Lynch v. City of New York

18-1247-cv
Lynch v. City of New York
1UNITED STATES COURT OF APPEALS
2FOR THE SECOND CIRCUIT
3- - - - - -
4August Term, 2018
5(Argued: April 15, 2019 Decided: March 4, 2020)
6Docket No. 18-1247-cv
7_________________________________________________________
8RICHARD LYNCH,
9Plaintiff-Appellant,
10VIENNA RYE,
11Plaintiff,
12- v. -
13CITY OF NEW YORK, Police Officer JONMICHAEL DELAROSA,
14Shield No. 17441, Police Officer MARIANN MANDY, Shield No.
1500603, Deputy Inspector ANDREW LOMBARDO, NYPD Legal
16Bureau Agency Attorney LESTER PAVERMAN,
17Defendants-Appellees,
18JOHN DOES; and RICHARD ROES,
19Defendants.
*
20_________________________________________________________
*The Clerk of Court is directed to amend the official caption to conform with the
above.

1Before: KEARSE, WINTER, and POOLER, Circuit Judges.
2Appeal by plaintiff Lynch from so much of a judgment of the United
3States District Court for the Southern District of New York, Loretta A. Preska, Judge,
4as dismissed claims asserted by Lynch in the amended complaint, brought under
542 U.S.C. § 1983, principally for false arrest, malicious prosecution, abuse of process,
6violation of his rights to free speech and equal protection, and use of excessive force,
7in the arrest of Lynch during a demonstration organized by an affiliate of the Black
8Lives Matter movement. The district court granted defendants-appellees' motion to
9dismiss pursuant to Fed. R. Civ. P. 12(b)(6) and 12(c), ruling principally that there was
10probable cause for Lynch's arrest. See Lynch v. City of New York, No. 16 Civ. 7355, 2018
11WL 1750078 (Mar. 27, 2018). On appeal, Lynch contends that the court erred by
12failing to accept the factual allegations of the amended complaint as true and failing
13to draw all reasonable inferences therefrom in his favor. We agree insofar as Lynch
14asserted claims against the City and the defendant who signed the summonses
15against him; and we vacate the judgment to that extent and remand for further
16proceedings.
17Affirmed in part; vacated and remanded in part.
2

1JEFFREY A. ROTHMAN, New York, New York, for
2Plaintiff-Appellant.
3MELANIE T. WEST, Assistant Corporation Counsel,
4New York, New York (Zachary W. Carter,
5Corporation Counsel of the City of New York,
6Richard Dearing, New York, New York, on the
7brief), for Defendants-Appellees.
8KEARSE, Circuit Judge:
9Plaintiff Richard Lynch appeals from so much of a judgment of the
10United States District Court for the Southern District of New York, Loretta A. Preska,
11Judge, as dismissed his claims in the amended complaint (or "Complaint" or "Am.
12Compl."), brought under 42 U.S.C. § 1983 against defendants City of New York
13(the "City") and several individual members of the City's Police Department
14("NYPD"), alleging federal and state claims of, inter alia, false arrest, malicious
15prosecution, abuse of process, infringement of Lynch's rights to free speech and equal
16protection, and use of excessive force, in connection with his arrest during a
17demonstration organized by an affiliate of the Black Lives Matter movement. The
18district court granted defendants-appellees' motion to dismiss the Complaint
3

1pursuant to Federal Rules of Civil Procedure 12(b)(6) and 12(c), holding principally
2that there was probable cause for Lynch's arrest. On appeal, Lynch contends that the
3court erred by failing to accept the factual allegations of the amended complaint as
4true and failing to draw all reasonable inferences therefrom in his favor. For the
5reasons that follow, we agree insofar as Lynch asserted claims against the City and
6the officer who swore out the summonses against him; and we vacate the judgment
7to that extent and remand for further proceedings.
8I. BACKGROUND
9This action sought damages against defendants for Lynch and Vienna
10Rye as plaintiffs, alleging claims against the City and against individual defendants
11whose conduct--assuming the truth of the factual allegations in the Complaint--
12included the following: NYPD Officer Jonmichael Delarosa arrested and swore out
13summonses against Rye; NYPD Officer Mariann Mandy arrested and swore out
14summonses against Lynch; NYPD Deputy Inspector Andrew Lombardo, a
15supervisor, gave instructions as to how Lynch was to be treated after his arrest; and
16NYPD Legal Bureau Agency attorney Lester Paverman who conferred with Delarosa,
4

1and "possibly" with Mandy (see Part I.B. below), following the arrests of Rye and
2Lynch and prior to the issuance of their respective summonses. On defendants'
3motion under Fed. R. Civ. P. 12(b)(6) and 12(c), the action was dismissed in its
4entirety. Only Lynch has appealed.
5A. The Complaint
6With respect to Lynch, the Complaint included the following factual
7allegations.
81. The June 22, 2015 Vigil and March
9On the evening of June 22, 2015, Lynch participated in a vigil and march
10in New York City, organized by an affiliate of the Black Lives Matter movement.
11Shortly after the vigil concluded, a large number of people began to march south from
12125th Street in Harlem; numerous members of NYPD walked alongside the marchers,
13escorting the march as it left the location of the vigil. (See Complaint ¶¶ 12-13.)
14Paragraphs 49-88 of the Complaint describe the actions, participation,
15and treatment of Lynch. Some eight weeks prior to the vigil and march, Lynch had
16undergone spinal and thoracic surgery. On June 22, he was moving slowly and was
5

1at the rear of the march as it reached West 104th Street. (See Complaint ¶¶ 49-51.)
2There, Lynch "crossed from the north sidewalk of 104
th
Street to the south sidewalk."
3(Id. ¶ 52.) Then, the Complaint alleged,
4[w]hile Plaintiff RICHARD LYNCH was standing on the south
5sidewalk, without saying a word to him two JOHN DOES
6members of the NYPD, one male and one female (on information
7and belief the female officer was Defendant MANDY), ran up
8behind him, grabbed him, threw him with great force into a van,
9and handcuffed him with excessive force and painful tightness, on
10information and belief with plastic flexcuffs.
11(Id. ¶ 53.) Thereafter, Lynch was moved to a police car and was taken to a local police
12precinct, where he was kept in a holding cell for approximately five hours, without
13being allowed access to a bathroom or being given food or drink. (See id. ¶¶ 55-57,
1479.)
15Being thrown into the van had caused Lynch immediate pain in his neck
16and upper and lower back, and he "felt and heard cracking." (Complaint ¶ 54.) He
17later experienced sciatica and required spinal epidural injections, a medial branch
18block, and a radio frequency ablation. (See id. ¶ 86.)
19
6

12. The Charges Against Lynch
2Lynch was eventually released from police custody but was given three
3summonses, each signed by Mandy under penalty of perjury (the "Lynch
4Summonses"). One summons accused Lynch of disorderly conduct in violation of
5N.Y. Penal Law § 240.20(5) (the "240.20(5) Summons"), charging as follows:
6At time + place of occurrence (opposite 123 West 104
th
Street
7at 8:47 p.m. on 6/22/15), I personally observed [Lynch], with the
8intent to cause public inconvenience, annoyance and alarm,
9obstruct vehicular traffic by standing directly in front of a gray Toyota
10Camry NY Plate CLC 4505, and did [sic] prevent the vehicle and
11other traffic from continuing eastbound from the midblock
12location.
13(Complaint ¶ 60 (emphases added); see also id. ¶ 59.) Another summons accused him
14of disorderly conduct in violation of N.Y. Penal Law § 240.20(6) (the "240.20(6)
15Summons"), charging as follows:
16At time + place of occurrence (opposite 123 West 104
th
Street
17at 8:47 p.m. on 6/22/15), I personally observed [Lynch], with the
18intent to cause public inconvenience annoyance, + alarm, walking
19in the middle of the street, to wit west 104
th
Street between Columbus
20and Amsterdam Avenues congregating with a group of others. [Lynch]
21was told by undersigned to move to an accessible sidewalk and he refused
22to do so, continuing westbound on the street.
23(Complaint ¶ 67 (emphases added); see also id. ¶ 66) A third summons accused Lynch
7

1of violating N.Y. Vehicle and Traffic Law § 1156(a) (the "VTL § 1156(a) Summons"),
2charging:
3At time and place of occurrence indicated herein (opposite 123
4West 104
th
Street at 8:47 p.m. on 6/22/15) I personally observed
5[Lynch] walking in the middle of the road on West 104
th
Street between
6Columbus and Amsterdam and [sic] Avenues. Sidewalks were
7available adjacent to the roadway. Available sidewalks were safe
8to traverse at the time of incident.
9(Complaint ¶ 74 (emphasis added); see also id. ¶ 73.)
103. The Complaint's Principal Factual Assertions as to June 22
11The Complaint asserted that none of the above charges was true. As to
12the 240.20(5) Summons, which stated that near 123 W. 104th Street Lynch had stood
13directly in front of a certain Toyota to block vehicular traffic, the Complaint alleged,
14inter alia, that Lynch "did not obstruct any vehicular traffic" (Complaint ¶ 63), and that
15"[o]ther than crossing the street from one sidewalk to the other sidewalk at W. 104
th
Street,
16Plaintiff RICHARD LYNCH was not in the roadway at that location" (id. ¶ 65 (emphases
17added)).
18As to the 240.20(6) Summons, which charged that Lynch had disobeyed
19Mandy's order to get out of the street and onto the sidewalk, the Complaint--having
8

1indicated that Lynch's initial encounter with Mandy occurred when she and another
2officer, without a word, grabbed him as he "was standing on the south sidewalk"
3at 104th Street (Complaint ¶ 53)--denied that Mandy had given him any such
4instruction:
570. Defendant MANDY never told Plaintiff to move to the
6sidewalk, and Plaintiff never refused to move to the sidewalk.
771. Defendant MANDY never said anything at all to
8Plaintiff RICHARD LYNCH prior to brutalizing him and falsely
9arresting him.
1072. Other than crossing the street from one sidewalk to the other
11sidewalk at W. 104
th
Street, Plaintiff RICHARD LYNCH was not in the
12roadway at that location.
13(Complaint ¶¶ 70-72 (emphases added).)
14As to the VTL § 1156(a) Summons, which stated that Mandy observed
15Lynch walking in the middle of West 104 Street, the Complaint again alleged that
16[o]ther than crossing the street from one sidewalk to the other
17sidewalk at W. 104
th
Street, Plaintiff RICHARD LYNCH was not
18in the roadway at that location.
19(Id. ¶ 76.)
20
9

14. The Termination of the Prosecution of Lynch
2In January 2016, after Lynch had been required to appear in criminal
3court on four occasions to defend against the above charges, all charges against him
4were dismissed.
5B. The District Court's Dismissal of the Present Action
6The present action was commenced in September 2016 against the City,
7Delarosa, Mandy, and Lombardo, asserting, to the extent pertinent to this appeal, that
8the arrest of Lynch violated his rights under the United States Constitution and state
9law by subjecting him to, inter alia, false arrest, malicious prosecution, abuse of
10process, the use of excessive force, and infringement of his rights of free speech and
11equal protection. The amended complaint added Paverman as a defendant and
12alleged that, as an NYPD attorney, he had colluded with Delarosa, and "possibly
13with" Mandy, to fabricate false narratives for the summonses issued, respectively, to
14Rye and Lynch (Complaint ¶ 45). Defendants other than Paverman filed an answer
15(denying most of the Complaint's allegations), and all defendants moved to dismiss
16the action pursuant to Rules 12(b)(6) and 12(b)(c).
10

1In a Memorandum and Order dated March 27, 2018, see Lynch v. City of
2New York, No. 16-cv-7355, 2018 WL 1750078 (S.D.N.Y. Mar. 27, 2018) ("Lynch"), the
3district court granted the motion. To the extent pertinent to Lynch, the court ruled
4that the claims asserted against Paverman were insufficient because they were based
5on bare and conclusory assertions. See Lynch, 2018 WL 1750078, at *4 ("The claims
6against Paverman are dismissed because the allegations in the Am. Compl. fail to
7raise a right to relief above the speculative level." (internal quotation marks omitted)).
8As to the other defendants, the court ruled that Lynch "fail[ed] to state
9federal law claims," principally because there was "probable cause to arrest Lynch for
10walking on the roadway when a sidewalk was available." Id. at *5, *6; see id. at *7
11("Lynch participated in the march, which was proceeding through the roadway, when
12sidewalks were available, even after officers gave a lawful order to disperse."). The
13court concluded that "[a]ccordingly . . . there was probable cause to make an arrest"
14id. at *7, and "probable cause vitiates several of [Lynch's] claims for relief," id. at *5;
15see also id. at *7-*9 (finding that Lynch's federal claims failed because NYPD officers
16had probable cause to arrest him for his conduct during the march).
17Judgment was entered dismissing the Complaint in its entirety.
11

1II. DISCUSSION
2On appeal, Lynch contends principally that the district court erred in
3failing to accept the factual allegations in his Complaint as true, and instead assuming
4the truth of the assertions made in the summonses issued by Mandy. For the reasons
5that follow, we agree that Lynch adequately stated claims against Mandy and the
6City; we conclude that the Complaint was insufficient to state claims against the other
7defendants.
8A. Principles Governing Motions Under Rules 12(b)(6) and 12(c)
9Two well established sets of principles are material to this appeal: one
10concerns the standards a complaint must meet in order to avoid dismissal on a
11motion arguing lack of legal sufficiency; the other concerns the standards by which
12the court is to judge the complaint in considering such a motion.
131. What the Plaintiff Must Do
14Rule 8 of the Federal Rules of Civil Procedure requires, inter alia, that a
15pleading seeking relief "must contain . . . a short and plain statement of the claim
12

1showing that the pleader is entitled to relief." Fed. R. Civ. P. 8(a)(2). "To survive a
2motion to dismiss, a complaint must contain sufficient factual matter, accepted as
3true, to 'state a claim to relief that is plausible on its face.'" Ashcroft v. Iqbal, 556 U.S.
4662, 678 (2009) ("Iqbal") (quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007)
5("Twombly")). "A claim has facial plausibility when the plaintiff pleads factual content
6that allows the court to draw the reasonable inference that the defendant is liable for
7the misconduct alleged." Iqbal, 556 U.S. at 678.
8[O]nly a complaint that states a plausible claim for relief survives
9a motion to dismiss. [Twombly, 550 U.S.] at 556. Determining
10whether a complaint states a plausible claim for relief will . . . be
11a context-specific task that requires the reviewing court to draw
12on its judicial experience and common sense. . . . But where the
13well-pleaded facts do not permit the court to infer more than the
14mere possibility of misconduct, the complaint has alleged--but it has
15not "show[n]"--"that the pleader is entitled to relief." Fed. Rule
16Civ. Proc. 8(a)(2).
17Iqbal, 556 U.S. at 679 (emphasis added). To present a plausible claim, the "pleading
18must contain something more . . . than . . . a statement of facts that merely creates a
19suspicion [of] a legally cognizable right of action." Twombly, 550 U.S. at 555 (internal
20quotation marks omitted).
13

12. What the Courts Must Do
2The court, in deciding a Rule 12(b)(6) motion to dismiss a complaint, is
3required to accept all "well-pleaded factual allegations" in the complaint as true. Iqbal,
4556 U.S. at 679; see Twombly, 550 U.S. at 555; Arar v. Ashcroft, 585 F.3d 559, 567 (2d Cir.
52009) (en banc) ("Arar"), cert. denied, 560 U.S. 978 (2010). Although allegations that are
6"conclusory" are "not entitled to be assumed true," Iqbal, 556 U.S. at 681; see, e.g.,
7Twombly, 550 U.S. at 554-55, "[w]hen there are well-pleaded factual allegations, a court
8should assume their veracity and then determine whether they plausibly give rise to an
9entitlement to relief," Iqbal, 556 U.S. at 679 (emphasis added); see also id. at 678 (a court
10is "not bound to accept as true a [pleading's] legal conclusion," but "for the purposes
11of a motion to dismiss [it] must take all of the factual allegations in the complaint as
12true"). The court must also "construe all reasonable inferences that can be drawn
13from the complaint in the light most favorable to the plaintiff." Arar, 585 F.3d at 567;
14see, e.g., Iqbal, 556 U.S. at 678; Nicosia v. Amazon.com, Inc., 834 F.3d 220, 230 (2d Cir.
152016). "The standard for granting a Rule 12(c) motion for judgment on the pleadings
16is identical to that [for granting] a Rule 12(b)(6) motion for failure to state a claim."
17Patel v. Contemporary Classics, 259 F.3d 123, 126 (2d Cir. 2001).
14

1The assessment of whether a complaint's factual allegations plausibly
2give rise to an entitlement to relief "does not impose a probability requirement at the
3pleading stage; it simply calls for enough fact to raise a reasonable expectation that
4discovery will reveal evidence of illegal" conduct. Twombly, 550 U.S. at 556; see Iqbal,
5556 U.S. at 678 ("The plausibility standard is not akin to a probability requirement, but
6it asks for more than a sheer possibility that a defendant has acted unlawfully."
7(internal quotation marks omitted)).
8Thus, the court's task is to assess the legal feasibility of the complaint; it
9is not to assess the weight of the evidence that might be offered on either side:
10Because plausibility is a standard lower than probability, a
11given set of actions may well be subject to diverging
12interpretations, each of which is plausible. See generally Anderson
13v. Bessemer City, 470 U.S. 564, 575, 105 S.Ct. 1504, 84 L.Ed.2d 518
14(1985) ("two or more witnesses" may tell mutually inconsistent but
15"coherent and facially plausible stor[ies]"). The choice between or
16among plausible inferences or scenarios is one for the factfinder
17. . . .
18The choice between two plausible inferences that may be
19drawn from factual allegations is not a choice to be made by the
20court on a Rule 12(b)(6) motion.
21Anderson News, L.L.C. v. American Media, Inc., 680 F.3d 162, 184-85 (2d Cir. 2012)
22("Anderson News"), cert. denied, 568 U.S. 1087 (2013); see, e.g., Todd v. Exxon Corp., 275
15

1F.3d 191, 203 (2d Cir. 2001) ("fact-specific question[s] cannot be resolved on the
2pleadings"). "Rule 12(b)(6) does not countenance . . . dismissals based on a judge's
3disbelief of a complaint's factual allegations." Twombly, 550 U.S. at 556 (internal
4quotation marks omitted).
5 Whether a complaint alleges sufficient facts to show the plaintiff's
6entitlement to relief is a question of law, which we consider de novo. See, e.g., PHL
7Variable Insurance Co. v. Town of Oyster Bay, 929 F.3d 79, 89 (2d Cir. 2019); Rothstein v.
8UBS AG, 708 F.3d 82, 90 (2d Cir. 2013); Anderson News, 680 F.3d at 185; Arar, 585 F.3d
9at 567; De Jesus v. Sears, Roebuck & Co., 87 F.3d 65, 69 (2d Cir. 1996). Thus, as is true
10of the district court, we are not to give effect to a complaint's assertions of law or legal
11conclusions couched as factual allegations; we are to accept well pleaded factual
12assertions as true; and we are to draw all reasonable factual inferences in favor of the
13plaintiff.
14B. Lynch's Complaint
15Application of these principles here requires focused attention to the
16Complaint's allegations with respect to each defendant, see generally Iqbal, 556 U.S.
17at 684.
16

11. Against Mandy
2The district court found that "there was . . . probable cause to arrest
3Lynch" because he was "walking on the roadway when a sidewalk was available,"
4Lynch, 2018 WL 1750078, id. at *6, and because, "Lynch participated in the march,
5which was proceeding through the roadway, when sidewalks were available, even
6after officers gave a lawful order to disperse," id. at *7; see also id. at *6 (noting that the
7existence of probable cause for arrest on any one ground suffices to defeat claims such
8as false arrest). The court noted the Complaint's acknowledgement that there were
9"'a large number of'" marchers and that "'member(s) of the NYPD directed some of the
10marchers to get out of the roadway during the course of the march,'" id. at *11 (quoting
11Complaint ¶¶ 12, 15) (emphases ours), and inferred that Lynch had been so directed
12and had refused to comply with that order, see Lynch, 2018 WL 1750078, at *11. These
13findings did not comport with the proper standards.
14First, the Complaint's quoted allegations in ¶¶ 12 and 15 as to
15instructions given "during" the march to "some" marchers were entirely unspecific as
16to persons, place, or time. They did not warrant the court's inference that Lynch was
17one of the marchers given such an instruction, or that it was given to him--as Mandy
18asserted as the basis for his arrest--at around 8:47 p.m. on W. 104th Street. Indeed,
17

1given the Complaint's allegation in ¶ 70 (that Lynch "never refused to move to the
2sidewalk" (emphasis added)), which the court was required to accept as true, the
3court was required to infer that the instruction referred to in ¶ 15 either was not given
4to Lynch or was not disobeyed by Lynch.
5Second, the court's analysis of probable cause to arrest Lynch was flawed
6by the fact that it also overlooked other factual allegations in the Complaint as to the
7conduct of Lynch that were contrary to Mandy's assertions in the Lynch Summonses.
8Those summonses (each of which was quoted by the district court, see Lynch, 2018
9WL 1750078, at *3) charged that at 8:47 p.m. opposite 123 W. 104th Street, Lynch (1)
10was standing in front of a Toyota with the intent to cause public inconvenience and
11obstruct vehicular traffic, (2) was walking in the middle of the street, and (3) was
12walking and congregating with others in the middle of the street and refusing
13Mandy's order to move to the sidewalk. In contrast, the Complaint not only alleged
14that Lynch "did not obstruct any vehicular traffic" (Complaint ¶ 63), that "Mandy
15never told [Lynch] to move to the sidewalk" (id. ¶ 70), and that "[Lynch] never refused
16to move to the sidewalk" (id.), but also alleged, as noted in Part I.A.3. above, that
17[o]ther than crossing the street from one sidewalk to the other
18sidewalk at W. 104
th
Street, Plaintiff RICHARD LYNCH was not
19in the roadway at that location
20(id. ¶¶ 65, 72, 76).
18

1In the district court's decision, paragraphs 63, 65, 70, 72, and 76 were not
2discussed or cited; none of their factual allegations as to Lynch's own conduct was
3ever mentioned. Those allegations were required to be accepted as true for purposes
4of deciding defendants' Rule 12(b)(6) and 12(c) motions to dismiss. As thus accepted,
5they precluded any finding that the Lynch Summonses showed probable cause for
6Lynch's arrest as a matter of law.
7We conclude that the district court erred in granting defendants' motion
8to dismiss Lynch's claims against Mandy.
92. Against Delarosa
10The Complaint did not, however, assert any viable claims on behalf of
11Lynch against Delarosa. While asserting that Delarosa had thrown Rye to the
12ground, had signed three summonses against Rye, and had colluded with Paverman
13to make false accusations against Rye, it contained no allegations connecting Delarosa
14to the arrest or treatment of Lynch. There is only one paragraph of the Complaint
15that mentions both Delarosa and Lynch, and its thrust is to accuse Paverman of
16colluding with Delarosa and accuse Paverman of "possibly" colluding with Mandy
17(see Part II.B.4. below). There are no factual allegations that there was any conduct
19

1constituting infringement of Lynch's rights by Delarosa. Any purported claims by
2Lynch against Delarosa were properly dismissed.
33. Against Lombardo
4The Complaint also failed to assert any viable claims on behalf of Lynch
5against Lombardo. It alleged that Lombardo headed a task force that responded to
6public demonstrations (see Complaint ¶ 78); that he has a reputation for being hostile
7to the rights of demonstrators (see id. ¶ 85); that Lynch "sometimes goes by the name
8/ title 'the Angry Pacifist'" (id. ¶ 82); that Lombardo has "know[n] [Lynch] well, for a
9long time, and engaged in a stare-down with [Lynch] at the precinct" (id. ¶ 81); and
10it alleged only conclusorily that Lombardo and the other defendants "fail[ed] to
11protect the plaintiffs from the unjustified and unconstitutional treatment they
12received at the hands of other defendants" (id. ¶ 94), and "fail[ed] to properly train,
13supervise, or discipline their subordinates" (id. ¶ 97). There is no factual allegation
14that Lombardo was involved in the arrest of Lynch or in the preparation of the Lynch
15Summonses, or that Mandy was among the officers supervised by Lombardo.
16The Complaint also alleged that Lynch, who was detained at the precinct
17for some five hours before being released (see Complaint ¶ 57), was informed by one
20

1officer that Lombardo instructed that Lynch be denied food, drink, and access to a
2bathroom (see id. ¶¶ 79, 80), and implied that such an instruction may have been
3intended as punitive, given Lombardo's alleged hostility to demonstrators in general
4and to Lynch in particular (see id. ¶¶ 85, 81). An arrestee who has not been adjudged
5guilty of a crime is of course entitled to due process and cannot properly be subjected
6to punishment. See, e.g., Bell v. Wolfish, 441 U.S. 520, 535 (1979). But "[n]ot every
7disability imposed during pretrial detention amounts to 'punishment' in the
8constitutional sense," id. at 537; there is "a de minimis level of imposition with which
9the Constitution is not concerned," id. at 539 n.21 (quoting Ingraham v. Wright, 430 U.S.
10651, 674 (1977)).
11While the Complaint alleged that Lynch suffered various serious medical
12consequences from being thrown into the van during his arrest (see id. ¶ 86), it
13contains no allegation that he made a request for or had any need for food, drink, or
14access to a bathroom--and no allegation that the lack of those accommodations for the
15several hours he was detained had any untoward consequences whatsoever. Lynch's
16allegations did not rise above the de minimis level to indicate a deprivation of
17constitutional dimension.
21

1We conclude that the Complaint was properly dismissed insofar as it
2purported to assert claims on behalf of Lynch against Lombardo.
34. Against Paverman
4Paverman, an attorney in the NYPD Legal Bureau Agency ("Legal
5Bureau"), was not named as a defendant in the original complaint but was added in
6the amended complaint. In the amended complaint, other than two paragraphs
7asserting that Paverman (along with other defendants) had failed to protect plaintiffs
8from the violations by other defendants (see Complaint ¶ 94) and had "fail[ed] to
9properly train, supervise, or discipline their subordinates" (id. ¶ 97), the allegations
10as to Paverman were as follows:
1145. On information and belief, Defendant PAVERMAN
12colluded with Defendant DELAROSA to construct false allegations
13as to what Defendant DELAROSA had allegedly "personally
14observed" Plaintiff VIENNA RYE do to supposedly justify her
15arrest (and possibly with Defendant MANDY to construct false
16allegations as to what Defendant MANDY had allegedly "personally
17observed" Plaintiff RICHARD LYNCH do to supposedly justify his
18arrest).
19(Id. ¶ 45 (emphases added).)
22

1The district court dismissed the claims against Paverman on the ground
2that the allegations against him "fail[ed] to raise a right to relief above the speculative
3level." Lynch, 2018 WL 1750078, at *4 (internal quotation marks omitted)). Based on
4the allegations in the Complaint, we have no difficulty with this conclusion. The
5charges in ¶¶ 94 and 97 that Paverman failed to protect plaintiffs and failed to train,
6supervise, or discipline his subordinates are conclusory. And as to the contention
7that Mandy made false statements in the Lynch Summonses, the Complaint's
8allegation of participation by Paverman was both conclusory and literally speculative,
9alleging only that Paverman "colluded . . . possibly with Defendant MANDY"
10(Complaint ¶ 45 (emphasis added)). An allegation merely that something "possib[l]y"
11happened does not qualify as a "well-pleaded factual allegation[]," whose "veracity"
12the court "should assume." Iqbal, 556 U.S. at 679; see id. at 678 (the allegation of a mere
13"possibility" falls on the ineffective side "of the line between possibility and
14plausibility of 'entitlement to relief'" (quoting Twombly, 550 U.S. at 557)).
15On appeal, Lynch states that the amended complaint's ¶ 45 allegation
16linking Paverman with Mandy was based on a June 22, 2015 entry in a memo book
17maintained by Delarosa, produced to plaintiffs by defendants as part of the limited
18discovery that followed the filing of the original complaint. (See Lynch brief on
23

1appeal at 6-7.) Lynch describes that Delarosa entry for 9:50 p.m. on June 22 as
2follows:
3"As per PO Mandy & Cpt [Captain] Lombardo a consultation with
4Agency Attorney Paverman, Less [Lester] was conducted
5regarding" and the next line and 3/4 is redacted based upon the
6attorney-client privilege.
7(Lynch brief on appeal at 23 (quoting Delarosa memo book) (brackets in brief).)
8Lynch argues that the facts that Delarosa (a) recorded that he consulted with
9Paverman some 10 minutes before he signed his summonses against Rye, and (b)
10referred to Mandy in the same way--"As per PO Mandy"--permit the inference that
11Paverman participated in Mandy's preparation of her allegedly false statements in the
12Lynch Summonses. Lynch contends that the district court should have deemed these
13factual statements in the Delarosa memo book to be part of, and "'integral to,'" the
14Complaint (see Lynch brief on appeal at 6-8 & n.4, 23), quoting International Audiotext
15Network, Inc. v. AT&T, 62 F.3d 69, 72 (2d Cir. 1995) ("Audiotext"). We are unpersuaded.
16It is well established that a pleading is deemed to include any "written
17instrument" that is attached to it as "an exhibit," Fed. R. Civ. P. 10(c), or is
18incorporated in it by reference, see, e.g., Cortec Industries, Inc. v. Sum Holding L.P., 949
19F.2d 42, 47 (2d Cir. 1991); Goldman v. Belden, 754 F.2d 1059, 1065-66 (2d Cir. 1985).
24

1And even if the "plaintiff chooses not to attach" an instrument "to the complaint or
2[to] incorporate [it] by reference," if it is one "upon which" the plaintiff "solely relies
3and which is integral to the complaint," the court may take the document into
4consideration in deciding the defendant's motion to dismiss. Audiotext, 62 F.3d at 72
5(internal quotation marks omitted). However, Lynch's reliance on these principles
6is misplaced. The term "written instrument" generally refers to "a 'legal document
7that defines rights, duties, entitlements, or liabilities, such as a statute, contract, will,
8promissory note, or share certificate[,]' Black's Law Dictionary (10th ed.2014)." Smith
9v. Hogan, 794 F.3d 249, 254 (2d Cir. 2015). Thus, we view "the types of exhibits
10incorporated within the pleadings by Rule 10(c)" as "consist[ing] largely of . . .
11contracts, notes, and other writing[s] on which [a party's] action or defense is based."
12Id. (internal quotation marks omitted).
13Lynch might not have been aware of any conversation between Mandy
14and Paverman but for defendants' production of Delarosa's record, and that record
15would constitute some evidence that a conversation between the two occurred. But
16unlike the document at issue in Audiotext--an agreement of a type that the antitrust
17defendant had with another party but refused to enter into with the plaintiff, see
18Audiotext, 62 F.3d at 71--the Delarosa record plainly is not an "instrument" on which
25

1Lynch can rely as defining rights, duties, entitlements, or liabilities. And Delarosa's
2cryptic note mentioning Mandy, while perhaps providing a lead to evidence that
3might support Lynch's claim against Paverman for a fraudulent collaboration with
4Mandy, is not "integral" to that claim, which does not depend on there being written
5evidence that a meeting occurred.
6We see no error in the district court's dismissal of Lynch's claims against
7Paverman.
85. Against the City
9Plaintiffs sought to hold the City liable for their injuries, alleging that the
10individual defendants' violations of their rights resulted from de facto policies,
11practices, customs, and usages of the City, through NYPD (see, e.g., Complaint ¶ 101),
12principally by having police officers "mak[e] false statements concerning" their
13observations of "demonstration-related arrestees and the circumstances of their
14arrests" (id. ¶ 105) (the alleged "False Observation" practice). See 42 U.S.C. § 1983
15(imposing liability for violation of federal rights "under color of any statute,
16ordinance, regulation, custom, or usage, of any State"); Monell v. Department of Social
17Services, 436 U.S. 658, 691 (1978) ("persistent and widespread . . . practices of state
26

1officials," even if "not authorized by written law, . . . could well be so permanent and
2well settled as to constitute a 'custom or usage' with the force of law").
3The district court dismissed the municipal liability claims on the grounds
4that the Complaint--which it characterized as "conclusory" and making merely
5"boilerplate assertions" of municipal custom or policy--both lacked adequate
6allegations of any violations of plaintiffs' constitutional rights and failed to allege a
7causal link between an official policy or custom and the claimed violations. Lynch,
82018 WL 1750078, at *13-*14. The court found that "Plaintiffs allege[d] no facts to
9indicate any deliberate choice by municipal policymakers to engage in
10unconstitutional conduct," and that they alleged "that the Municipal Defendants acted
11pursuant to 'de facto policies, practices, customs, and usages' without any facts suggesting
12the existence of the same." Id. at *14 (emphases added).
13For the reasons set out in Part II.B.1. above, the court's first rationale--that
14the Complaint failed to state viable claims against any individual defendant--was
15erroneous as to the claims of Lynch against Mandy. The Complaint contained well-
16pleaded allegations of fact as to Lynch's conduct that, if accepted as true, precluded
17the court's rejection of his claims on the ground that there was probable cause for his
18arrest. The court's second rationale is undercut both by the above error in failing to
27

1recognize that Lynch adequately pleaded claims against Mandy, and, as discussed
2next, by the fact that its assessment of the Complaint's City policy allegations
3principally applied standards that are applicable to post-pleading stages of
4adjudication, rather than applying the Twombly-Iqbal plausibility standard.
5The Complaint, in asserting that plaintiffs had been arrested as a result
6of the City's alleged False Observation practice, set out--largely in a single paragraph
7(¶ 105) spanning 10 pages--facts designed to show a past and persistent False
8Observation practice. It alleged generally that
9[a]rresting officers have been told--on a number of prior occasions by
10attorneys within the NYPD's Legal Bureau--to lie that they had
11"personally observed" a demonstration-related arrestee do certain
12acts, when the arresting officer in fact had never personally observed the
13arrestee do those acts.
14(Complaint ¶ 105, pp. 17-18 (emphases added).) In support of these allegations, the
15Complaint alleged, inter alia, that the City had engaged in False Observation practices
16when mass arrests were made during demonstrations in connection with the
17Republican National Convention in 2004; and that in the ensuing litigation in
18MacNamara v. City of New York, No. 04-cv-9216 (S.D.N.Y.) ("MacNamara"), one NYPD
19officer, Officer Cai, gave deposition testimony (quoted in Complaint ¶ 105, pp. 19-23),
20contrasting his actual observations at the demonstrations with the observations that
28

1he was instructed to, and did, describe in his NYPD arrest records, including
2# that an NYPD Legal Bureau lieutenant had "give[n him] the
3words [he] should use to write" in his "memo book," in his "online
4booking sheet," to make entries stating that demonstrators had forced
5pedestrians into the street, although in fact he did not "see any
6pedestrians at any point forced from the sidewalk onto the street" (id.
7¶ 105, p. 19);
8# that the Legal Bureau lieutenant had instructed him to state in
9his memo book that a certain NYPD captain had given an order to
10disperse, although in fact he "did not hear" that captain "give any orders
11to disperse" (id. ¶ 105, p. 20);
12# that the Legal Bureau lieutenant first asked Officer Cai "about
13what [he] saw and what was taking place at the particular time and
14location" and "then told [him] what to write in the narrative portion on
15the online booking sheet and in [his] memo book" (id.);
16# that the Legal Bureau lieutenant "recite[d] to [him] the words
17that [he] should write down, and [he] wrote it down as they [sic] said the
18words" (id.);
19# that Officer Cai wrote that demonstrators "marched on the
20sidewalk" but he did not "ever see them on the sidewalk" (id. ¶ 105,
21p. 22-23); and
22# that "[t]hat's the story they told us to write, the legal bureau. . . .
23I told them[] what happened, what I saw. They were like, this is the form
24that you're going to be writing." (Id. ¶ 105, p. 23 (emphases ours).)
25The Complaint alleged that two federal judicial officers in MacNamara
26characterized Cai's testimony as at least
29

1"disturbing." Indeed, one reasonable interpretation of Officer
2Cai's testimony is that he included false information in the
3narrative section of his booking report because he was instructed
4to do so by a Lieutenant in the NYPD Legal Bureau. More
5disturbing still, Officer Cai's testimony appears to indicate that this
6unlawful act was not an isolated incident.
7(Complaint ¶ 105, p. 18 (quoting MacNamara, No. 04-cv-9216, Dkt. No. 213 (Order of
8Karas, D.J., at 1-2 (S.D.N.Y. Sept. 21, 2007) (quoting Francis, M.J.))) (emphasis ours).)
9A later opinion similarly stated that
10Cai's testimony . . . can be construed as indicating that [he]
11recorded events that he did not witness as if he had personally
12observed them. That could well constitute a fraud, since
13subsequent participants in the arrest procedure--and ultimately
14the criminal court--would be expected to rely on the accuracy and
15reliability of the arresting officer's narrative.
16MacNamara, 2007 WL 3196295, at *2, 2007 US Dist. LEXIS 79870, at *8 (Memorandum
17and Order of Francis, M.J., S.D.N.Y. Oct. 30, 2007).
18The Complaint also alleged that the City's False Observation practice was
19ongoing. It described five lawsuits that were pending when the Complaint was filed
20in March 2017, in which those plaintiffs alleged that a Legal Bureau attorney had
21participated in the creation of false records as to the arresting officer's observations
22in the so-called Occupy Wall Street ("OWS") demonstrations in 2011 and 2012. The
23Complaint noted that in two of those actions the court had declined to dismiss false
30

1arrest claims against Legal Bureau attorneys (see Complaint ¶ 105, p. 24); that in a
2third action the court had reinstated a denial-of-fair-trial claim against a Legal Bureau
3attorney (id. ¶ 105, p. 25); that in a fourth action the record on a motion for summary
4judgment was sufficient to establish that arresting officers, as a result of their
5meetings with Legal Bureau, had created false processing paperwork (id.); and in the
6fifth action, the arresting officer "testified that an NYPD Legal Bureau attorney told him
7what to write 'word for word' in his arrest processing paperwork, as a result of which he
8created arrest processing paperwork containing false statements" (id. ¶ 105, pp. 25-26
9(emphasis ours)).
10In dismissing the present case, the district court summarily rejected the
11Complaint's proffer of these "numerous litigations as evidence of the 'official policy'
12element" of municipal liability claims, stating, inter alia, that
13the Court of Appeals has stated that "citation to various lawsuits
14. . . [is] not probative of the existence of an underlying policy." Jean-
15Laurent v. Wilkerson, 461 F. App'x 18, 23 (2d Cir. 2012); see
16Mediavilla v. City of N.Y., 259 F.Supp.3d 82, 110 (S.D.N.Y. 2016)
17(holding that "references to other litigations are insufficient to
18establish the requisite policy or practice required to sustain Monell
19claims.").
20Lynch, 2018 WL 1750078, at *14 (emphasis ours). Reliance on these cited decisions was
31

1inapt, however, because they dealt with motions for summary judgment and proffers
2of proof, not with motions under Rules 12(b)(6) or 12(c).
3The district court also refused to consider the alleged facts to which
4Officer Cai testified in his deposition in MacNamara, to wit, that he had been
5instructed by the Legal Bureau to state, as grounds for arrests, that he had observed
6acts and conduct that he in fact had not seen. As to this, the court stated that
7"deposition testimony taken in a different action is only admissible if the present action
8involves the same subject matter and the same parties." Lynch, 2018 WL 1750078,
9at *14 (internal quotation marks omitted) (emphasis ours). Admissibility, however,
10is an issue for trial or summary judgment; in order to state a claim that is sufficiently
11plausible to avoid dismissal at the pleading stage, the fact asserted need not be
12presented in a form that would be admissible at trial. The plausibility standard
13"simply calls for enough fact to raise a reasonable expectation that discovery will
14reveal evidence of illegal" conduct. Twombly, 550 U.S. at 556. The extensively quoted
15deposition testimony of Cai in MacNamara--and the allegation that there was similar
16testimony by an arresting officer in one of the OWS cases--made it plausible that the
17City had engaged in the alleged False Observation practice in 2004 and 2011.
32

1We note that the Complaint's allegations of the Cai testimony or of the
2OWS litigation allegations, might not, if viewed piecemeal, be sufficient to state a
3plausible claim that the City had a False Observation practice in 2015 when Lynch
4was arrested. The testimony of Officer Cai concerned events that occurred in 2004
5and that were criticized in publicly filed court decisions, including at least one
6published opinion, in 2007. It might therefore be implausible to infer from the 2004
7events alone that the City would have continued such a practice after public judicial
8criticism in 2007. And even the description of the 2017 pendency of OWS lawsuits,
9to the extent that the Complaint cited merely allegations as to NYPD's engagement
10in the False Observation practice in 2011-2012, would likely not suffice on their own
11as plausible indicia that the practice described by Cai had continued, because stating
12that certain conduct has been alleged is not a statement that it in fact occurred.
13However, as to the plausibility of the Complaint's allegations that the
14False Observation practice also existed in 2015 and resulted in the arrest of Lynch, we
15view the allegations of the Complaint in combination rather than piecemeal; and we
16conclude that the Complaint was sufficient when taken as a whole. Accepting as true
17the Complaint's allegations that the City at least in 2004 and seven or eight years
18thereafter in fact engaged in the False Observation practice and that at least two
33

1NYPD officers have so testified, the Complaint plausibly allows the inference that
2notwithstanding the 2007 publicly recorded judicial criticisms of that practice, the
3City knowingly did not end that practice. Since the facts alleged in the Complaint as
4to the conduct of Lynch, if accepted as true, mean that the Lynch Summonses signed
5by Mandy contained false statements as to her observations, an inference favorable
6to Lynch may reasonably be drawn that the false statements by Mandy resulted from
7a continuation of the City's False Observation practice.
8We conclude that Lynch's claims against the City should be reinstated.
9CONCLUSION
10We have considered all of the parties' arguments in support of their
11respective positions on this appeal and, for the reasons discussed above, have found
12them to be without merit except as indicated. Lynch's claims against Mandy--and the
13City--that either were viable only if there was no probable cause for his arrest, or were
14dependent on a resolution of the factual dispute as to what circumstances confronted
15the officers who participated in Lynch's arrest, were erroneously dismissed. We leave
16it to the district court, taking account of Complaint allegations of Lynch's conduct that
34

1were previously overlooked, to revisit such claims as do not directly turn on issues
2of whether probable cause existed or on which side's version of the existing factual
3circumstances is correct.
4The judgment as to Lynch is affirmed insofar as it dismissed pursuant
5to Rule 12(b)(6) or Rule 12(c) his claims against defendants other than Mandy and the
6City. To the extent that it dismissed his claims against Mandy and the City, the
7judgment is vacated, and the matter is remanded for further proceedings.
35