave to proceed in forma pauperis (“IFP”). See Dkt. No. 2.
The 	undersigned 	has 	reviewed 	plaintiff’s 	IFP 	application 	and 	determines 	that 	he
1 This matter was referred to the undersigned for Report-Recommendation and Order pursuant to 28 U.S.C.
§ 636(b) and N.D.N.Y. L.R. 72.3(d).
2 Plaintiff has filed four other actions in this District. See Keith v. City of Syracuse, et al., 5:00-CV-0053
(FJS/GS) (terminated Nov. 14, 2001); Keith v. Mahar, et al., 5:24-CV-1244 (BKS/MJK) (terminated Apr. 2,
2025); Keith v. Mahar, et al., 5:24-CV-1391 (BKS/MJK) (currently open); Keith v. Romain, 5:25-CV-0758
(AMN/PJE) (currently open).
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financially qualifies to proceed IFP.3 Pursuant to this review, this Court must now assess
the merits of plaintiff’s complaint pursuant to 28 U.S.C. §§ 1915; 1915A.4
II. Initial Review
A. Legal Standards
28 U.S.C. § 1915 directs that, when a plaintiff seeks to proceed IFP, “the court shall
dismiss the case at any time if the court determines that . . . the action or appeal (i) is
frivolous or malicious; (ii) fails to state a claim on which relief may be granted; or (iii) seeks
monetary relief against a defendant who is immune from such relief.” 	28 U.S.C. §
1915(e)(2)(B). “Thus, it is a court’s responsibility to determine that a plaintiff may properly
maintain his complaint before permitting him to proceed further with his action.” Praileau
v. Fischer, 930 F. Supp. 2d 383, 394 (N.D.N.Y. 2013).
Where, as here, the plaintiff proceeds pro se, “the court must construe his
submissions liberally and interpret them to raise the strongest arguments that they
suggest.” 	Kirkland v. Cablevision Sys., 760 F.3d 223, 224 (2d Cir. 2014) (per curiam)
(internal quotation marks and citation omitted). As the Second Circuit stated,
[t]here are many cases in which we have said that a pro se
litigant is entitled to special solicitude, that a pro se litigant’s
submissions 	must 	be 	construed 	liberally, 	and 	that 	such
submissions must be read to raise the strongest arguments
that they suggest. 	At the same time, our cases have also
indicated that we cannot read into pro se submissions claims
that are not consistent with the pro se litigant’s allegations, or
arguments that the submissions themselves do not suggest,
that we should not excuse frivolous or vexatious filings by pro
se litigants, and that pro se status does not exempt a party
3 Plaintiff is advised that although he has been granted IFP status, he is still required to pay any fees and
costs they may incur in this action, including, but not limited to, copying fees, transcript fees, and witness
fees.
4 These requirements apply equally to non-prisoner pro se litigants. See N.D.N.Y. L.R. 72.3(d) (“Unless
the Court orders otherwise, any civil action that a non-prisoner pro se litigant commences shall be referred
to a Magistrate Judge for the purpose of review under 28 U.S.C. §1915(e)(2) and 28 U.S.C. §1915A when
an application to proceed in forma pauperis is filed.”).
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from 	compliance 	with 	relevant 	rules 	of 	procedural 	and
substantive law. . . .
Triestman v. Fed. Bureau of Prisons, 470 F.3d 471, 477 (2d Cir. 2006) (internal quotation
marks, citations, and footnote omitted); see also Sealed Plaintiff v. Sealed Defendant, 537
F.3d 185, 191 (2d Cir. 2008) (“On occasions too numerous to count, we have reminded
district courts that when [a] plaintiff proceeds pro se, . . . a court is obligated to construe
his pleadings liberally.”) (internal quotation marks and citations omitted). Thus, the Court
is not required to accept unsupported allegations that are devoid of sufficient facts or
claims. Although detailed allegations are not required at the pleading stage, the complaint
must still include enough facts to provide the defendants with notice of the claims against
them and the grounds upon which these claims are based. 	See Ashcroft v. Iqbal, 556
U.S. 662, 678 (2009); see also Bell Atlantic v. Twombly, 550 U.S. 544, 555-56 (2007).
Ultimately, the plaintiff must plead “enough facts to state a claim to relief that is plausible
on its face.” 	Twombly, 550 U.S. at 570; see Iqbal, 556 U.S. at 678 (“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.”).
“The [Second Circuit]’s ‘special solicitude’ for pro se pleadings has its limits,
because pro se pleadings still must comply with . . . the Federal Rules of Civil Procedure.”5
Kastner v. Tri State Eye, No. 19-CV-10668 (CM), 2019 WL 6841952, at *2 (S.D.N.Y. Dec.
13, 2019) (quoting Ruotolo v. IRS, 28 F.3d 6, 8 (2d Cir. 1994)).6 	Specifically, Rule 8
provides that a pleading which sets forth a claim for relief shall contain, among other
things, “a short and plain statement of the claim showing that the pleader is entitled to
5 Hereinafter, “Fed. R. Civ. P.”
6 All unpublished opinions cited in this Report-Recommendation and Order, unless otherwise noted, have
been provided to plaintiff.
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relief.” 	FED. R. CIV. P. 8(a)(2). “The purpose . . . is to give fair notice of the claim being
asserted so as to permit the adverse party the opportunity to file a responsive answer,
prepare an adequate defense and determine whether the doctrine of res judicata is
applicable.” 	Flores v. Graphtex, 189 F.R.D. 54, 55 (N.D.N.Y. 1999) (internal quotation
marks and citations omitted). 	Rule 8 also requires the pleading to include “a short and
plain statement of the grounds for the court’s jurisdiction . . . 	and . . . a demand for the
relief sought . . . .” 	FED. R. CIV. P. 8(a). 	Although “[n]o technical form is required,” the
Federal Rules make clear that each allegation contained in the pleading “must be simple,
concise, and direct.” FED. R. CIV. P. 8(d).
Further, Rule 10 provides in pertinent part that:
[a] party must state its claims or defenses in numbered
paragraphs, each limited as far as practicable to a single set
of circumstances. A later pleading may refer by number to a
paragraph in an earlier pleading. 	If doing so would promote
clarity, each claim founded on a separate transaction or
occurrence—and each defense other than a denial—must be
stated in a separate count or defense.
FED. R. CIV. P. 10(b). 	This serves the purpose of “provid[ing] an easy mode of
identification for referring to a particular paragraph in a prior pleading[.]” 	Flores, 189
F.R.D. at 55 (internal quotation marks and citations omitted). 	A complaint that fails to
comply with the pleading requirements “presents far too a heavy burden in terms of
defendants’ duty to shape a comprehensive defense and provides no meaningful basis
for the Court to assess the sufficiency of their claims.” Gonzales v. Wing, 167 F.R.D. 352,
355 (N.D.N.Y. 1996). 	As the Second Circuit has held, “[w]hen a complaint does not
comply with the requirement that it be short and plain, the court has the power, on its own
initiative . . . to dismiss the complaint.” 	Salahuddin v. Cuomo, 861 F.2d 40, 42 (2d Cir.
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1988) (citations omitted). However, “[d]ismissal . . . 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. (citations omitted).
III. Discussion
A. Plaintiff’s Complaint
Plaintiff claims that his Fourth Amendment rights have been violated. See Dkt. No.
1 at 3. Plaintiff’s complaint is based on the following events. On June 13, 2023, plaintiff
was walking to Syracuse City Hall. 	See id. at 2. 	While on his walk, plaintiff saw Mayor
Benjamin Walsh7 and “greeted him good morning.” Id. Plaintiff then asked Mayor Walsh
if he could speak with him. See id. 	Mayor Walsh “said yes and invited [plaintiff] around
the corner to speak to him.” 	Id. 	Sergeant Carlos Romain then appeared and detained
plaintiff. 	See id. 	Plaintiff alleges that Mayor Walsh did not intervene when he was
detained, despite having an opportunity to do so. 	See id. 	Plaintiff seeks $60,000 in
damages and an order directing Sergeant Romain to “be retrained on the United States
Constitution.” Id. at 4.
B. Analysis8
Liberally construing plaintiff’s complaint, plaintiff seeks to proceed pursuant to 42
U.S.C. § 1983 against Carlos Romain, Sergeant Syracuse Police Department (“Romain”);
7 The undersigned notes that plaintiff spells Mayor Walsh’s name as “Benjamen Walsh.” Dkt. No. 1 at 2.
It appears the correct spelling of Mayor Walsh’s name is Benjamin Walsh. See BEN W ALSH ,
https://en.wikipedia.org/wiki/Ben_Walsh/ (last visited on Jan. 13, 2026).
8 Plaintiff’s civil cover sheet checks the box indicating “U.S. Government” as the basis of jurisdiction. See
Dkt. No. 1-1. However, the United States Government is not a defendant in this action. See generally Dkt.
No. 1. 	Reading plaintiff’s complaint liberally and affording him due solicitude, it appears plaintiff likely
intended to mean that his claims involve federal question jurisdiction. See Cinotti v. Adelman, 709 F. App'x
39, 40 (2d Cir. 2017) (summary order) (“[A]lthough [the plaintiff’s] pro se complaint does not refer to 42
U.S.C. § 1983, the district court should have construed it liberally as asserting § 1983 claims, which provide
a basis for federal question jurisdiction.”).
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Benjamin Walsh, Mayor of Syracuse (“Walsh”); and the City of Syracuse for alleged
violations of his Fourth Amendment rights. See generally Dkt. No. 1; see also Triestman,
470 F.3d at 475 (“This policy of liberally construing pro se submissions is driven by the
understanding that ‘[i]mplicit in the right of self-representation is an obligation on the part
of the court to make reasonable allowances to protect pro se litigants from inadvertent
forfeiture of important rights because of their lack of legal training.’”) (quoting Traguth v.
Zuck, 710 F.2d 90, 95 (2d Cir. 1983)). 	More specifically, plaintiff alleges that Romain,
Walsh, and the City of Syracuse violated his Fourth Amendment right against unlawful
seizure because Romain “intentionally” detained him without reasonable suspicion,
Walsh failed to intervene when he was unlawfully detained, and the City of Syracuse
“depriv[ed] his rights under the color of law.” Dkt. No. 1 at 3.
1. Fed. R. Civ. P. 8
As a threshold matter, plaintiff’s complaint fails to satisfy the pleading requirements
of Rule 8. 	See FED. R. CIV. P. 8(a). 	Plaintiff’s complaint does not provide “a short and
plain statement of the claim showing” why he is entitled to relief. Id. Plaintiff’s complaint
alleges that he was unlawfully detained by Romain in Walsh’s presence and that Walsh
refused to intervene on his behalf in violation of his Fourth Amendment right against
unlawful seizure. See Dkt. No. 1 at 2-3. Yet, plaintiff has not demonstrated that he was
actually detained. 	Plaintiff does not provide any details or context explaining the facts
and circumstances surrounding the nature of the alleged detention, such as the manner
in which he was detained or the length, location, or conditions of his detention. Similarly,
plaintiff does not describe the events immediately preceding the alleged detention or his
interactions with Romain and Walsh prior to, during, or after his alleged detention. 	He
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also fails to demonstrate that the City of Syracuse is subject to § 1983 liability.9 See id.
Without this information, plaintiff’s complaint does not provide “fair notice of the claim[s]
being asserted” against defendants such that they would have an adequate opportunity
to file an answer and “prepare an adequate defense.” Flores, 189 F.R.D. at 55; FED. R.
CIV. P. 8(a)(2). 	Therefore, the undersigned recommends dismissing the plaintiff’s
complaint regarding Fourth Amendment unlawful seizure claims and the failure of Walsh
to intervene, without prejudice and with leave to amend, due to non-compliance with Rule
8’s pleading standards. See Salahuddin, 861 F.2d at 42; FED. R. CIV. P. 8(a)(2).
2. Fourth Amendment
The Fourth Amendment guarantees “[t]he right of the people to be secure in their
persons, houses, papers, and effects, against unreasonable searches and seizures . . .”
U.S. CONST . AMEND. IV. “The Fourth Amendment prohibits ‘police seizures of persons for
custodial interrogation – even brief detentions falling short of arrest – without probable
cause.’” Clarke v. Cnty. of Broome, No. 1:10-CV-399 (MAD/ATB), 2012 WL 1005086, at
*6 (N.D.N.Y. Mar. 23, 2012) (quoting Cerrone v. Brown, 246 F.3d 194, 199 (2d Cir. 2001)).
“The 	protections 	of 	the 	Fourth Amendment 	are 	limited 	to 	rights 	violated 	through
unreasonable searches and seizures.” 	Id. (citing County of Sacramento v. Lewis, 523
U.S. 833, 844 (1998)). 	“[E]ven unreasonable, unjustified, or outrageous conduct by an
officer is not prohibited by the Fourth Amendment if it does not involve a seizure . . . or
. . . a search.” Id. (quoting Dick v. Gainer, 1998 WL 894649, at *2 (7th Cir.1998)).
“In order for a seizure to occur, the subject must ‘yield’ to the assertion of authority
over him and thereby have his liberty restrained.” 	Clarke, 2012 WL 1005086, at *6
9 The undersigned discusses this in greater detail below. See infra at 12-14.
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(quoting Britton v. Maloney, 196 F.3d 24, 30 (1st Cir.1999) (citing California v. Hodari D.,
499 U.S. 621, 626 (1991))). “If there is a show of authority without use of physical force,
there can be no seizure unless there is also ‘actual submission’ to the show of authority.”
Id. (citing Hodari D., 499 U.S. at 626 n.2). “To determine whether an encounter constitutes
a seizure, ‘a court must consider the totality of the circumstances and ascertain whether
the police conduct would have communicated to a reasonable person that she was free
to terminate the encounter.’” Id. (quoting Saenz v. Lucas, No. 07 CIV. 10534 (WCC), 2008
WL 2735867, at *3 (S.D.N.Y. July 9, 2008) (citing inter alia U.S. v. Glover, 957 F.2d 1004,
1008 (2d Cir.1992)). The Second Circuit has noted that the
[f]actors suggesting that a seizure has occurred include: the threatening
presence of police officers; the display of a weapon; physical contact by the
officer; language indicating that compliance with the officer is compulsory;
prolonged retention of a person’s belongings; and a request by an officer to
accompany him or her to the police station or a police room.
Id. (citing Gardiner v. Inc. Vill. of Endicott, 50 F.3d 151, 155 (2d Cir.1995).
Here, even applying due solicitude, plaintiff has not set forth a sufficient showing
that he was unlawfully seized. As discussed above, plaintiff has not provided any details
regarding the events leading up to the purported seizure or his interactions with Romain.
See supra at 6. Without that additional information, judicial review is frustrated, and the
undersigned is unable to evaluate whether Romain’s alleged seizure of plaintiff was
unreasonable. In its current form, plaintiff’s complaint is unclear as to what occurred on
June 13, 2023, at the City of Syracuse City Hall. 	See Dkt. No. 1 at 2. Accordingly, the
undersigned recommends that plaintiff’s Fourth Amendment unreasonable seizure claim
against Romain in his individual capacity be dismissed without prejudice and with leave
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to amend. See Clarke, 2012 WL 1005086, at *6 (first quoting Saenz, 2008 WL 2735867,
at *3, then citing Gardiner, 50 F.3d 151 at 155).
As to plaintiff’s claim that Walsh failed to intervene while plaintiff was being
detained by Romain, the undersigned concludes that evaluation of claim at the current
stage would be premature because plaintiff has not demonstrated that he was unlawfully
detained, such that any potential duty to intervene would have been triggered. 	See
Marom v. Blanco, No. 15-CV-2017 (PKC), 2019 WL 3338141, at *12 (S.D.N.Y. July 25,
2019) (quoting Matthews v. City of New York, 889 F. Supp. 2d 418, 443-44 (E.D.N.Y.
2012)) (“[A] failure to intervene claim is contingent upon the disposition of the primary
claims underlying the failure to intervene claim.”); Morton v. City of Albany, No. 8-CV-1304
(TJM), 2009 WL 2568595, at *7 (N.D.N.Y. Aug. 19, 2009) (internal citations omitted)
(“Because Plaintiff has not asserted an actionable violation of her federal constitutional
rights, her Section 1983 claims premised upon the theories of the failure to intervene . . .
Monell liability . . . and supervisory liability must also be dismissed.”).
Regardless, for sake of completeness of review, the undersigned concludes that
plaintiff has not established that Walsh had a duty to intervene at the time of his alleged
seizure. 	A duty to intervene applies, among other factors, when the defendant is a
member of law enforcement10 or there exists a special relationship between the defendant
10 “[A]ll law enforcement officials have an affirmative duty to intervene to protect the constitutional rights of
citizens from infringement by other law enforcement officers in their presence.” Johnson v. New York State
Police, 659 F. Supp. 3d 237, 250 (N.D.N.Y. 2023) (quoting Anderson v. Branen, 17 F.3d 552, 557 (2d Cir.
1994). “A police officer therefore can be held liable for his failure to intervene if he or she observes the use
of excessive force and has sufficient time to act but takes no steps to prevent it.” Id. (quoting Merrill v.
Schell, 279 F. Supp. 3d 438, 444 (W.D.N.Y. 2017).
To state a claim for failure to intervene, a complaint must plead that (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.
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and the plaintiff.11 	Plaintiff has not established either. 	See generally Dkt. No. 1.
Accordingly, the undersigned recommends that plaintiff’s Fourth Amendment failure-to-
intervene claim against Walsh in his personal capacity be dismissed without prejudice
and with leave to amend.
3. Mayor Walsh
Although the complaint lists Walsh as “Mayor of Syracuse,” plaintiff does not
specify whether he seeks to sue Walsh in his official capacity, individual capacity, or both.
See generally Dkt. No. 1. Plaintiff’s allegations concern Walsh’s conduct as Mayor. See
Dkt. No. 1 at 7. 	However, “[a]t this early stage, the undersigned will consider whether
either a personal or official capacity claim can survive initial review.” Scott v. Crossway,
No. 1:22-CV-500 (BKS/CFH), 2022 WL 16646531, at *6 (N.D.N.Y. Nov. 3, 2022), report
and recommendation adopted, No. 1:22-CV-500 (BKS/CFH), 2023 WL 34543 (N.D.N.Y.
Jan. 4, 2023) (citing Ying Jing Gan v. City of New York, 996 F.2d 522, 530 (2d Cir. 1993)
(citations and quotation marks omitted) (“[I]n many cases, a complaint against public
officials will not clearly specify whether officials are sued personally, in their official
Id. (quoting Rosario v. City of N.Y., 2019 WL 4450685, at *7 (S.D.N.Y. Sept. 16, 2019) (internal quotation
marks omitted).
11 “A special relationship is created due to the ‘State’s affirmative act of restraining the individual's freedom
to act on his own behalf—through incarceration, institutionalization, or other similar restraint of personal
liberty.’” Imbriano v. Murray, No. 1:24-CV-293 (LEK/DJS), 2025 WL 40844, at *4 (N.D.N.Y. Jan. 7, 2025)
(quoting DeShaney v. Winnebago Cnty. Dep’t of Soc. Servs., 489 U.S. 189, 200 (1989). 	“Special
relationships that have been recognized to give rise to a governmental duty to protect against third-person
attacks have included custodial relationships such as a prison and inmate or a mental institution and
involuntarily committed patient, and the relationship between a social service agency and foster child.” Id.
(quoting Ying Jing Gan v. City of New York, 996 F.2d 522, 533 (2d Cir. 1993) (citing DeShaney, 489 U.S. at
198-99))). 	“Although a seizure is a restraint on personal liberty, see Singer v. Fulton Cnty. Sheriff, 63 F.3d
110, 116 (2d Cir. 1995), it does not rise to the level of custody the Supreme Court envisioned in DeShaney.”
Id.; see Campbell v. Brentwood Union Free School Dist., 904 F. Supp. 2d 275, 280 (E.D.N.Y. 2012) (“The
touchstone of the ‘special relationship’ exception to the DeShaney rule is the requirement that the state has
somehow 	placed 	the 	victim 	within 	its 	custody 	. 	. 	. 	includes 	imprisonment 	and 	involuntary
institutionalization.”).
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capacity, or both, and only [t]he course of proceedings . . . will indicate the nature of the
liability to be imposed[.]”)
a. Personal Involvement
“[I]n order to recover damages in a civil rights action, [the] plaintiff must allege a
defendant’s direct or personal involvement in the alleged constitutional deprivations, and
supervisory officials may not be held liable merely because they held a position of
authority.” 	Golston v. Cortese, No. 1:21-CV-914 (GTS/CFH), 2022 WL 2657290, at *6,
n.7 (N.D.N.Y. Apr. 1, 2022), report and recommendation adopted, No. 1:21-CV-0914
(GTS/CFH), 2022 WL 2071773 (N.D.N.Y. June 9, 2022) (quoting Montes v. O'Shea, No.
1:21-CV-303 (DNH/ATB), 2021 WL 1759853, at *5 (N.D.N.Y. Apr. 6, 2021), report and
recommendation adopted, No. 1:21-CV-303, 2021 WL 1758858 (N.D.N.Y. May 4, 2021)
(first citing Wright v. Smith, 21 F.3d 496, 501 (2d Cir. 1994); then citing Black v. Coughlin,
76 F.3d 72, 74 (2d Cir. 1996))). “[T]here is no special rule for supervisory liability. Instead,
a plaintiff must plead and prove ‘that each Government-official defendant, through the
official’s own individual actions, has violated the Constitution.’” 	Id. (quoting Tangreti v.
Bachmann, 983 F.3d 609, 618 (2d Cir. 2020) (quoting Iqbal, 556 U.S. at 676)); see also
Davis v. Cnty. of Nassau, 355 F. Supp. 2d 668, 677 (E.D.N.Y. 2005) (quoting Leeds v.
Meltz, 85 F.3d 51, 53 (2d Cir. 1996)) (A “complaint must still allege particular facts
indicating that an individual defendant was personally involved in the deprivation of the
plaintiff's constitutional rights; mere ‘bald assertions and conclusions of law’ do not
suffice.”)). 	“A complaint that essentially regurgitates the relevant ‘personal involvement’
standard, without offering any facts indicating that, or how, an individual defendant in a
supervisory role was personally involved in a constitutional violation, cannot withstand
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dismissal.” 	Davis, 355 F. Supp. 2d at 677 (citations omitted). 	“[V]ague, conclusory
allegations do not satisfy the personal involvement standard.” Collins v. City Univ. of New
York, No. 21 CIV. 9544 (NRB), 2023 WL 1818547, at *6 (S.D.N.Y. Feb. 8, 2023) (citing
Medina v. Kaplan, No. 16-CV-7223, 2018 WL 797330, at *6 (S.D.N.Y. 2018)).
Here, plaintiff’s complaint fails to specify how Walsh was personally involved in any
constitutional violation. See generally Dkt. No. 1. As stated above, the only connections
between Walsh and the complaint are (1) plaintiff greeted Walsh and asked to speak with
him; (2) Walsh allegedly “invited [plaintiff] around the corner to speak with him”; and
(3) Walsh was present when Romain purportedly detained plaintiff.12 Id. at 2. As such,
these isolated connections are not sufficient to demonstrate personal involvement or an
individual action giving rise to plaintiff’s alleged constitutional violations. 	See Golston,
2022 WL 2657290, at *6; Leeds, 85 F.3d at 53. Thus, Walsh’s role as a “Mayor,” without
more, is not enough to state a claim against him under Section 1983. See Tangreti, 983
F.3d at 618; Peck v. Cnty. of Onondaga, New York, No. 5:21-CV-651 (DNH), 2021 WL
3710546, at *9 (N.D.N.Y. Aug. 20, 2021) (quoting Victory v. Pataki, 814 F.3d 47, 67 (2d
Cir. 2016) (“A defendant in a § 1983 action may not be held liable for damages for
constitutional violations merely because he held a high position of authority.”)). Therefore,
the undersigned concludes that plaintiff has failed to demonstrate Walsh’s personal
involvement in the alleged violation of his Fourth Amendment right against unlawful
12 As discussed supra, plaintiff alleges that Walsh violated his constitutional rights by failing to intervene in
Romain’s seizure of his person, but plaintiff has not demonstrated that Walsh had a duty to intervene or
that such a duty was triggered at the time of his alleged seizure in violation of his constitutional rights. See
supra at 9-10.
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seizure and recommends plaintiff’s claim(s) against Walsh in his individual capacity be
dismissed without prejudice and with leave to amend.13
Additionally, 	“official-capacity 	suits 	generally 	represent 	only 	another 	way 	of
pleading an action against an entity of which an officer is an agent.” In re New York City
Policing During Summer 2020 Demonstrations, 548 F. Supp. 3d 383, 408 (S.D.N.Y. 2021)
(quoting Monell v. Dep’t of Soc. Servs., 436 U.S. 658, 690 n. 55 (1978)). 	“Where the
governmental entity can itself be held liable for damages as a result of its official policy, a
suit naming the legislators in their official capacity is redundant.” 	Id. at 408-09 (quoting
Schubert v. City of Rye, 775 F. Supp. 2d 689, 699 (S.D.N.Y. 2011) (quoting Rini v. Zwirn,
886 F. Supp. 270, 281 (E.D.N.Y. 1995))). 	“Accordingly, courts in the Second Circuit
routinely dismiss official capacity claims against municipal officials as duplicative of the
claims against the municipality.” 	Id. (citing Phillips v. Cty. Of Orange, 894 F. Supp. 2d
345, 384 n.35 (S.D.N.Y. 2012)). As plaintiff has also named the City of Syracuse, naming
Romain and Walsh in their official capacities would be redundant of a claim against the
City pursuant to Monell. 	Thus, it is recommended that, to the extent plaintiff seeks to
name Romain and Walsh in their official capacities, such claim be dismissed with
prejudice. See In re New York City Policing During Summer 2020 Demonstrations, 548
F. Supp. 3d at 408-09.
4. Monell
13 To the extent plaintiff wishes to amend to attempt to set forth a claim of Walsh’s direct involvement in a
Fourth Amendment unreasonable seizure claim, he cannot also claim failure-to-intervene. See Chepilko
v. City of New York, No. 06-CV-5491, 2012 WL 398700, at *8 n.5 (E.D.N.Y. Feb. 6, 2012) (finding that if a
defendant “may be liable under a theory of direct participation, there is no claim against [that defendant]
for failure to intervene.").
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“Municipalities may be sued directly under [Section] 1983” pursuant to Monell v.
Department of Social Services, 436 U.S. 658 (1978) “for constitutional deprivations
inflicted upon private individuals pursuant to governmental custom, policy, ordinance,
regulation, or decision.” 	Batista v. Rodriguez, 702 F.2d 393, 397 (2d Cir. 1983) (citing
Monell, 436 U.S. at 690-91). “To set forth a cognizable claim for municipal liability under
§ 1983, a plaintiff must plead that a deprivation of his constitutional rights was ‘caused by
a governmental custom, policy, or usage of the municipality.’” Dougal v. Lewicki, No. 1:23-
CV-1167 (DNH/CFH), 2023 WL 6430586, at *10 (N.D.N.Y. Oct. 3, 2023), report and
recommendation adopted, 2023 WL 7013384 (N.D.N.Y. Oct. 25, 2023) (quoting Jones v.
Town of E. Haven, 691 F.3d 72, 80 (2d Cir. 2012) (citing Monell, 436 U.S. at 690-91)).
“Municipalities may only be held liable when the municipality itself deprives an individual
of a constitutional right; it ‘may not be held liable on a theory of respondeat superior.’” Id.
(quoting Jeffes v. Barnes, 208 F.3d 49, 56 (2d Cir. 2000)). An “official policy or custom”
can be pleaded as follows:
(1) a formal policy officially endorsed by the municipality; (2) actions taken
by government officials responsible for establishing municipal policies
related to the particular deprivation in question; (3) a practice so consistent
and widespread that it constitutes a ‘custom or usage’ sufficient to impute
constructive knowledge of the practice to policymaking officials; or (4) a
failure by policymakers to train or supervise subordinates to such an extent
that it amounts to ‘deliberate indifference’ to the rights of those who come
in contact with the municipal employees.
Id. (quoting Dorsett-Felicelli, Inc. v. Cty. of Clinton, 371 F. Supp. 2d 183, 194 (N.D.N.Y.
2005)) (internal citations omitted); see also Santos v. New York City, 847 F. Supp. 2d 573,
576 (S.D.N.Y. 2012) (explaining that, to state an official policy claim under Monell, the
plaintiff “must do more than simply state that a municipal policy . . . exists”); Coleman v.
Cnty. of Suffolk, 685 F. App’x 69, 72 (2d Cir. 2017) (summary order) (“Where . . . the
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conduct of individual defendant officers does not violate the plaintiff's constitutional rights,
the municipality is generally not liable for a policy or practice pursuant to which the
conduct was performed.”); Fleming v. City of New York, No. 18-CV-4866 (GBD/JW), 2023
WL 1861223, at *1 (S.D.N.Y. Feb. 9, 2023) (noting that, in some situations, a municipality
may be held liable under Monell even if a plaintiff is unable to establish liability against
individual defendants).
Under Monell, the proper defendant is the municipality itself, and a claim may only
proceed against a municipality within the limited confines of Monell. 	See Batista, 702
F.2d at 397 (citing Monell, 436 U.S. at 690-91). 	Here, plaintiff has not pled that his
constitutional rights were violated due to an official City of Syracuse policy, a persistent
and widespread custom or practice, failure to train or supervise, or because a policy-
making official’s deliberate conduct deprived him of a constitutional right. 	See Dougal,
2023 WL 6430586, at *10 (quoting Dorsett-Felicelli, Inc., 371 F. Supp. 2d at 194); see
also Lucente v. Cnty. of Suffolk, 980 F.3d 284, 297-98 (2d Cir. 2020). 	Instead, he
summarily concludes that the City of Syracuse “depriv[ed] his rights under the color of
law” because Romain is a sergeant with the Syracuse Police Department. Dkt. No. 1 at
3. However, as discussed above, “a municipality may not be held liable under 1983 ‘solely
because it employs a tortfeasor.’” 	Mulqueen v. Herkimer Cnty. Child Protective Servs.,
No. 6:22-CV1-301 (TJM/ATB), 2023 WL 4931679, at *6 (N.D.N.Y. Aug. 2, 2023), report
and 	recommendation 	adopted, 	No. 	6:22-CV-1301 	(BKS/MJK), 	2024 	WL 	756833
(N.D.N.Y. Feb. 23, 2024) (citing Cowan v. City of Mt. Vernon, 95 F. Supp. 3d 624, 636
(S.D.N.Y. 2015) (quoting Bd. of Cnty. Comm’rs v. Brown, 520 U.S. 397, 403 (1997));
Dougal, 2023 WL 6430586, at *10 (quoting Jeffes, 208 F.3d at 56).
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It is further recommended that all of plaintiff’s claims raised against the City of
Syracuse be dismissed for failure to sufficiently plead a Monell claim. 	See id. (quoting
Monell, 436 U.S. at 691 n. 55); Dougal, 2023 WL 6430586, at *10 (quoting Dorsett-
Felicelli, Inc., 371 F. Supp. 2d at 194). 	Accordingly, as it is possible that plaintiff may
potentially be able to amend to plead that his constitutional rights were violated due to an
official City of Syracuse policy, persistent and widespread custom or practice, a failure to
train or supervise, or because a policy-making official’s deliberate conduct deprived him
of constitutional rights, the undersigned recommends that plaintiff’s complaint against City
of Syracuse, be dismissed without prejudice and with leave to renew.
IV. Leave to Amend
Generally, “[a] pro se complaint should not be dismissed without the Court granting
leave to amend at least once when a liberal reading of the complaint gives any indication
that a valid claim might be stated.” Romano v. Lisson, 711 F. App’x 17, 19 (2d Cir. 2017)
(summary order) (quoting Nielsen v. Rabin, 746 F.3d 58, 62 (2d Cir. 2014) (quotation
omitted)). “However, if the problems with a complaint are ‘substantive’ rather than the
result of an ‘inadequately or inartfully pleaded’ complaint, an opportunity to re-plead would
be ‘futile’ and ‘should be denied.’” 	Edwards v. Penix, 388 F. Supp. 3d 135, 144-45
(N.D.N.Y. 2019) (quoting Cuoco v. Moritsugu, 222 F.3d 99, 112 (2d Cir. 2000)).
The problems with plaintiff’s claims against Romain and Walsh in their official
capacities are substantive, such that repleading would be futile. 	See id. 	Conversely,
Plaintiff’s Fourth Amendment unlawful seizure claim against Romain and the unlawful
seizure and failure-to-intervene claims against Walsh in their individual capacities may
potentially be cured by a better pleading. Similarly, plaintiff can potentially amend to plead
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a Monell claim. Accordingly, it is recommended that, insofar as plaintiff seeks to proceed
against Romain and Walsh in their official capacities, such claims be dismissed with
prejudice and without leave to amend, and insofar as plaintiff seeks to proceed against
Romain and Walsh in their individual capacities for allegedly violating his Fourth
Amendment rights, and against the City of Syracuse under Monell, such claims be
dismissed without prejudice and with leave to amend.14
IV. Conclusion
WHEREFORE, for the reasons set forth herein, it is hereby
ORDERED, that plaintiff's application to proceed in forma pauperis (Dkt. No. 2) is
GRANTED; and it is
RECOMMENDED, that plaintiff’s claims against Romain and Walsh in their official
capacities be DISMISSED with prejudice and without leave to amend; and it is further
RECOMMENDED, that the remainder of the complaint (Dkt. No. 1) be DISMISSED
without prejudice and with leave to amend; and it is further
RECOMMENDED, that if the District Judge adopts this Report-Recommendation
& Order, plaintiff be given thirty days from the filing date of the District Judge’s Order
adopting this Report-Recommendation and Order to file an amended complaint, and if
the plaintiff does not so file pursuant to that Decision & Order, the action may be closed
without need for further order of the Court, and if plaintiff does so file, the amended
14 In the event the District Judge adopts the undersigned’s Report-Recommendation & Order and plaintiff is
permitted to file an amended complaint, plaintiff is advised that any amended pleading cannot incorporate
a prior pleading by reference and may not attempt to replead claims that have already been dismissed by
this Court with prejudice. Any amended pleading supersedes and replaces a prior pleading in its entirety.
An amended pleading must establish this Court’s jurisdiction and state a claim for relief against each named
defendant for whom leave to replead was granted according to Rules 8 and 10 of the Federal Rules of Civil
Procedure.
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complaint 	be 	noticed 	for 	substantive 	sufficiency 	review 	pursuant 	to 	28 	U.S.C. 	§
1915(e)(2)(B);
ORDERED, that the Clerk update the caption to reflect the correct spelling of
defendant’s name to be Benjamin Walsh;
ORDERED, that the Clerk serve a copy of this Report-Recommendation and Order
on plaintiff in accordance with Local Rules.
IT IS SO ORDERED.
Pursuant to 28 U.S.C. § 636(b)(1), plaintiff has FOURTEEN (14) days within which
to file written objections to the foregoing report. Such objections shall be filed with the
Clerk of the Court. FAILURE TO OBJECT TO THIS REPORT WITHIN FOURTEEN (14)
DAYS WILL PRECLUDE APPELLATE REVIEW. 	See Roldan v. Racette, 984 F.2d 85,
89 (2d Cir. 1993) (citing Small v. Sec'y of Health and Human Servs., 892 F.2d 15 (2d Cir.
1989)); see also 28 U.S.C. § 636(b)(1); FED. R. CIV. P. 6(a), 72.15
Dated: January 20, 2026
Albany, New York
15 If you are proceeding pro se and are served with this Report-Recommendation and Order by mail, three
(3) additional days will be added to the fourteen-day (14) period, meaning that you have seventeen (17)
days from the date the Report-Recommendation and Order was mailed to you to serve and file objections.
See FED. R. CIV . P. 6(d). If the last day of that prescribed period falls on a Saturday, Sunday, or legal holiday,
then the deadline is extended until the end of the next day that is not a Saturday, Sunday, or legal holiday.
See id. § 6(a)(1)(c).
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