Capers v. The City of New York et al

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UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
----------------------------------------------------x
SHAMEL CAPERS,
Plaintiff,
v.
THE CITY OF NEW YORK, DANIEL
GALLAGHER, ANTHONY FARANDA,
PETER GALASSO, and JOHN/JANE
DOES 1–25,
Defendants.
----------------------------------------------------x
MEMORANDUM AND ORDER
24-CV-1219 (RPK) (CLP)
RACHEL P. KOVNER, United States District Judge:
Shamel Capers brings this action alleging that he was wrongfully convicted of a murder
after law enforcement officers fabricated evidence against him and prosecutors from the Queens
County District Attorney’s Office (“QCDAO”) failed to disclose exculpatory evidence. He sues
three named police detectives as well as the City of New York. The City has moved to dismiss
two of plaintiff’s claims against it: a claim for municipal liability under 42 U.S.C. § 1983 and a
claim for negligence under state law. As explained below, the City’s motion is granted.
BACKGROUND
The following facts are taken from the amended complaint and are assumed true for
purposes of this order.
In May 2013, a fourteen-year-old girl named D’Aja Robinson was shot and killed while
riding in a New York City bus. 	See Am. Compl. ¶ 1 (Dkt. #33). 	In the days after the murder,
eyewitnesses identified Kevin McClinton as the shooter. See id. ¶ 2. Approximately two weeks
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after the shooting, McClinton was arrested in Cayce, South Carolina. 	See id. ¶ 3. McClinton
claimed following his arrest that plaintiff had shot Robinson. See id. ¶ 48.
Plaintiff’s central claims in this lawsuit are that individual defendants Daniel Gallagher,
Anthony Faranda, and Peter Galasso—all detectives of the New York City Police Department
(“NYPD”)—caused the presentation of false evidence that plaintiff was involved in the shooting,
including by telling witnesses what they should say about plaintiff’s role, see id. ¶¶ 12, 99, 113–
15, and by coercing plaintiff to say that he had fled to South Carolina along with McClinton, see
id. ¶¶ 12, 15, 51, 86. Plaintiff alleges that these defendants and prosecutors from the QCDAO then
failed—in violation of Brady v. Maryland, 373 U.S. 83 (1963)—to disclose exculpatory evidence
in advance of the trial that led to plaintiff’s conviction for murder. Am. Compl. ¶¶ 12–13, 138,
139–89. Plaintiff alleges that all the individual defendants were acting within the scope of their
employment and under the color of law when they committed the acts alleged in the complaint.
Id. ¶ 23.
With respect to his claims about the coaching of witnesses, plaintiff alleges that in April
2014, Lael Jappa, an associate of McClinton’s and an eyewitness at Robinson’s murder, was
arrested on felony charges. See id. ¶ 56. Jappa met with prosecutors from the QCDAO and entered
into a cooperation agreement “in exchange for significant leniency at his sentencing.” Ibid. “Other
than two very short reports” describing Jappa identifying photographs of McClinton and plaintiff,
“there are no notes or reports that document” what Jappa told the QCDAO about “Robinson’s
murder or any other topic during” their meetings.” Id. ¶ 57. In May 2015, Jappa testified before
the grand jury that indicted plaintiff for Robinson’s murder. 	Id. ¶ 60, 62. 	He testified that
McClinton had introduced him to plaintiff at a community gathering the day of the murder near
where the shooting occurred, that plaintiff was carrying a firearm at the time, and that he later saw
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plaintiff “shoot a gun in the direction of the bus.” 	Id. ¶ 62. 	Jappa also offered incriminating
testimony at plaintiff’s trial, telling the jury that plaintiff “was acting suspicious” and that he
“point[ed] a firearm toward the back of the bus.” Id. ¶¶ 76–80.
During a subsequent investigation by the QCDAO Conviction Integrity Unit, Jappa stated
that the version of events to which he testified at trial had been provided to him by “one or more
of [the] Individual Defendants” during his “meetings with the QCDAO.” Id. ¶ 99. He explained
that one or more of those defendants “ma[de] clear that [he] needed to reiterate that version to
secure a cooperation agreement.” Ibid. He also directed Conviction Integrity Unit investigators
to recorded phone calls he had made to his mother while incarcerated. 	Id. ¶¶ 99–100. 	During
those calls, which were in the possession of the QCDAO before and during plaintiff’s trial, Jappa
described his cooperation with prosecutors as “based on lies.” Id. ¶¶ 99–101.
Plaintiff alleges that Raquan Bryant also offered “[f]abricated [t]estimony” at his trial. Id.
at 18. 	He alleges that in May 2015 and August 2015, Bryant met with prosecutors from the
QCDAO. 	Id. ¶ 64. 	Like Jappa, Bryant faced multiple felony charges and entered into a
cooperation agreement in exchange for leniency at his sentencing. See ibid. Other than one report
describing Bryant’s identification of a photograph of plaintiff, there “are no notes or reports
documenting” what Bryant told the QCDAO during their meetings. Ibid. At plaintiff’s trial, Bryant
corroborated Jappa’s testimony that plaintiff attended a community gathering with McClinton the
day of the shooting and was carrying a firearm at the time. See id. ¶¶ 81–85.
Plaintiff was convicted at trial. Id. ¶ 89. He was sentenced to a term of imprisonment of
fifteen years to life. Id. ¶ 90.
Plaintiff’s conviction was investigated by the QCDAO Conviction Integrity Unit and
ultimately vacated. In addition to uncovering the evidence noted above that Jappa’s testimony had
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been fabricated, the Conviction Integrity Unit investigation identified other exculpatory evidence
that had been in QCDAO’s possession prior to plaintiff’s conviction, but that had not been
disclosed to plaintiff. This evidence included recorded phone calls McClinton placed in the days
after his arrest in which he “directed an associate to tell others that they needed to falsely implicate”
plaintiff, id. ¶¶ 102–03, and Facebook messages written by Bryant that contradicted his trial
testimony, see id. ¶¶ 104–07. At the request of the QCDAO and plaintiff’s attorneys, plaintiff’s
conviction was vacated based on newly discovered evidence. Id. ¶ 7.
Plaintiff alleges that the individual defendants’ misconduct was connected to the QCDAO
policies in several ways. 	First, he alleges that the district attorney and chief assistant district
attorney “maintained a policy, custom, and practice that expressly trained and directed [Assistant
District Attorneys] to ensure that virtually no notes were taken when interviewing potential trial
prosecution witnesses,” and that “[t]he purpose of this policy, custom, and practice was to make
sure that exculpatory or impeachment evidence of the prosecution’s testifying witnesses would not
be recorded so that such evidence would not be disclosed to the defense.” Id. ¶¶ 132–33. Plaintiff
alleges that as a result, the assistant district attorneys “who investigated and prosecuted [plaintiff]
took no notes of their interviews with” Jappa and Bryant, and that plaintiff was thereby “deprived
of his constitutional right to Brady material.” Id. ¶¶ 136, 138.
Plaintiff further alleges that the constitutional violations were customary at the QCDAO.
To support that claim, the amended complaint notes that the QCDAO leadership conducted a
survey in 1996 that described multiple instances of misconduct by the QCDAO prosecutors. See
id. ¶¶ 155–63. The amended complaint also lists more than 100 criminal appeals “[b]etween 1985
and [plaintiff]’s trial in 2017” that reversed convictions in part due to “evidence of prosecutorial
misconduct” by QCDAO. 	Id. ¶ 144; see id. at 55–74. 	Of these, the complaint alleges that
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“approximately 30” involved “Brady material or material discoverable pursuant to People v.
Rosario, 9 N.Y.2d 286 (1961).” Id. ¶ 144. 	In addition, the amended complaint alleges that the
QCDAO leadership, including the district attorney from 1991 through plaintiff’s trial, was aware
of these incidents and did not take “any systemic action to address, prevent, or punish prosecutorial
misconduct.” Id. ¶ 149; see id. ¶¶ 143–48.
Plaintiff also alleges that the QCDAO “failed to adequately train QCDAO prosecutors on
their Brady” obligations, id. ¶ 139, and failed to supervise prosecutors in their exercise of Brady
obligations, id. ¶ 140.
Plaintiff filed this lawsuit in February 2024. 	See Compl. (Dkt. #1). 	The amended
complaint asserts six causes of action. 	Id. ¶¶ 196–243. 	Two involve only the individual
defendants: plaintiff alleges that these defendants engaged in malicious prosecution and deprived
plaintiff of his constitutional rights to due process and a fair trial. Id. ¶¶ 196–216. Another two
causes of action are directed at all defendants: plaintiff alleges that defendants violated his due
process rights under the New York State Constitution and that they violated state-law prohibitions
on malicious prosecution. Id. ¶¶ 225–37. The final two causes of action are directed only at the
City. One is a Section 1983 claim pursuant to Monell v. Department of Social Services, 436 U.S.
658 (1978), alleging that the City “created and maintained policies, customs, and practices of
deliberate indifference to violations of its employees of the constitutional rights of” criminal
defendants. Id. ¶¶ 217–24. The other is a state-law negligence claim. Id. ¶¶ 238–43. The City
moves to dismiss these last two causes of action under Federal Rule of Civil Procedure 12(b)(6).
See Mot. to Dismiss (Dkt. #44); Opp’n (Dkt. #46).
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STANDARD OF REVIEW
Federal Rule of Civil Procedure 12(b)(6) permits a defendant to move to dismiss a
complaint for “failure to state a claim upon which relief can be granted.” To avoid dismissal on
that basis, a complaint must “state a claim to relief that is plausible on its face.” Ashcroft v. Iqbal,
556 U.S. 662, 678 (2009) (citation omitted). 	“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.” Ibid. (discussing Fed. R. Civ. P. 8). The facial “plausibility
standard is not akin to a ‘probability requirement,’” but it requires a plaintiff to allege sufficient
facts to allow “the court to draw the reasonable inference that the defendant is liable for the
misconduct alleged.” Ibid. (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 556 (2007)). “[A]
well-pleaded complaint may proceed even if it strikes a savvy judge that actual proof [of the facts
alleged] is improbable, and that a recovery is very remote and unlikely.” Twombly, 550 U.S. at
556 (quotation marks and citation omitted).
At the motion-to-dismiss stage, a court may consider only (1) the complaint itself,
(2) documents either attached to the complaint or incorporated in it by reference, (3) documents
the plaintiff relied on and knew of when bringing suit, and (4) matters in the public record that are
subject to judicial notice. See ATSI Commc’ns, Inc. v. Shaar Fund, Ltd., 493 F.3d 87, 98 (2d Cir.
2007). 	When reviewing the complaint on a motion to dismiss, the court must accept all facts
alleged in a complaint as true, Iqbal, 556 U.S. at 678, and “draw[] all reasonable inferences in
favor of the plaintiff,” Buon v. Spindler, 65 F.4th 64, 76 (2d Cir. 2023). The court, however, is
not obligated to adopt “mere conclusory statements” or “[t]hreadbare recitals of the elements of a
cause of action” that are not “supported by factual allegations.” Iqbal, 556 U.S. at 678.
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DISCUSSION
The City’s motion to dismiss plaintiff’s Monell and negligence claims is granted.
I. 	Municipal Liability Under Section 1983
Plaintiff fails to adequately plead a Monell claim. Under Monell, to state a Section 1983
claim against a city for the acts of its employees, a plaintiff must plausibly allege “(1) an official
policy or custom that (2) causes the plaintiff to be subjected to (3) a denial of a constitutional
right.” Torraco v. Port Auth. of N.Y. & N.J., 615 F.3d 129, 140 (2d Cir. 2010) (citation omitted).
“A plaintiff can establish an official policy or custom by showing any of the following: (1) a formal
policy officially endorsed by the municipality; (2) actions or decisions made by municipal officials
with decision-making authority; (3) a practice so persistent and widespread that it constitutes a
custom of which policymakers must have been aware; or (4) a failure by policymakers to properly
train or supervise their subordinates, such that the policymakers exercised ‘deliberate indifference’
to the rights of the plaintiff and others encountering those subordinates.” Gem Fin. Serv., Inc. v.
City of New York, 298 F. Supp. 3d 464, 490 (E.D.N.Y. 2018); accord Jones v. Westchester County,
182 F. Supp. 3d 134, 158 (S.D.N.Y. 2016). 	The “first inquiry in any case alleging municipal
liability under § 1983 is the question whether there is a direct causal link between a municipal
policy or custom and the alleged constitutional deprivation.” City of Canton v. Harris, 489 U.S.
378, 385 (1989).
Plaintiff proffers three theories of Monell liability in connection with the constitutional
violations alleged to have occurred during his prosecution: (1) that the Brady violations in his case
were the product of a policy officially endorsed by the municipality because the QCDAO had a
policy of ensuring no notes were taken during witness interviews; (2) that failing to disclose
exculpatory evidence constituted a widespread and persistent QCDAO practice of which
policymakers must have been aware; and (3) that policymakers failed to train and discipline
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prosecutors in connection with their obligations under Brady. See Am. Compl. ¶ 218; Opp’n 10–
24. Even assuming that plaintiff has plausibly alleged Brady violations on the part of the individual
defendants, none of his three Monell theories is adequately pleaded.
A. 	Lack of Notetaking
Plaintiff fails to plausibly allege that defendant’s purported no-notetaking policy caused a
constitutional violation.
To adequately plead a Monell claim, a “plaintiff must show that the municipal action was
taken with the requisite degree of culpability and must demonstrate a direct causal link between
the municipal action and the deprivation of federal rights.” Bd. of Cnty. Comm’rs v. Brown, 520
U.S. 397, 404 (1997). 	A plaintiff “seeking to establish municipal liability on the theory that a
facially lawful municipal action has led an employee to violate a plaintiff’s rights must
demonstrate that the municipal action was taken with ‘deliberate indifference’ as to its known or
obvious consequences.” Id. at 407 (quoting. Canton, 489 U.S. at 388).
Plaintiff alleges that the QCDAO “maintained a policy, custom, and practice that expressly
trained and directed ADAs to ensure that virtually no notes were taken when interviewing potential
trial prosecution witnesses, including that ADAs were to take no notes of such interviews even
when they were the only personnel present at such interviews.” Am. Compl. ¶ 132. A policy of
refraining from notetaking is generally lawful: nothing in the Constitution “requires the
Government to take notes during witness interviews.” United States v. Rodriguez, 496 F.3d 221,
224 (2d Cir. 2007). True, the Second Circuit has left open the question of whether such a policy
may be unconstitutional if adopted for an improper purpose—that is, whether “the Government,
for the purpose of avoiding the disclosure of the initial falsities and inconsistencies of persons who
may become Government trial witnesses, may permissibly instruct an agent not to follow the
customary practice of taking notes of witness interviews.” 	Id. at 225 n.3. 	But the amended
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complaint does not cite any facts that render plausible the claim that the government maintained a
policy against notetaking for the purpose of avoiding the disclosure of falsities or inconsistencies.
To the contrary, the amended complaint makes only the bald assertion that the policy had this
purpose. Because plaintiff “points to no evidence to support an improper motive,” Baity v. Kralik,
51 F. Supp. 3d 414, 443 (S.D.N.Y. 2014), his allegations “do not rise above the level of
‘conclusory, boilerplate language,’” see Folk v. City of New York, 243 F. Supp. 3d 363, 377
(E.D.N.Y. 2017) (quoting Bradley v. City of New York, 08-cv-1106, 2009 WL 1703237, at *3
(E.D.N.Y. June 18, 2009)).
Because the notetaking policy that plaintiff alleges is a “facially lawful” one, the policy
could support Monell liability only if plaintiff plausibly alleged a “direct causal link” between the
municipal policy and the constitutional violations he alleges. See Brown, 520 U.S. at 404–05. The
Supreme Court has emphasized that this standard is demanding and presents “difficult problems
of proof” for plaintiffs, explaining that “rigorous standards of culpability and causation must be
applied to ensure that the municipality is not held liable solely for the actions of its employee.” Id.
at 405–06. Just because “a plaintiff has suffered a deprivation of federal rights at the hands of a
municipal employee,” that “will not alone permit an inference of municipal culpability and
causation; the plaintiff will simply have shown that the employee acted culpably.” Id. at 406–07.
Plaintiff’s pleadings do not meet this “rigorous” causation standard because they do not
show that Brady violations were a “known or obvious consequence[]” of the “facially lawful”
policy of not taking notes during witness meetings. 	See id. at 405, 407 (citation omitted). 	To
start, while plaintiff alleges that Jappa’s and Bryant’s statements “were neither recorded nor
disclosed to the defense,” Am. Compl. ¶ 137, he provides no facts plausibly suggesting that the
lack of recording “direct[ly] caus[ed]” the Brady violations, Canton, 489 U.S. at 385; see
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Oklahoma City v. Tuttle, 471 U.S. 808, 824 n.8 (1985) (requiring “at least an affirmative link
between” the policy “and the particular constitutional violation at issue”). He offers no evidence
that the prosecutors handling his case—let alone QCDAO policymakers—viewed the policy
against written notes as a means of circumventing Brady obligations, see Am. Compl. ¶¶ 132–38,
or declined to turn over Brady material “because of” the no-notetaking policy, see Hernandez v.
United States, 939 F.3d 191, 207–08 (2d Cir. 2019). Indeed, given prosecutors’ obligation to turn
over Brady material regardless of whether that material is written down, see Rodriguez, 496 F.3d
at 222, “the requisite causal link between the municipal policy and the alleged denial of a
constitutional right is extraordinarily attenuated,” Usavage v. Port Auth. of N.Y. & N.J., 932 F.
Supp. 2d 575, 601 (S.D.N.Y. 2013). 	And because ADAs “are not only equipped but are also
ethically bound to know what Brady entails and to perform legal research when they are uncertain,”
Connick v. Thompson, 563 U.S. 51, 66–67 (2011), it is far from “obvious” that a policy of not
taking notes in witness meetings would result in Brady violations, Brown, 520 U.S. at 407.
The examples plaintiff cites in his complaint dealing with the QCDAO’s past Brady
violations likewise fail to raise a plausible inference that the constitutional violations in his case
were the product of the office’s notetaking policy. See Am. Compl. at 55–74. These cases contain
no hint that this policy was the “moving force” behind any of the violations alleged. Brown, 520
U.S. at 404. Nor does plaintiff appear to argue as much, as he does not identify a single case in
which a court found the office’s notetaking policy relevant to the Brady analysis. See Opp’n 21–
24. 	In one case, to be sure, the prosecutor took no notes during a meeting—but did ultimately
disclose the exculpatory evidence to the defense, though perhaps too late. 	See Reply Brief for
Appellant at 5, People v. Thomas, 8 A.D.3d 303 (2d Dep’t 2004) (No. 2002-09382). There was
no suggestion that the lack of written notes played any role in the prosecutor’s delay in disclosing
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the exculpatory evidence. 	See generally Thomas, 8 A.D.3d 303. 	And the other cases plaintiff
cited in his complaint had nothing to do with the alleged no-notetaking policy. See, e.g., People
v. Manzione, 109 A.D.2d 755, 486 N.Y.S.2d 70 (2d Dep’t 1985) (involving officers and a
prosecutor who took notes but did not turn them over); People v. Rivera, 170 A.D.2d 544, 566
N.Y.S.2d 321 (2d Dep’t 1991) (involving a police report); People v. Baba-Ali, 179 A.D.2d 725,
578 N.Y.S.2d 633 (2d Dep’t 1992) (involving medical records); People v. Clausell, 182 A.D.2d
132, 587 N.Y.S.2d 672 (2d Dep’t 1992) (involving a police report); People v. Steadman, 82 N.Y.2d
1, 623 N.E.2d 509 (2d Dep’t 1993) (involving a third party’s cooperation agreement); People v.
May, 228 A.D.2d 523, 644 N.Y.S.2d 525 (2d Dep’t 1996) (involving a third party’s cooperation
agreement); Jenkins v. Artuz, 294 F.3d 284, 287 (2d Cir. 2002) (involving a third party’s
cooperation agreement); Turner v. Schriver, 327 F. Supp. 2d 174, 184 (E.D.N.Y. 2004) (involving
a witness’s conviction record); People v. Knight, 18 Misc. 3d 1129(A), 856 N.Y.S.2d 501 (Sup.
Ct. Queens Cnty. 2007) (involving police reports, video footage, and recorded witness statements);
People v. Bellamy, 26 Misc. 3d 1210(A), 906 N.Y.S.2d 781 (Sup. Ct. Queens Cnty. 2010)
(involving police reports); People v. Robinson, 34 Misc. 3d 1217(A), 950 N.Y.S.2d 493 (Crim. Ct.
Queens Cnty. 2011) (involving a witness’s contact information); People v. Negron, 26 N.Y.3d 262
(2d Dep’t 2015) (involving evidence incriminating a third party).
In short, plaintiff’s pleadings do not plausibly allege “a direct causal link” between the
alleged no-notetaking policy and any Brady violations. Brown, 520 U.S. at 404; see Sullivan v.
City of New York, No. 17-cv-3779 (KPF), 2018 WL 3368706, at *16 (S.D.N.Y. July 10, 2018)
(Monell claim failed when plaintiff failed to “establish a clear causal connection between” between
lawful stop-and-frisk policy and alleged constitutional violation). Accordingly, plaintiff fails to
adequately plead a Monell claim under his no-notetaking theory.
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B. 	Custom or Practice of Committing Brady Violations
Plaintiff does not adequately plead that his constitutional rights were violated as a result of
a QCDAO custom or practice of failing to disclose exculpatory evidence in violation of Brady.
Courts in this circuit recognize that a plaintiff may plead the existence of a de facto policy by citing
“governmental reports” or court decisions if the reports or decisions describe cases that “involve
factually similar misconduct, [are] contemporaneous to the misconduct at issue in the plaintiff’s
case, and result in an adjudication of liability.” Buari v. City of New York, 530 F. Supp. 3d 356,
398–99 (S.D.N.Y. 2021) (citation omitted); accord Rodriguez v. City of New York, 607 F. Supp.
3d 285, 300 n.9 (E.D.N.Y. 2022); see Nunez v. City of New York, 735 F. App’x 756, 760 & n.2 (2d
Cir. 2018) (summary order). The reports or decisions must reflect instances that are “so persistent
or widespread as to constitute a custom or usage with the force of law.” 	Patterson v. Cnty. of
Oneida, 375 F.3d 206, 226 (2d Cir. 2004) (citation omitted); see, e.g., Sorlucco v. N.Y.C. Police
Dep’t, 971 F.2d 864, 870–73 (2d Cir. 1992) (applying this framework). These requirements ensure
that the practice plausibly “cause[d] the plaintiff to be subjected to . . . a denial of a constitutional
right.” Torraco, 615 F.3d at 140 (emphasis added).
Plaintiff falls short of pleading such a pattern. 	He principally relies on a “Prosecutorial
Misconduct Survey” conducted in 1996, see Am. Compl. ¶¶ 155–63, and over 100 criminal
appeals “[b]etween 1985 and [plaintiff’s] trial in 2017” which reversed convictions in part due to
“evidence of prosecutorial misconduct” by QCDAO, id. ¶ 144. Plaintiff also alleges that “[a]t one
point” between 1991 and 2019, the district attorney told his top aide: “Jack, I think we’ve been
getting away with this sort of thing for a long time.” Id. ¶ 148. But the bulk of this evidence is
temporally attenuated from the conduct of which plaintiff complains. Plaintiff’s trial occurred at
least a decade after 106 of the criminal cases he lists and more than two decades after the survey.
See Am. Compl. at 55–72. 	As a result, those cases and the survey do not recount misconduct
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“contemporaneous to the misconduct at issue” in plaintiff’s case. Buari, 530 F. Supp. 3d at 399.
When faced with similar temporal gaps, other courts in this circuit have dismissed Monell claims
based on similar source materials. 	See, e.g., Breton v. City of New York, 404 F. Supp. 3d 799,
817–18 (S.D.N.Y. 2019) (claim was insufficiently pleaded when the evidence was not “of
relatively recent vintage” and plaintiff’s case “occurred years later” (citation omitted)). 	While
Newson v. City of New York, No. 16-cv-6773 (ILG) (JO), 2019 WL 3997466, at *8 (E.D.N.Y. Aug.
23, 2019), see Opp’n 14–15, on which plaintiff relies, takes a different approach—allowing a
Monell claim to proceed based on the plaintiff’s list of 87 cases involving prosecutorial misconduct
that predated the plaintiff’s conviction by over a decade—the weight of authority requires that
alleged incidents underlying a de facto policy be at least somewhat contemporaneous to an
underlying constitutional violation in order to make reasonable an inference that the incidents in
question were the product of a common policy. 	See, e.g., Buari, 530 F. Supp. 3d at 399, 406;
Breton, 404 F. Supp. 3d at 817–18; K.A. v. City of New York, No. 16-cv-04936 (LTS) (JW), 2025
WL 2256891, at *4 (S.D.N.Y. Aug. 7, 2025); Santiago v. City of Rome, No. 24-cv-00704 (BKS)
(MJK), 2025 WL 553347, at *9 (N.D.N.Y. Feb. 19, 2025); A.P. v. Dannhauser, No. 23-cv-6687
(PKC) (RML), 2025 WL 917233, at *7–8 (E.D.N.Y. Mar. 25, 2025). Cf. Bell v. City of New York,
No. 22-cv-3251 (DG) (PK), 2023 WL 11916696, at *14 (E.D.N.Y. Sept. 1, 2023) (recommending
denial of motion to dismiss when plaintiff provided “sufficiently contemporaneous” cases).
Moreover, of the seventeen cases plaintiff identifies in Exhibit A of his complaint that
involved constitutional violations and were decided within a decade of his trial, just four involved
Brady violations. See Am. Compl. at 72–74 (citing People v. Knight, 18 Misc. 3d 1129(A) (Sup.
Ct. Queens Cnty. 2007); People v. Bellamy, 26 Misc. 3d 1210(A) (Sup. Ct. Queens Cnty. 2010);
People v. Robinson, 34 Misc. 3d 1217(A) (Crim. Ct. Queens Cnty. 2011); People v. Negron, 26
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N.Y.3d 262 (2015)); id. ¶¶ 168–74. Of these, only one was in the five years before plaintiff’s trial.
Elsewhere in the complaint, plaintiff also references People v. Bell, 71 Misc. 3d 646, 143 N.Y.S.3d
840 (N.Y. Sup. Ct. 2021), which involved a 1999 capital murder trial. Without more, five cases
involving Brady violations, just one of which occurred in the five years prior to plaintiff’s trial, do
not support a Monell custom-or-practice claim. 	“Even drawing reasonable inferences in
[plaintiff]’s favor, such a relatively small number of cases . . . in such a large municipality does
not plausibly suggest that the alleged practice is ‘so widespread as to have the force of law.’”
Buari, 530 F. Supp. 3d at 406 (quoting Brown, 520 U.S. at 404); see e.g., Jones v. Town of E.
Haven, 691 F.3d 72, 85 (2d Cir. 2012) (concluding that “two instances, or at the most three, over
a period of several years . . . fell far short of showing a policy, custom, or usage”); Rodriguez, 607
F. Supp. 3d at 299–300 & n.9 (similar).
Accordingly, plaintiff fails to adequately plead a Monell claim under this theory.
C. 	Failure to Train or Discipline
Plaintiff similarly fails to adequately plead a Monell claim based on the QCDAO’s failing
to train or discipline prosecutors regarding Brady violations.
Failure to train. The requirements for failure-to-train liability are stringent, because “[a]
municipality’s culpability for a deprivation of rights is at its most tenuous where a claim turns on
a failure to train.” Connick, 563 U.S. at 61; see Reynolds v. Giuliani, 506 F.3d 183, 191–92 (2d
Cir. 2007). To plead a Monell claim on a failure-to-train theory, a plaintiff must plausibly allege
that the “failure amounts to ‘deliberate indifference’ to the rights of those with whom the city
employees interact.” Wray v. City of New York, 490 F.3d 189, 195 (2d Cir. 2007) (quoting Canton,
489 U.S. at 388). In addition, the plaintiff must “identify a specific deficiency in the city’s training
program and establish that that deficiency is closely related to the ultimate injury, such that it
actually caused the constitutional deprivation.” Id. at 196 (quotation marks and citation omitted).
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“A pattern of similar constitutional violations by untrained employees is ‘ordinarily necessary’ to
demonstrate deliberate indifference for purposes of failure to train.” 	Connick, 563 U.S. at 62
(quoting Brown, 520 U.S. at 409).
Plaintiff fails to plausibly allege a failure to train that amounted to deliberate indifference.
Plaintiff relies on the same prosecutorial survey and list of criminal cases addressed above, coupled
with his allegation that the QCDAO leadership was aware of those incidents and did not take “any
systemic action to address, prevent, or punish prosecutorial misconduct.” Am. Compl. ¶ 149; see
id. ¶¶ 143–66; Opp’n 13, 18–21. But plaintiff’s failure-to-train theory is inadequate in that it relies
generally on violations of Brady and fails to allege facts plausibly suggesting a deficiency in
QCDAO’s training “concern[ing] the nondisclosure of the same sort of evidence at issue in this
case.” Greene v. City of New York, 742 F. App’x 532, 536 (2d Cir. 2018) (summary order) (citing
Connick, 563 U.S. at 62–63 (finding “four reversals” in ten years prior to the plaintiff’s arrest did
not give “notice that the [prosecutor’s] office’s Brady training was inadequate with respect to the
sort of Brady violation at issue”); Jones v. City of New York, 988 F.Supp.2d 305, 313–14 (E.D.N.Y.
2013) (granting motion to dismiss where “impressive recitation of past Brady claims” did not
include “the specific type of Brady material at issue”)); see also, e.g., Harris v. City of Newburgh,
No. 16-cv-2731 (KMK), 2017 WL 4334141, at *6 (S.D.N.Y. Sept. 27, 2017) (collecting cases).
Plaintiff has not pleaded any facts suggesting that the nature of the violations in the cases cited in
the above survey and list were “similar” to the incidents plaintiff describes in his complaint.
Connick, 563 U.S. at 62. And without a showing of similarity, plaintiff cannot allege a sufficient
“pattern of injuries” to “establish municipal culpability and causation.” See Brown, 520 U.S. at
409.
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Even assuming the other Brady violations plaintiff cites were adequately similar, four
Brady violations by the QCDAO in the ten years prior to plaintiff’s trial does not plausibly suggest
deliberate indifference, because that handful of violations does not suggest that the further similar
misconduct was “‘so likely to result’ from [QCDAO]’s inaction as to render their inaction
deliberately indifferent.” Astacio v. City of New York, No. 23-7598, 2025 WL 80069, at *2 (2d
Cir. Jan. 13, 2025) (summary order) (quoting Reynolds, 506 F.3d at 193); compare Rodriguez, 607
F. Supp. 3d at 299–300 (granting motion to dismiss claims against the QCDAO because just “three
of the decisions the plaintiff cites” date to the years prior to his conviction), and Breton, 404 F.
Supp. 3d at 818–19 (similar, fifteen complaints all at least six years prior), with Buari, 530 F. Supp.
3d at 406–07 (denying motion to dismiss claims citing “five vacated convictions in . . . the two
years before [plaintiff’s] prosecution, and several others before then”), and Edwards v. City of New
York, 14-cv-10058, 2015 WL 5052637, at *6 n.3 (S.D.N.Y. Aug. 27, 2015) (same, eighteen
lawsuits over twelve-year period).
Failure to discipline. 	Plaintiff’s failure-to-discipline challenge fails for similar reasons.
As with failure to train, a plaintiff advancing a failure-to-discipline theory must show that the
City’s approach to discipline reflected deliberate indifference—that is, that the need to act was
“‘so obvious, and the inadequacy of current practices so likely to result in a deprivation of federal
rights, that the municipality or official can be found deliberately indifferent to the need’” for
supervision. Hicks v. City of Syracuse, 17-cv-0475, 2018 WL 6308653, at *5 (N.D.N.Y. Dec. 3,
2018) (quoting Reynolds, 506 F.3d at 192). 	“There are two ways to plausibly plead deliberate
indifference with respect to failure to supervise/discipline. 	First, a plaintiff may plead (1) that
there was a pattern of allegations of or complaints about similar unconstitutional activity and
(2) that the municipality consistently failed to investigate those allegations. 	Second, a plaintiff
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may plead (1) that there was a pattern of actual similar constitutional violations and (2) the
municipality consistently failed to discipline those involved.” Tieman v. City of Newburgh, 2015
WL 1379652, at *21 (S.D.N.Y. Mar. 26, 2015) (emphasis deleted); accord Harris v. City of
Newburgh, 2017 WL 4334141, at *7 (S.D.N.Y. Sept. 27, 2017); Pal v. Canepari, 2023 WL
2712371, at *21 n.43 (D. Conn. Mar. 30, 2023), aff’d, 2024 WL 4341360 (2d Cir. Sept. 30, 2024).
Plaintiff fails to adequately plead deliberate indifference under either theory because, as outlined
above, he has not pleaded any facts that would allow a Court to determine whether the violations
in the cases plaintiff cites in his pleadings are sufficiently “similar” to his own, Tieman, 2015 WL
1379652, at *21; see Connick, 563 U.S. at 62, and because four Brady violations in a decade in a
busy municipality do not constitute the type of pattern that would support a deliberate indifference
finding.
Because plaintiff has failed to adequately plead a viable theory of municipal liability, his
Monell claim is dismissed.
II. 	Negligence
Plaintiff’s negligence claim fails as a matter of law. Plaintiff alleges negligent hiring and
supervision. See Am. Compl. ¶ 240; Opp’n 24. “A claim for negligent hiring or supervision can
only proceed against an employer for an employee acting outside the scope of her employment.”
Rodriguez v. City of New York, 594 F. Supp. 3d 534, 548 (E.D.N.Y. 2022) (citation omitted); see
Velez v. City of New York, 730 F.3d 128, 136–37 (2d Cir. 2013). The amended complaint nowhere
alleges that any City employee ever acted outside his or her scope of employment; to the contrary,
it affirmatively alleges that each individual defendant was “[a]t all times . . . acting within the
scope of his employment.” 	Am. Compl. ¶¶ 25–27; accord id. ¶ 28. 	Because plaintiff has
“conceded that the defendants were acting within the scope of their employment,” “judgment as a
matter of law [is] warranted.” Velez, 730 F.3d at 137; see, e.g., Dawson v. City of Mount Vernon,
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No. 18-CV-1044 (JMF), 2023 WL 7219882, at *2 (S.D.N.Y. Nov. 2, 2023); Hamilton v. City of
New York, No. 15-cv-4574 (CBA) (SJB), 2019 WL 1452013, at *31 (E.D.N.Y. Mar. 19, 2019);
Zanfardino v. City of New York, 230 F. Supp. 3d 325, 336 (S.D.N.Y. Feb. 3, 2017). Accordingly,
plaintiff’s negligence claim is dismissed.
CONCLUSION
The City’s partial motion to dismiss is granted. Plaintiff’s municipal liability claim under
Section 1983 and negligence claim under state law are dismissed.
SO ORDERED.
/s/ Rachel Kovner
RACHEL P. KOVNER
United States District Judge
Dated: March 11, 2026
Brooklyn, New York
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