Lynch v. Figueroa et al

1
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK
_____________________________________________________________________
Randall Lynch,
Plaintiff,
v. 9:25-CV-959
(GTS/MJK)
County of Ulster,
Defendant.
_____________________________________________________________________
Randall M. Lynch, pro se
Kimberly Hunt Lee, Esq., for Defendant
Mitchell J. Katz, United States Magistrate Judge
To the Honorable Glenn T. Suddaby, U.S. District Judge:
REPORT-RECOMMENDATION
United States District Court Judge Glenn T. Suddaby referred the
County of Ulster’s (“Defendant”) motion to dismiss to the Court for
report and recommendation.1 In this pro se civil rights action, Lynch
alleges that Defendant violated the First Amendment’s Free Exercise
Clause and the Religious Land Use and Institutionalized Persons Act
(“RLUIPA”) when it denied him the ability to practice his religion. For
1 The District Court has the authority to refer dispositive motions to this Court
under 28 U.S.C. § 636(b) and N.D.N.Y. Local Rule 72.3(c).
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the following reasons, this Court recommends granting Defendant’s
motion to dismiss.
I. BACKGROUND
Lynch, a pre-trial detainee at the Ulster County Jail, alleges that
since November of 2024, he put in multiple request forms for “religious
services, church, Bible studies, and worship services”. (Complaint, Dkt.
1 p.5). Between November 2024 and July 2025, the chaplain visited
Lynch 10 times yet “there w[ere] no services, studies, and/or worships.”
(Id.) (cleaned up). Defendant made studies available to Lynch in April
2025, and he received 3-4 services. (Id.).
In March of that year, Lynch requested to be baptized. (Id.).
Defendants denied the request. (Id.). Lynch grieved that denial, and
ultimately the grievance was rejected. (Id.). Lynch notes that being
baptized “is important to [him] and [his] faith walk” because “it is a
matter of eternal life and eternal death.” (Id.). If he is not baptized,
Lynch contends, he will “not go to heaven and will spend eternity in a
lake of fire.” (Id.) (cleaned up). Defendant is “h[olding] up” Lynch’s
“spiritual journey” by denying him participation “in any holiday services
or bible studies because the jail does not offer them.” (Id.) (cleaned up).
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In response to Lynch’s Complaint, Defendant moves, under Fed.
R. Civ. P. 12(b)(6), to dismiss the Complaint for failure to state a claim.
(Dkt. 15). Lynch did not respond to the motion.2
II. STANDARDS OF REVIEW
Fed. R. Civ. P. Rule 12(b)(6)
Although Complaints do “not need detailed factual allegations” to
survive a motion to dismiss, “a plaintiff’s obligation to provide the
grounds of his entitlement to relief requires more than labels and
conclusions, and a formulaic recitation of the elements of a cause of
action will not do.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007)
(internal quotation omitted). Indeed, Rule 8 of the Federal Rules of Civil
Procedure “demands more than the unadorned, the-defendant-
unlawfully-harmed-me accusation.” Ashcroft v. Iqbal, 556 U.S.662, 678
(2009). Complaints which “tenders naked assertions devoid of further
factual enhancement” will not suffice. Id. Rather, a complaint’s “factual
allegations must be enough to raise a right to relief above the
speculative level.” Twombly, 550 U.S. at 555 (cleaned up).
2 On February 4, 2026, the Clerk docketed a letter from Lynch requesting more time
to respond to the motion. (Dkt. 22). The Court denied that request. (Dkt. 23).
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When ruling on a defendant’s motion to dismiss, all factual
allegations contained in the complaint must be accepted as true and all
reasonable inferences must be drawn in favor of the plaintiff. Koch v.
Christie’s Int’l PLC, 699 F.3d 141, 145 (2d Cir. 2012)). But “the tenet
that a court must accept as true all of the allegations contained in a
complaint is inapplicable to legal conclusions.” Twombly, 550 U.S. at
155. Additionally, “in adjudicating a Rule 12(b)(6) motion, a district
court must confine its consideration to facts stated on the face of the
complaint, in documents appended to the complaint or incorporated in
the complaint by reference, and to matters of which judicial notice may
be taken.” Leonard F. v. Isr. Disc. Bank of New York, 199 F.3d 99, 107
(2d Cir. 1999) (cleaned up). Finally, Complaints filed by pro se litigants
are “held to less stringent standards than formal pleadings drafted by
lawyers.” Estelle v. Gamble, 429 U.S. 97, 106 (1976)(quoting Haines v.
Kerner, 404 U.S. 519, 520-21 (1972)).
III. DISCUSSION
Reviewing the Complaint, the Court recommends the District
Court dismiss Lynch’s Complaint. This Court, coming to that
conclusion, first finds that the District Court should not consider
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Defendant’s additional documents (Section III. A.). Second, the Court
finds that Lynch does not plausibly allege municipality liability (Section
III. B.). If the District Court disagrees with that recommendation, this
Court recommends the District Court allow the Complaint to survive
because Lynch has plausibly alleged free exercise (Section III. C.) and
RLUIPA (Section III. D.) claims.
A. Defendant’s additional documents are not integral to the
Complaint.
The Court recommends the District Court strike the additional
documents. When ruling on a 12(b)(6) motion, courts can only consider
documents outside of the pleading if the documents are integral to the
complaint. Yet, none of Defendant’s documents are either attached or
integral to the Complaint. As a result, the District Court should not
consider them.
The exhibits are neither attached nor integral to the Complaint. A
document is integral “where the complaint relies heavily upon its terms
and effect.” Chambers v. Time Warner, Inc., 282 F.3d 147, 153 (2d Cir.
2002). “Generally, an integral document is a contract or other legal
document containing obligations upon which the plaintiff’s complaint
stands or falls but which for some reason—usually because the
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document, read in its entirety would undermine the legitimacy of the
plaintiff’s claim—was not attached to the complaint.” Goel v. Bunge,
Ltd., 820 F.3d 554, 559 (2d Cir. 2016). In his Complaint, Lynch refers to
the grievance process, but he does not incorporate those documents by
reference. (Complaint, Dkt. 1, at pg. 5); see Wang v. Bethlehem Cent.
Sch. Dist., No. 121-CV-1023 (LEK/DJS), 2022 WL 3154142, at *15
(N.D.N.Y. Aug. 8, 2022) (holding that “merely referencing a document;
even quoting from a document” does not incorporate it). Similarly,
Lynch’s claim does not stand or fall based on his allegation that he
grieved the denial of his rights, so the documents are not integral. See
Jones v. Bock, 549 U.S. 199, 211-12 (2007) (holding that exhaustion,
under the Prison Litigation Reform Act, is an affirmative defense and
the burden to prove exhaustion is on the defendant). Finally, the inmate
lookup document is plainly a matter outside the pleadings. Accordingly,
the Court does not consider those outside documents on this motion,
and it recommends the District Court do the same.
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B. Lynch has not plausibly alleged that Defendant has a
practice, policy, or widespread custom that prohibits from
practicing Christianity.
The Court recommends that the District Court grant Defendant’s
motion to dismiss as to Lynch’s allegation of Monell v. Dep’t of Social
Services, 436 U.S. 658, 694 (1979) liability. To state a claim for Monell
liability, plaintiffs must plausibly allege that a municipal defendant has
an unconstitutional policy, practice, or widespread custom that causes
the constitutional injury. Here, Lynch’s Complaint lacks any allegations
that Defendant violated his constitutional rights because of a policy,
custom, or widespread practice. As a result, the Court finds that there
is no Monell liability.
To successfully state a claim for Monell liability, a plaintiff must
“make factual allegations that support a plausible inference that the
[alleged] constitutional violation took place pursuant either to a formal
course of action officially promulgated by the municipality’s governing
authority or the act of a person with policy making authority for the
municipality.” Missel v. Cnty. of Monroe, 351 F. App’x 543, 545 (2d Cir.
2009)(citing Vives v. City of N.Y., 524 F.3d 346, 350 (2d Cir. 2008).
Bible studies. Lynch does not plausibly allege Monell liability as to
Defendant’s denial of bible studies. “Although the Court must construe
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[p]laintiff[s’] submissions liberally, the liberality with which courts
examine pro se pleadings does not require a court to accept as true
allegations that conflict with a plaintiff’s prior allegations.” Liverpool v.
City of New York, No. 20-CV-04629, 2023 WL 2746124, at *4 (S.D.N.Y.
Mar. 31, 2023). Here, there are conflicting allegations. First, Lynch
alleges that bible “studies . . . bec[a]me awarded to [him] [in] April 2025
after numerous complaints.” (Complaint, Dkt. 1, at pg. 5). Second,
Lynch alleges that he is “not able to participate in any . . . bible studies
because the jail does not offer them.” (Id.). Those two things cannot be
true. Either way, there is no Monell liability. If the District Court views
the Complaint as alleging that there are bible study sessions at the jail,
there is no Monell liability because Lynch has what he wants. If the
District Court views the Complaint as alleging that there are no bible
study sessions at the jail, there is still no Monell liability. Lynch has not
plausibly “alleged that his constitutional rights were violated due to an
official [County of Ulster] 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.” Ruiz
v. Officer Mark, et al., 9:24-CV-0179 (LEK/PJE), 2026 WL 704584, at *8
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(N.D.N.Y. Feb. 13, 2026) (cleaned up). All the Complaint says is “the jail
doesn’t offer” bible studies. (Complaint, Dkt. 1, at pg. 5). That is not
enough. See, e.g., McCormick v. Cnty. of Westchester, No. 19-CV-2916,
2023 WL 2632204, at *10 (S.D.N.Y. Mar. 24, 2023) (“Plaintiff does not
point to any instance of the County failing to place threatened inmates
into protective custody beyond his own. This alone is fatal to Plaintiff's
Monell claim.”); Gordon v. City of N.Y., No. 10-CV-5148, 2012 WL
1068023, at *4 (E.D.N.Y. Mar. 29, 2012) (dismissing Monell claim where
the plaintiff's “allegation [was] unsupported by anything other than the
facts of what occurred in his particular case”) (internal citation
omitted). Thus, the Court finds Lynch does not plausibly allege a Monell
claim as to Defendant’s denial of bible studies.
Baptism. Lynch has not plausibly alleged Monell liability as to
Defendant denying him the ability to be baptized. “Proof of a single
incident of unconstitutional activity is not sufficient to impose liability
under Monell, unless proof of the incident includes proof that it was
caused by an existing, unconstitutional municipal policy that can be
attributed to a municipal policymaker.” Arzu v. City of New York, No.
24-CV-06058, 2025 WL 437699, at *5 (S.D.N.Y. Feb. 7, 2025) (cleaned
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up) (quoting City of Okla. City v. Tuttle, 471 U.S. 808, 823-24 (1985)).
Yet here, nothing in Lynch’s Complaint plausibly alleges that
Defendant denied Lynch the ability to be baptized because of a policy or
widespread practice. See (Complaint, Dkt. 1, at pg. 5). All the Complaint
alleges is that the jail denied him the opportunity to be baptized. (Id.).
But again, that is not enough. See Iqbal, 556 U.S. at 677-78
(“pleading[s] must contain . . . more than an unadorned, the-defendant-
unlawfully-harmed-me accusation”). At bottom, Lynch’s Complaint does
not say enough for this Court to find that Lynch plausibly alleged
Monell liability as to Defendant’s denying Lynch the opportunity to be
baptized.
Worship/Religious Services. Lynch has not plausibly alleged
Monell liability as to the worship/religious services. While at first blush,
Lynch again provides conflicting allegations, he does not. He first
alleges that has “only received 3 or 4 services.” (Complaint, Dkt. 1, at
pg. 5). Lynch then alleges that his “spiritual journey is being held up”
because the jail does not offer holiday services.” (Id.). Liberally
construing the claim, Lynch seems to be alleging that he is separately
entitled to holiday services in addition to regular services. He is not. See
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Flores v. City of New York, No. 21-CV-1680, 2022 WL 4705949, at *25
(S.D.N.Y. Aug. 8, 2022) (“a prison must permit a reasonable opportunity
for an inmate to engage in religious activities but need not provide
unlimited opportunities.”) (internal citation omitted) report and
recommendation adopted, No. 21-CV-1680, 2022 WL 4592892 (S.D.N.Y.
Sept. 30, 2022). All in all, Lynch is receiving worship/religious services
so there is no Monell liability. See (Complaint, Dkt. 1, at pg. 5).
C. Lynch has plausibly alleged that Defendant has prohibited
the free exercise of his religion.
If the District Court disagrees with the above analysis, and finds
that there is Monell liability, then the District Court should find that
Lynch has plausibly alleged a free exercise claim. To state a free
exercise claim, plaintiffs must plausibly allege that their asserted
practice is religious, the belief is sincerely held, and the prison officials
have engaged in a practice that infringes upon that belief. Here, Lynch
has pleaded that Defendant has denied him the ability to be baptized,
or put more broadly: Defendant has denied Lynch the ability to engage
in a central tenet of his faith. As a result, the District Court, if it finds
that there is Monell liability, should hold that Lynch has plausibly
alleged a free exercise claim.
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“To assess a free exercise claim, a court must determine
(1) whether the practice asserted is religious in the person’s scheme of
beliefs, and whether the belief is sincerely held; (2) whether the
challenged practice of the prison officials infringes upon the religious
belief; and (3) whether the challenged practice of the prison officials
furthers legitimate penological objectives.” Kravitz v. Purcell, 87 F.4th
111, 128 (2d Cir. 2023) (cleaned up).
Lynch plausibly alleges a free exercise claim. To start, Lynch
plausibly alleges the first element. Baptism is a core tenet of the
Chistian faith and Lynch alleges that it is important to him. See Weir v.
Nix, 890 F. Supp. 769, 778 (S.D. Iowa 1995) (“[t]he baptismal ceremony
is central to fundamentalist Christian belief as articulated by [the
plaintiff,] as it is for Christians generally.); (Complaint, Dkt. 1, at pg. 5)
(“Baptism is important to me and m[y] faith walk”). Lynch also
plausibly alleges the second element. Defendant’s denying Lynch the
ability to be baptized infringes on his ability to engage with his faith.
And finally, the Court cannot (and should not), on this motion, figure
out what penological objectives Defendant has for denying Lynch the
ability to engage in his faith. See Berk v. Choy, —U.S.—, 146 S. Ct. 546,
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553 (2026) (“this system of pleading makes it relatively easy for
plaintiffs to subject defendants to discovery—even for claims that are
likely to fail.”) So the District Court should find that Lynch has
plausibly alleged a free exercise claim.
D. Lynch has plausibly alleged that Defendant substantially
burdened his right to become a Christian and Defendant
has no compelling government interest in denying that
right.
The Court finds that Lynch has stated a RLUIPA claim. “RLUIPA
provides a more stringent standard than does the First Amendment,
barring the government from imposing a substantial burden on”
incarcerated persons’ free exercise of their religion “unless the
challenged conduct or regulation further a compelling governmental
interest and is the least restrictive means of furthering that interest.”
Holland v. Goord, 758 F.3d 215, 224 (2d Cir. 2014) (cleaned up). Here,
Lynch plausibly alleges a RLUIPA claim. Lynch’s Complaint alleges
that Defendant prohibited him from being baptized, and baptism is a
central tenet of his faith. See (Complaint, Dkt. 1, at pg. 5). To that
point, there is no compelling reason to completely deny Lynch from
being baptized. So if the District Court finds that there is Monell
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liability—which it should not—it should also find that Lynch has stated
a RLUPIA claim.
Defendant’s counterargument is unpersuasive. Defendant argues
that a substantial burden is one where the state “puts substantial
pressure on an adherent to modify his behavior and to violate his belief”
(Def. MTD, Dkt. 15-5, at pg. 11) (cleaned up) (quoting Thomas v. Rev.
Bd. of Indiana Emp. Sec. Div., 450 U.S. 707, 718, (1981)). While this is
true, this “case’s procedural posture limits [Thomas’s] reach.” Tanvir v.
Tanzin, No. 13-CV-6951, 2023 WL 2216256, at *11 (S.D.N.Y. Feb. 24,
2023) (cleaned up). The Second Circuit affords pro se litigants special
solicitude. See, e.g., Kravitz, 87 F.4th at 119. So this Court, mindful of
that solicitude, finds that it is far too early in this litigation to dismiss
the novel question—whether a state’s decision to deny a plaintiff a core
sacrament of their religion creates a substantial burden on that
plaintiff’s exercise of their religion—Lynch proffers here.
IV. CONCLUSION
WHEREFORE, based on the findings above, it is
RECOMMENDED, that the District Court STRIKE Defendant’s
additional documents, namely Exhibits B and C to the Motion to
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Dismiss (Dkt. 15-3,4) because they are neither attached to nor integral
to the Complaint; and it is further
RECOMMENDED, that the District Court GRANT Defendant’s
Motion to Dismiss the Complaint (Dkt. 15) because the Complaint does
not plausibly allege Monell liability; if the District Court disagrees with
those first two recommendations, it is ALTERNATIVELY
RECOMMENDED, that the District Court DENY Defendant’s
Motion to Dismiss (Dkt. 15) as to Lynch’s free exercise claim because
Lynch has plausibly alleged a free exercise claim; and it is further
RECOMMENDED, that the District Court DENY Defendant’s
Motion to Dismiss (Dkt. 15) as to Lynch’s RLUIPA claim because Lynch
has plausibly alleged a RLUIPA claim; and it is
ORDERED that the Clerk provide Plaintiff with copies of the
unpublished decisions cited herein in accordance with Lebron v.
Sanders, 557 F.3d 76 (2d Cir. 2008) (per curiam).
In accordance with 28 U.S.C. § 636(b)(1), the parties have fourteen 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 DAYS WILL
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PRECLUDE APPELLATE REVIEW. Roldan v. Racette, 984 F.2d 85
(2d Cir. 1993) (citing Small v. Sec’y of Health and Human Servs., 892
F.2d 15 (2d Cir. 1989) (per curiam)); 28 U.S.C. § 636(b)(1) (Supp. 2013);
Fed. R. Civ. P. 72, 6(a).
Dated: March 23, 2026
______________________________
Hon. Mitchell J. Katz
U.S. Magistrate Judge
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Arzu v. City of New York, Not Reported in Fed. Supp. (2025)
© 2026 Thomson Reuters. No claim to original U.S. Government Works. 1
2025 WL 437699
Only the Westlaw citation is currently available.
United States District Court, S.D. New York.
Gerson ARZU, Lawrence Austin, Jackie Barcliff, Khalik Berry, Shakeim Brunson, Shakin Desilva,
Michael Fennell, Kevin Gamble, Diego Garcia, Grover Gorbett, Christopher Harvis, Mohammad Hotaki,
Evander Jones, Tyrese Jones, Daniel Kelly, Antwon McGowan, Cleveland McNeill, Artis Miller, Tyrese
Minter, Earl Morgan, Jose Muniz Din No. 3492101228, Jose Muniz Din No. 2412300799, Ryan Padin,
Raheem Patterson, Loel Pinnock, Richard Quinones, Devonte Reeves, Steven Richards, Jorge Romero,
Joshua Santiago, Norell Thomas, Alex Tlatelpa, Norris White, Martinez Woods, Luke Woolfolk, Plaintiffs,
v.
The CITY OF NEW YORK, Defendant,
No. 24-CV-06058
|
Signed February 7, 2025
Attorneys and Law Firms
Douglas Mace, Danny Grace, PLLC, Brooklyn, NY, Daniel Joseph Grace, Danny Grace PLLC, New York, NY, for Plaintiffs.
John J. Doody, Maxim Maiello, New York City Law Department, New York, NY, for Defendant.
DECISION AND ORDER GRANTING DEFENDANT'S MOTION TO DISMISS
McMahon, United States District Judge:
*1 Plaintiffs Gerson Arzu, Lawrence Austin, Jackie Barcliff, Khalik Berry, Shakeim Brunson, Shakim Desilva, Michael
Fennell, Kevin Gamble, Diego Garcia, Grover Gorbett, Christopher Harvis, Mohammad Hotaki, Evander Jones, Tyrese
Jones, Daniel Kelly, Antwon McGowan, Cleveland McNeill, Artis Miller, Tyrese Minter, Earl Morgan, Jose Muniz Din No.
3492101228, Jose Muniz Din No. 2412300799, Ryan Padin, Raheem Patterson, Loel Pinnock, Richard Quinones, Devonte
Reeves, Steven Richards, Jorge Romero, Joshua Santiago, Norell Thomas, Alex Tlatelpa, Norris White, Martinez Woods, and
Luke Woolfolk (“Plaintiffs”) bring this action under 42 U.S.C. § 1983 against defendant the City of New York (“Defendant”),
alleging violations of their rights under the Fourth, Fifth, Sixth, Eighth, and Fourteenth Amendments of the Constitution of
the United States and the Constitution of the State of New York. The Plaintiffs – inmates detained on Rikers Island – allege
that their rights were violated because corrections officers failed to move the body of a deceased inmate out of their prison
unit for six hours after it was discovered in his cell. Dkt. No. 1, at ¶ 68. The gravamen of their complaint is that the failure
to remove Plaintiffs from the cellblock until the body could be moved caused them psychological distress, to which the City
was deliberately indifferent. Id. at ¶73–75.
Defendant the City of New York moves to dismiss the Complaint for failure to state a claim pursuant to Rule 12(b)(6). Dkt. No.
10. That motion is GRANTED and the complaint against the City of New York is dismissed with prejudice.
BACKGROUND
I. THE PARTIES
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Arzu v. City of New York, Not Reported in Fed. Supp. (2025)
© 2026 Thomson Reuters. No claim to original U.S. Government Works. 2
Plaintiffs were detained in the Rikers Island Correctional Facility, GVRC 5A Unit (“Rikers”) on July 23, 2023. The Complaint
does not specify whether any or all of the Plaintiffs were awaiting trial or had already been convicted at the time of the relevant
events. See Dkt. No. 1.
The City of New York (“Defendant”) is a municipal entity created and authorized under the laws of the State of New York and
is authorized by law to maintain the New York City Department of Corrections (“DOC”), which acts as its agent in the area of
corrections and for which Defendant is ultimately responsible. Id. at ¶ 45.
II. STATEMENT OF FACTS
The following facts are taken from the Complaint. Dkt. No. 1. On the pending motion to dismiss, the Court is “constrained
to accept as true the factual allegations contained in the complaint and draw all inferences in plaintiff's favor.” Glob, Network
Commc'ns Inc. v. City of New York, 458 F.3d 150, 154 (2d Cir. 2006) (citing Allair Corp. v. Okumus, 433 F.3d 248, 249–50
(2d Cir. 2006)).
On July 23, 2023, Plaintiffs were held in the GRVC 5A Unit on Rikers Island, New York. Dkt. No. 1, at ¶¶ 10–44. In the
early morning hours of that day, an inmate housed in that Unit hanged himself with a bedsheet. Id. at ¶ 52. Though it was
standard protocol for a Corrections Officer to make rounds at night to check on the inmates, that protocol was not followed on
this particular night or morning. Id. at ¶ 53. Other inmates in the cellblock allegedly discovered that the individual had hanged
himself. Id. at ¶ 54.
*2 The Chief Officer, assisted by two inmates, cut the body down and placed it on the floor of his cell. As so placed, the body
was lying half inside and half outside the cell. Id. at ¶¶ 54–55. The task exposed the inmates who helped the Chief Officer to
anguish; one of them vomited when he saw the deceased's face and neck. Id. at ¶ 57.
EMS arrived but failed to revive the individual. Id. at ¶ 60. Once EMS left, the body remained on the floor, in view of the
Plaintiff inmates. In total, the body was within the view of the inmates in the cell block for about six hours. Id. at ¶ 69. During
that time, individuals came to take photographs of the body. Id. ¶¶ 60–64.
The inmates “were in a state of panic” that the body was not removed; they asked to be removed from the cellblock. Id. at ¶¶
61, 66. The Deputy Warden told the inmates that they could not be moved due to a staff shortage. Id. at ¶ 68. After six hours
had passed, the Plaintiff inmates were finally removed from the cellblock and taken to the gym, where they spent a “couple of
hours.” Id. at ¶ 69. When they were returned to the cell block, the body was gone.
After the inmates returned from the gym, individuals from “mental health” came and held a group meeting and counseled
inmates individually. Id. at ¶¶ 70–71. The individuals from “mental health” returned to the cellblock for approximately two
weeks after the incident to counsel inmates about what had happened. Id. at ¶ 72. Various inmates reported suffering from
“depression, nightmares, loss of appetite, and an inability to sleep.” Id. at ¶ 74. An unspecified number of them were prescribed
psychiatric medications and received psychiatric care. Id. at ¶¶ 73–74.
III. PROCEDURAL HISTORY
Plaintiffs commenced this action on August 9, 2024. Dkt. No. 1. The only party sued was the City of New York; no individual
corrections officers were named.
Defendant City filed a motion to dismiss the Complaint against it, on the grounds that Plaintiffs failed (1) to exhaust their
administrative remedies as required by the Prison Litigation Reform Act, 42 U.S.C. Section 1997(e)(a) (“PLRA”); (2) to state
a claim that their constitutional rights were violated under Fed. R. Civ. P. 12(b)(6); and (3) to state a claim against the City of
New York. Defs. City of New York Mem. Of Law in Supp. Of Mot. For Dismissal of Compl. (“NYC Br.”)), Dkt. Nos. 10, 11.
Plaintiffs oppose the motion. Dkt. No. 17.
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Arzu v. City of New York, Not Reported in Fed. Supp. (2025)
© 2026 Thomson Reuters. No claim to original U.S. Government Works. 3
DISCUSSION
A. LEGAL STANDARD
In order to “survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to ‘state a claim
to relief that is plausible on its face.’ ” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550
U.S. 544, 570 (2007)). To achieve “facial plausibility,” a claim must contain “factual content that allows the court to draw the
reasonable inference that the defendant is liable for the misconduct alleged.” Id. (citing Twombly, 550 U.S. at 556). To survive a
motion to dismiss, the plaintiff must allege facts that “nudge[ ] [plaintiff's] claims across the line from conceivable to plausible.”
Twombly, 550 U.S. at 570. Further, “[d]etermining whether a complaint states a plausible claim for relief will ... be a context-
specific task that requires the reviewing court to draw on its judicial experience and common sense.” Iqbal, 556 U.S. at 679
(internal citations omitted).
*3 Additionally, “The Federal Rules of Civil Procedure require that a complaint contain ‘a short and plain statement of the
claim showing that the pleader is entitled to relief.’ ” Simmons v. Abruzzo, 49 F.3d 83, 86 (2d Cir. 1995) (quoting Fed. R. Civ.
P. 8(a)(2)). Complaints that rely on “group pleading” and “fail[ ] to differentiate” which defendant was involved in particular
allegedly unlawful conduct do not state a claim. Atuahene v. City of Hartford, 10 F. App'x 33, 34 (2d Cir. 2001). “It is well-
established in this Circuit that plaintiffs cannot simply lump defendants together for pleading purposes.” Monterey Bay Mil.
Hous., LLC v. Ambac Assurance Corp., 531 F. Supp. 3d 673, 728 (S.D.N.Y. 2021) (quotation omitted). Federal Rule of Civil
Procedure 8(a) “is violated where a plaintiff, by engaging in ‘group pleading,’ fails to give each defendant fair notice of the
claims against it.
“In determining the adequacy of a claim under Rule 12(b)(6), consideration is limited to facts stated on the face of the complaint,
in documents appended to the complaint or incorporated into the complaint by reference, and to matters of which judicial notice
may be taken.” Allen v. West Point-Pepperell, Inc., 945 F.2d 40, 44 (2d Cir. 1991). The court may consider the full text of
documents that are cited in, incorporated by reference in, or “integral” to the complaint. San Leandro Emergency Med. Grp.
Profit Sharing Plan v. Philip Morris Companies, Inc., 75 F.3d 801, 809 (2d Cir. 1996).
1. Failure to Exhaust Administrative Remedies
In 1996, Congress enacted the PLRA with the purpose of decreasing the number of inmate suits. See Porter v. Nussle, 534 U.S.
516, 524–25 (2002) (“Beyond doubt, Congress enacted § 1997e(a) to reduce the quantity and improve the quality of prisoner
suits; to this purpose, Congress afforded corrections officials time and opportunity to address complaints internally before
allowing the initiation of a federal case.”); see also Jones v. Bock, 549 U.S. 199, 223 (2007). Before prisoners are permitted
to bring an action for prison conditions pursuant to Section 1983, prisoners must exhaust their administrative remedies by
following the complaint procedure adopted by the New York State Department of Corrections and Community Supervision
(“DOCCS”). Hudson v. City of New York, 15 Civ. 4920 (PAC) (HBP), 2016 WL 3976399, at *2 (S.D.N.Y. June 23, 2016).
The PLRA states: “No action shall be brought with respect to prison conditions under section 1983 of this title, or any other
Federal law, by a prisoner confined in any jail, prison, or other correctional facility until such administrative remedies as are
available are exhausted.” 42 U.S.C. § 1997e(a). Each individual plaintiff must exhaust his own remedies prior to bringing a
1983 action based on prison conditions.
Exhaustion does not need to be pleaded in a complaint; failure to exhaust is a defense. Jones, 549 U.S. at 216; see also Ackridge
v. Aramark Corr. Food Servs., No. 16-CV-6301 (KMK), 2018 WL 1626175, at *9 (S.D.N.Y. Mar. 30, 2018) (“A plaintiff need
not plead that ... he did in fact exhaust [his] administrative remedies, because the ‘[f]ailure to exhaust administrative remedies is
an affirmative defense under the PLRA, not a pleading requirement.’ ”) (citing Williams v. Correction Officer Priatno, 829 F.3d
118, 122 (2d Cir. 2016)). Nonetheless, the City has moved, as it often does, for dismissal for failure to exhaust. Unfortunately,
the City did not make a motion to dismiss for lack of jurisdiction due to failure to exhaust – a motion pursuant to Fed. R. Civ.
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P. 12(b)(1), which can be supported by a factual record. That record, without which the exhaustion issue cannot be decided,
is within the City's control; it knows whether any or all of the Plaintiffs filed timely grievances and followed the grievance
procedure through to the end. But those facts are not before the court.
*4 Nor did the City support its Rule 12(b)(6) motion to dismiss with any evidence of non-exhaustion. Had it done so I could
have converted that aspect of the motion to an early motion for summary judgment pursuant to Fed. R. Civ. P. Rule 56, giving
Plaintiffs the opportunity (and the responsibility) to controvert any showing by the City that they had not exhausted. See e.g.,
Arnold v. Goetz, 245 F. Supp. 2d 527, 541 (S.D.N.Y. 2003).
Instead, the Corporation Counsel argued that failure to exhaust was apparent from the face of the Complaint, given the timeline
between the date of the incident, July 23, 2023, and the date Plaintiffs filed their Complaint, August 9, 2024. Dkt. No. 11, at 20–
21. To which Plaintiffs correctly responded that the City, which has the initial burden to sustain the defense of non-exhaustion,
failed to offer any evidence on the point. Dkt. No. 17, at 7.
My guess is that at least some, and quite possibly all, of the Plaintiffs did not in fact file a timely grievance or take all the appeals
required by the Department of Corrections grievance procedure – otherwise I imagine that counsel for Plaintiffs would have
attached proof of exhaustion to his response to the motion to dismiss. If I am correct, that would render this suit dismissible
with prejudice and without leave to amend as to any such Plaintiff, since the time for filing a grievance has long since expired.
However, that is just a guess. I have been given no evidence. And I most certainly do not agree with the Corporation Counsel's
position that failure to exhaust is apparent from the face of the Complaint; in fact, that argument is utterly absurd. 1 I am thus
constrained to deny the motion to dismiss on the ground of failure to exhaust. 2
I note that the exhaustion requirement applies only to the federal claim pursuant to Section 1983, and would not require dismissal
of any state law claims. However, Plaintiffs are advised that this court will not be exercising supplemental jurisdiction over any
state law claim, as the federal claim asserted against the City is being dismissed on the merits.
2. The Complaint Is Dismissed for Failure to Allege a Monell Violation
*5 Surprisingly, the only Defendant named in the instant complaint is the City of New York – no corrections officers or officials
were named, even as “John Does.” The city is sued under both federal and state law..
But a municipality cannot be held liable on a theory of respondeat superior for the federal constitutional violations of its
employees. Monell v. Dep't of Social Servs, 436 U.S. 658, 690–91 (1978). Rather, a municipality may only be held federally
liable if violations were committed pursuant to an official policy or custom of the municipality. Id. “Monell does not provide a
separate cause of action for the failure by the government to train its employees; it extends liability to a municipal organization
where that organization's failure to train, or the policies or customs that it has sanctioned, led to an independent constitutional
violation.” Segal v. City of N.Y., 459 F.3d 207, 219 (2d Cir. 2006) (emphasis in original). “Establishing the liability of the
municipality requires a showing that the plaintiff suffered a tort in violation of federal law committed by the municipal actors
and, in addition, that their commission of the tort resulted from a custom or policy of the municipality.” Askins v. Doe No. 1,
727 F.3d 248, 253 (2d Cir. 2013).
The complaint against the lone defendant named in this lawsuit must be dismissed because it fails, for two separate reasons,
to allege a Monell violation against the City of New York.
(a) No municipal policy or custom is alleged
To the extent that the Complaint asserts claims against the City pursuant to Section 1983, it must be dismissed because no
arguably plausible view of the facts suggests that what happened in the GRVC 5A Unit on July 23, 2023, was the result of any
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custom or policy of the City of New York. Not a single fact is alleged tending to show that the City had any custom or policy of
failing to remove prisoners from an area where they could see the dead body of another inmate, or that there was any arguable
failure to train corrections officers about what to do under the uniquely unfortunate circumstances of this case.
Unique, one-time events of the sort we have here are simply not susceptible to Monell liability. “Proof of a single incident of
unconstitutional activity is not sufficient to impose liability under Monell, unless proof of the incident includes proof that it
was caused by an existing, unconstitutional municipal policy[ ] [that] can be attributed to a municipal policymaker.” City of
Okla. City v. Tuttle, 471 U.S. 808, 823–24 (1985). It is hard to imagine a more “one off” set of facts than the facts in this case.
Not a single fact is pleaded tending to show that the City had any policy about what to do with prisoners if they were in the
presence of a dead body that could not be moved until an investigation was completed. Nor are facts alleged tending to show
that the City had any policy about what to do with prisoners who were faced with looking at something disturbing – anything
at all that might be disturbing. “[A] policymaker does not exhibit deliberate indifference for failing to train employees for rare
or unforeseen events.” Wray v. City of New York, 490 F.3d 189 at 196.
Therefore, Plaintiffs have not pleaded a Monell claim arising out of the failure to move them away from the cell block for a few
hours – unpleasant though the situation undoubtedly was. Id. 3 The uniqueness of the situation is in and of itself dispositive
of the motion to dismiss.
(b) No constitutional tort is alleged
*6 There is, however, a second reason why the Monell claim against the City of New York must be dismissed. Plaintiffs have
not plausibly alleged a viable claim of deliberate indifference to the conditions of their confinement. Put otherwise, Plaintiffs
have failed to plausibly allege that any individual employed by the City committed a constitutional tort. That being so, they
can assert no viable Monell claim against the City.
Plaintiffs allege that the City of New York acted with deliberate indifference to their mental health when its employees at DOCS
refused to move them out of the cell block during the six-hour period while the body remained on the floor of the cell block,
where the inmates could see it. See Dkt. No. 17, at 9. The Complaint does not indicate whether, at the time of the incident,
any, all, or none of the thirty-four named Plaintiffs were post-conviction prisoners or pretrial detainees, although an individual
plaintiff's status dictates whether his claims arise under the Eighth or the Fourteenth Amendment. 4 The Court will analyze
Plaintiff's claims under both frameworks.
To the extent that any of the plaintiffs is a sentenced prisoner, the Eighth Amendment requires corrections officials to take
reasonable measures to ensure the physical and psychological safety of convicted prisoners. Darnell v. Pineiro, 849 F.3d 17,
30 (2d Cir. 2017). “The Constitution ‘does not mandate comfortable prisons’ ... but neither does it permit inhumane ones, and
it is now settled that ‘the treatment a prisoner receives in prison and the conditions under which he is confined are subject to
scrutiny under the Eighth Amendment.’ ” Farmer v. Brennan, 511 U.S. 825, 832 (1994) (quoting Rhodes v. Chapman, 452 U.S.
337, 349 (1981), and Helling v. McKinney, 509 U.S. 25, 31 (1993)). To be liable for violating a prisoner's Eighth Amendment
rights, the plaintiff must allege facts that show that “(1) objectively, the deprivation the [detainee] suffered was ‘sufficiently
serious that he was denied the minimal civilized measure of life's necessities,’ and (2) subjectively, the defendant official acted
with ‘a sufficiently culpable state of mind ..., such as deliberate indifference to [detainee] health or safety, which includes the
risk of serious damage to ‘physical and mental soundness’ ” Darnell, 849 F.3d at 30 (2d Cir. 2017) (citations omitted).
“While there is no ‘static test’ to determine whether a deprivation is sufficiently serious,” the Second Circuit has reiterated that
“the proper lens through which to analyze allegedly unconstitutional unsanitary conditions of confinement is with reference
to their severity and duration.” Id. (citing Willey v. Kirkpatrick, 801 F.3d 51, 68 (2d Cir. 2015)). The Second Circuit has
rejected a “bright-line durational requirement for a viable unsanitary-conditions claim,” and has explained that “[t]he severity
of an exposure may be less quantifiable than its duration, but its qualitative offense to prisoner's dignity should be given due
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consideration.” Id. at 31. “Defendant[ ][ ] cannot overcome Plaintiff's claim for unconstitutional conditions of confinement
solely on the ground that the conditions lasted only a limited period of time,” Perkins v. Presley, No. 18 Civ. 3590 (MKV), 2022
WL 769339, at *7 (S.D.N.Y. Mar. 14, 2022) (emphasis added).
*7 Although the challenged condition here does not squarely fall under the exact scope of an unsanitary conditions of
confinements claim, it can be most closely analogized to such a claim, and the Second Circuit has applied the same analysis to
similar types of challenged conditions. Id. (citing Willey, 801 F.3d at 68–69). I conclude it is the appropriate analysis to use here.
The only thing that allegedly presented an excessive or serious risk to the Plaintiffs’ mental health is the failure, by unnamed
prison officials, to move them out of their Unit for six hours while another inmate's dead body lay within their view, halfway
in and halfway out of his cell. Dkt. No. 17, at 9. Although this incident was undoubtably distressing, its duration was so brief
that it does not rise to the level of a constitutional violation. Cases dealing with exposure to other distressing incidents in jails
make that abundantly clear.
In Singleton v. City of New York, No. 20-CV-8570 (ALC), 2022 WL 46200174, at *6 (Sept. 30, 2022), for example, my colleague
Judge Carter dismissed a conditions of confinement claim where the plaintiff alleged that he was transported on a bus littered
with urine and fecal matter for an unspecified number of hours without adequate ventilation. The case was dismissed because,
while the conditions pleaded were disgusting, their duration and severity of these disgusting conditions did not rise to the level
of the conditions of confinement claims the Second Circuit has recognized as constitutional violations.
Similarly, in Myers v. City of New York, No. 11 Civ. 8525 (PAE), 2012 WL 3776707, at *6 (S.D.N.Y. Aug. 29, 2012), my
colleague Judge Engelmayer found that plaintiff's allegation that he was left in a cell with a urine and filth-laden floor for sixteen
hours did not amount to a constitutional violation. In Evans v. Fogg, 466 F.Supp. 949, 950 (S.D.N.Y. 1979), the court found that
plaintiff's allegations that his cell was filthy and contained mice feces for a period of 24 hours was too brief to amount to cruel
and unusual punishment. In Flores v. City of New York, No. 21-CV-1680 (PGG) (KHP), 2022 WL 4705949, at *4, 15 (Aug. 8,
2022), Magistrate Judge Parker concluded that plaintiff's allegations of being held in a cell with fecal matter on the wall and in
the sink for 24 hours, was a “single, short exposure” that did not qualify as “objectively sufficiently serious to state a claim for
constitutional violation under existing case law.” And in Ortiz v. Department of Corr., No. 08 Civ. 2195(RJS)(HBP), 2011 WL
2638137, at *8 (S.D.N.Y. 2011), Magistrate Judge Pitman found that plaintiff's exposure to sewage overflow could not sustain
a conditions of confinement claim because the total exposure was “probably less than 24 hours.”
By contrast, in Darnell, plaintiffs succeeded in challenging their conditions of confinement where the plaintiffs experienced the
multiple indignities of inadequate sanitation, overcrowding, inedible food, extreme temperatures, and sleep deprivation for a
period lasting between 10 and 24 hours. 849 F.3d at 20, 23–26, 37. And in Willey v. Kirkpatrick, 801 F.3d at 55, 66, the plaintiff's
claim survived a motion to dismiss based on his allegations that he was held naked in solitary confinement for one to four weeks
and was exposed to human waste and poor ventilation during that period.
*8 The issue is not simply the amount of time but the indignity of the condition to which the plaintiffs were exposed. Courts
have found durations as short as a couple of hours sufficient to sustain conditions of confinement claims, but only when the
condition deprives the plaintiff of “a minimal civilized measure of life's necessities,” such as reasonable safety. Garcia v. Fischer,
No. 13 Civ. 8196, 2016 WL 297729, at *5. In Garcia, for example, Judge Briccetti found that the plaintiffs’ allegation that
they were exposed to heavy smoke for approximately two hours satisfied the objective prong of a conditions of confinement
claim because even the short exposure “pose[d] an unreasonable risk of serious damage to [their] future health.” Id., (citation
and quotation omitted).
Here, the Plaintiffs were not deprived of safety or any of life's necessities (food, air, light, clothing). The sight of part of a body
for six hours does not begin to compare with either the temporal scope, personalized nature, or mortal danger of the violations
in the cases where a constitutional violation was successfully pleaded. The risk from keeping the plaintiffs in their cells for six
hours while the investigation into the suicide continued does not compare to two hours of smoke inhalation, and or a month in
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solitary confinement without clothing or adequate ventilation. It feels far more similar to exposure to bodily wastes or sewage
– genuinely unpleasant experiences, but not actionable when the exposure lasts for a period as brief as six hours.
To the extent we are dealing with Plaintiffs who are pre-trial detainees (which is likely many, if not all, of the named
Plaintiffs), their claims of unconstitutional conditions of confinement are governed by the Due Process Clause of the Fourteenth
Amendment.” Darnell, 849 F.3d at 29 (citations omitted). A pretrial detainee may prevail in a claim for deliberate indifference
when the allegations are sufficient to establish that the prison official “kn[e]w[ ] of and disregard[ed] an excessive risk to inmate
health or safety.” Constant v. Prack, No. 16-cv-3985, 2019 WL 3287818, at 14 (S.D.N.Y. July 19, 2019) (citing Wilson v. Seiter,
501 U.S. 294, 308 (1991)) (emphasis added).
Plaintiffs allege that they were exposed to a condition that was likely to cause their mental health to be impacted. They cite to
the fact that individuals from “mental health” provided group and individual mental health counseling for approximately two
weeks after the incident as proof that unnamed DOCS officials (none of whom has been sued) knew that forcing Plaintiffs to
remain in an area where a dead body was visible for six hours presented a mental health risk. Dkt. No. 1, at ¶¶ 70–72.
However, even assuming, arguendo, that the mental health treatment they received established that DOCS knew that exposure
to the sight of the body for six hours created a risk of some mental health issues, there are no allegations that the risk of long-term
mental health damage from this incident was “excessive.” Furthermore, the facts pleaded demonstrate that DOCS officials –
understanding that the inmates had been exposed to what was at the very least something very distressing – were not indifferent
to the situation, but did something about it. They called in mental health counselors, prescribed psychiatric medication and
administered psychiatric care after the incident. This means that whatever risk or mental trauma existed as a result of a very
unfortunate situation was not “disregarded.” Id. ¶ 73.
The situation here is no different than it was in Rosado v. Herard, No. 12 Civ. 8943 (PGG) (FM), 2014 WL 1303513, at *7
(S.D.N.Y. March 25, 2014), where my colleague Judge Gardephe – applying the standard for subjective deliberate indifference
under the Fourteenth Amendment – concluded that a pretrial prisoner could not sustain a deliberate indifference to mental
health claim where he was provided psychiatric medication and treatment while incarcerated. Similarly, in Jones v. Westchester
County, No. 20-CV-08542 (PMH), 2022 WL 1406591, at *4 (May 4, 2022), my colleague Judge Halpern found that the plaintiff
had not satisfied the subjective prong of a deliberate indifference claim where he claimed that the defendant's COVID-19 safety
measures were not followed rigorously enough. Here, Plaintiffs not only concede that they received psychiatric care in the
weeks following the incident, they allege no facts to suggest that such treatment was either delayed, denied, or insufficient.
*9 Because Plaintiffs’ factual allegations are not sufficient to plead a deliberate indifference claim, no underlying constitutional
violation is adequately pleaded. The Monell claim against the City must be dismissed on that ground as well.
3. The Motion to Dismiss the State Law Claim is Granted
A district court may decline to exercise supplemental jurisdiction over state-law claims when it “has dismissed all claims over
which it has original jurisdiction.” 28 U.S.C. § 1367(c)(3). This district court routinely dismisses without prejudice state law
claims after all federal claims to which they are appended have been dismissed.
Because I have dismissed Plaintiffs’ federal claims against the City, I decline to exercise supplemental jurisdiction over any state-
law claims asserted against the City in the pleading. See Kolari v. New York-Presbyterian Hosp., 455 F.3d 118, 122 (2d Cir. 2006)
(“Subsection (c) of § 1367 ‘confirms the discretionary nature of supplemental jurisdiction by enumerating the circumstances in
which district courts can refuse its exercise.’ ”) (quoting City of Chicago v. Int'l Coll. of Surgeons, 522 U.S. 156, 173 (1997)).
Dismissal of those claims is without prejudice. Of course, if Plaintiffs reassert any state law claims against the City in any court,
they will have to plead affirmatively that each of them individually and timely filed the requisite Notice of Claim. Davidson
v. Bronx Mun. Hosp., 64 N.Y.2d 59, 61–62 (1984).
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CONCLUSION
For the foregoing reasons, the Court GRANTS the Motion to Dismiss with prejudice.
The time for leave to amend the complaint as a matter of course expired 21 days after the filing of the motion. Fed. R. Civ. P.
15(a)(1)(B). As a result, the Plaintiffs can now file an amended complaint only with leave of court. Fed. R. Civ. P. 15(a)(2). As
I can see no conceivable basis on which amendment would not be futile – and this is on the merits, as well as without regard to
the issue of exhaustion – I deny Plaintiffs’ informal request, made in their brief in opposition and without attaching a proposed
amended complaint, for leave to amend in order to assert further claims against the City. Of course, the statute of limitations on
a Section 1983 claim has not yet run, so if Plaintiffs believe that they could assert a viable federal constitutional claim against
persons not already sued, they are welcome to try. But the discussion in this opinion will apply equally to such claims.
The Clerk of the Court is respectfully requested to remove Dkt. No. 10 from the Court's list of open motions.
This constitutes the decision and order of the Court. It is a written decision.
All Citations
Not Reported in Fed. Supp., 2025 WL 437699
Footnotes
1 Corporation Counsel cites Caraballo v. Dep't of Corr., No. 22-cv-00971 (JLR), 2022 WL 16555313, at *3 (S.D.N.Y.
Oct. 31, 2022) to support this proposition. However, the plaintiff in that case filed his complaint just five days after the
underlying event. Id., Given the length of time required to complete the grievance procedure, the court concluded that
it was apparent from the face of the pleading that the petitioner had failed to exhaust prior to filing his complaint. Id.
(citing Price v. City of New York, No. 11-cv-6170 (TPG), 2012 WL 3798227, at *3 (S.D.N.Y. Aug. 30, 2012)). Here,
Plaintiffs filed their Complaint over a year after the July 23, 2023 incident; it does not ordinarily take a year to complete
the grievance process, so one cannot say that it is apparent from the swiftness with which the lawsuit was filed that the
plaintiffs here failed to file grievances and take appropriate appeals.
2 Because failure to exhaust would render futile any effort to amend the pleading, I would ordinarily deny this aspect of
the City's motion without prejudice; and if Plaintiffs were to try to amend they would have to establish lack of futility
by proving that they had in fact exhausted their administrative remedies. However, for the reasons discussed in this
opinion, I can see no merits-based basis on which the Plaintiffs could successfully amend their complaint, against either
the City or any as-yet-unnamed corrections official. Therefore there is no need to allow for the development of a record
on the futility of amendment due to non-exhaustion.
3 Had any corrections officer been sued, it is virtually certain that the complaint would have been dismissed as against
him/her on the ground of qualified immunity, since the unusual fact pattern would not have led a reasonable corrections
officer to believe his actions violated a clearly established right. See, e.g., House v. City of N.Y., No. 18 Civ. 6693 (PAE)
(KNF), 2020 WL 6891830, at *17 (S.D.N.Y. Nov. 24, 2020).
4 Plaintiffs’ Complaint also purports to rely on the Fourth, Fifth, and Sixth Amendments. Dkt. No. 1, at ¶ 79. There is no
fact alleged that would show that Plaintiffs were subjected to an unreasonable search or seizure in violation of the Fourth
Amendment, or to violations of the Sixth Amendment's guarantee of a speedy and public trial, so any claim allegedly
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arising under the Fourth Amendment and Sixth Amendment must be summarily dismissed. As for the Fifth Amendment,
its guarantee that no person shall be deprived of life, liberty, or property without due process of law applies to the states
only through the Due Process Clause of the Fourteenth Amendment, Blandon v. Capra, No. 17-CV-65 (KMK), 2017
WL 5624276, at *12 n. 2 (S.D.N.Y. Nov. 20, 2017) so to the extent that a deliberate indifference claim could arise under
the Fifth Amendment, it is coterminous with the Plaintiffs’ claims under the Eighth and/or Fourteenth Amendments.
End of Document © 2026 Thomson Reuters. No claim to original U.S. Government Works.
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2022 WL 4705949
Only the Westlaw citation is currently available.
United States District Court, S.D. New York.
Gabriel FLORES, Plaintiff,
v.
CITY OF NEW YORK, et al., Defendants.
21-CV-1680 (PGG) (KHP)
|
Signed August 8, 2022
Attorneys and Law Firms
Gabriel Flores, Ossining, NY, Pro Se.
Alan Howard Scheiner, Andrew B. Spears, Andrey Udalov, Brachah Goykadosh, Sharon Vicky Sprayregen, New York City
Law Department, New York, NY, for Defendant The City of New York.
Andrew B. Spears, New York City Law Department, New York, NY, for Defendants Hazel Jennings, Kenneth Stukes, Becky
Scott, Heidi Grossman, Jean H. Rene, Jonelle Shivraj, Tiffany Morales, JoAnne Matos, ADW Carter, ADW Henry, ADW
Philips, ADW Louis, ADW Flemming, Bernard Mathis, Capt. Ballah, Captain Law, Capt. Farrow, Capt. Peters, Capt. Arias,
Capt. Blake, Capt. Loiseau, Capt. Vallejo, Capt. Moodie, Capt. Palmer-Campbell, CO Young, CO McNeil, CO Hickson, CO
Rodriguez, CO Ritter, CO Reid, CO Ramirez, CO Nzeama, CO Taylor, CO Drumright, CO Day, CO Oxley, CO Humphries,
CO Monteregro, CO Likoua, CO Castro, CO Vasquez, CO Lawrence, CO Smith, CO Williams, CO Darbeau, CO Purnhagen,
CO Peay, CO Quinones, CO Dychese, CO Edmund, CO Chuck, CO. Feliz, CO Guzman, Capt. Subervi, Dejesus, White, CO
White, Capt. Camacho.
REPORT AND RECOMMENDATION
KATHARINE H. PARKER, United States Magistrate Judge
*1 TO: THE HONORABLE PAUL G. GARDEPHE, UNITED STATES DISTRICT JUDGE
FROM: KATHARINE H. PARKER, UNITED STATES MAGISTRATE JUDGE
Pro se Plaintiff Gabriel Flores commenced this action seeking damages and injunctive relief under 42 U.S.C. § 1983, alleging in
his Second Amended Complaint 1 (“SAC”) that the City of New York and 65 individual Defendants violated his constitutional
rights while he was a pretrial detainee in the custody of the City of New York Department of Correction (“DOC”) and housed
at the Otis Bantum Correctional Center (“OBCC”), the Vernon C. Bain Center (“VCBC”), Manhattan Detention Complex
(“MDC”), and the George R. Vierno Center (“GRVC”). In light of Plaintiff's pro se status, the Court construes the complaint
as asserting claims that Defendants: (1) imposed restrictions on him that violated Minimum Standards of the New York City
Board of Correction (“BOC”); (2) violated his First Amendment right to free exercise of religion and rights under the Religious
Land Use and Institutionalized Persons Act of 2000, pursuant to 42 U.S.C. § 2000cc et seq., (“RLUIPA”) because his Quran
and prayer rug were confiscated, he was not provided suhoor meals during Ramadan, and not permitted to meet with an Imam;
(3) violated his rights under the Equal Protection Clause of the Fourteenth Amendment insofar as a prison Command Level
Order (“CLO”) mandated he be given a Bible rather than allowing for a Quran; (4) violated his right to meaningful access to
his counsel and the courts; (5) imposed restrictions on him in retaliation for his refusal to assault another inmate, Alexander
Williams Jr. (“Williams”); (6) failed to provide medical care; (7) violated his rights by placing him in enhanced restraints when
outside of his cell; (8) used enhanced restraints on him without an opportunity for a hearing in violation of due process; (9)
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failed to prevent him from being attacked and facilitated the attack; (10) used excessive force; and (11) served him contaminated
food. Plaintiff further alleges that Defendant City of New York wrongfully instituted Command Level Order (“CLO 370.20”)
and negligently hired, retained, trained, and supervised its employees.
On November 8, 2021, the City of New York moved to dismiss the SAC pursuant to Federal Rules of Civil Procedure 12(b)(6).
(ECF No. 35.) On July 8, 2022, individual Defendants who waived service joined the motion to dismiss. 2 (ECF No. 69.) For
the reasons set forth below, I recommend that the motion to dismiss the SAC be granted in part and denied in part. 3
FACTUAL ALLEGATIONS
*2 The following facts, taken from the SAC, are presumed true for purposes of this motion and all reasonable inferences
are drawn in Plaintiff's favor. Plaintiff brings this case complaining about various conditions of confinement and treatment he
received while he was in the DOC's custody. On March 5, 2020, while Plaintiff was housed in 5 West of OBCC, he was attacked
outside his cell by unknown persons when CO Chuck and CO Smith allowed him to leave his cell despite ADW Velasquez's
order to the contrary, and they stood a few feet away doing nothing to stop the attack. (SAC ¶ OB-3.) According to Plaintiff,
Defendants have an illegal “custom policy” of housing detainees based on their “SRG” (security risk group) status instead of
their actual classification score, which creates “gang houses or ‘SRG CRIBS.’ ” (SAC ¶ OB-4.) On July 4, 2020, while Plaintiff
was housed in the VCBC protective custody unit 3-CA, Plaintiff was beaten in in the shower by six detainees while CO Feliz
and CO Guzman watched and instructed assailants to kick and punch Plaintiff and allowed the assailing detainees to punch
Plaintiff in the face while Defendants were holding his arms to take him outside the shower area. 4 (SAC ¶ VC-2.)
1. Judicial Lockdown Orders (collectively the “JLO”)
While Plaintiff was in the custody of the DOC's custody pending criminal charges against him, Justice Peter F. Vallone Jr. of
the New York Supreme Court, Queens County, issued an order on August 10, 2020, directing that Plaintiff be subject to certain
restrictions in prison to ensure, to the extent possible, that he is unable to communicate with or pass any material to any other
inmates. (ECF No. 36-2.) On September 14, 2020, Justice Evelyn Braun of the New York Supreme Court, Queens County,
issued an order adding a telephone number for Plaintiff's attorney (ECF No. 36-3), and on April 19, 2021, Justice Stephanie Zaro
of the New York Supreme Court, Queens County, issued an order indicating a different attorney for Plaintiff (ECF No. 36-4).
The JLO imposed various restrictions on Plaintiff, directing that: (1) Plaintiff be housed “in a twenty-three (23) lock-down area,
on lock-in-feed status, to be separated from all other inmates in the area in such a manner to prevent him, to the extent possible
from communicating with or passing material to other inmates;” (2) Plaintiff be barred from any visits except with his attorney;
(3) Plaintiff be barred from any phone calls except to his attorney; (4) Plaintiff be housed “in a separate holding pen in which
no other inmates are housed” to prevent communication with and passing of material to other inmates; (5) Plaintiff be barred
from sending any mail except to his attorney; (6) Plaintiff's letters to his attorney had to have a cover sheet with the name and
address of his attorney and be given to the captain supervising Plaintiff to forward them to the jail security officers to in turn
forward to Plaintiff's attorney; (7) to the extent that the DOC can arrange a procedure for doing so, Plaintiff be provided with
one hour of recreation each day in an area outside of his cell where he is not able to contact other inmates or pose security risk;
(8) if requested by Plaintiff, law library, commissary and religious services be brought to his cell; and (9) when any civilian
must enter the housing area where Plaintiff is housed, they shall be accompanied by the captain who shall ensure that Plaintiff
is not given any materials other than those needed for medical treatment. (ECF Nos. 36-2, 36-3, 36-4.)
2. Allegations Related to MDC
On September 23, 2020, while he was housed at the MDC, Plaintiff chewed on a piece of glass in his meal, which caused
bleeding, and he found more pieces of glass of a significant size in his rice. (SAC ¶ MD-1.) Plaintiff notified the floor officer,
who ordered all detainees to stop eating, after which Plaintiff was screened by medical staff in the facility triage area. (Id.)
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*3 On November 1, 2020, Plaintiff was eating his evening meal when he chewed on and spat out an inedible mass, discovering
it was a dead mouse. (SAC ¶ MD-2.) Plaintiff notified the duty officer about this, who in turn notified ADW Aganwa, who
took photographs of the dead mouse while still in the tray. (Id.). Plaintiff was then screened by medical staff and the incident
was documented. (Id.)
3. Plaintiff's Arrival at GRVC and Command Level Order (“CLO 370.20”)
On November 2, 2020, Plaintiff was moved to the GRVC housing unit 1a. (SAC ¶¶ 2-3.) Pursuant to the JLO, DOC designated
Plaintiff as a centrally monitored inmate who should be placed in a centrally monitored case (“CMC”) housing with waist chains
and leg irons to be worn when outside the facility and during transport. (SAC Ex. 11.)
The CLO 370.20, effective November 2, 2020, states that its purpose is “to establish policy and procedures for the Care, Custody
and Control of the inmates under Court Ordered lockdown status.” (SAC Ex. 11.) It provides that the inmates housed in court-
ordered lockdown status shall be in “[t]wenty-three (23) hour lock-in, fed-in status” and shall be allowed to possess in their cell
one Bible, three magazines, three books, one bar of soap, one container of shampoo, one toothbrush, one toothpaste, one plastic
cup, one towel and a deodorant. (Id.) It also provides, inter alia, that: (1) “[i]nmates in lock-down status shall not be removed
from their cells unless a Captain is present;” (2) “[w]henever a Court Ordered Lock-Down Inmate is removed from the housing
area, he shall be restrained in leg irons, waist chains and mitts” and “shall be under one-on-one observation of a Correction
Officer to assure no communication with any other inmate(s), verbally, in writing or through hand signs;” (3) “these inmates
shall be strip-searched, and their property carefully searched on a daily basis;” (4) “[i]nmates will make all requests for Law
Library materials in writing,” which “will be forwarded to the Security Office who will obtain copies of the requested materials
and place same in the inmate blue storage bin;” (5) “[t]he assigned Captain will collect all letters written by the inmate” and “will
turn them over to the Security Office,” and no inmates in court-ordered lockdown status will be permitted to send out any written
or other type of communication; (6) “[t]he court ordered inmates are barred from Visits and Telephone calls to anyone other than
their attorney of record,” and “[a]ll calls will be placed between the hours of 1330 – 1430 hours and 1630 – 1730 hours;” (7)
“[i]nmates will be afforded a ten-minute shower, three (3) times per week,” and “a captain shall be present when the inmate is
removed from his cell to the shower and again when he is returned from the shower to his cell;” (8) no incoming mail shall be
forwarded to the inmates housed in the court-ordered areas until first forwarded to the GRVC Security Office and “approved by
the Commanding Officer of his/her designee;” (9) “[t]he only items inmates housed in Court Ordered areas may purchase from
commissary are: 1. Soap 2. Shampoo 3. Deodorant 4. Toothpaste 5. Paper;” (10) “[i]f these inmates request religious services,
the Chaplain will be called to visit them;” (11) “[a]ny necessary medical or mental health services are to be provided to these
inmates in the housing area,” and they “will not be removed to go to the Clinic unless it is physically impossible to provide
them with necessary medical services in the cell/housing area;” and (12) inmates “may be afforded recreation in accordance
with the details delineated in the court order or as amended in a separate memo,” and they “will be restrained in waist chains
handcuffs and mitts whenever they are out of their cells for recreation.” (SAC Ex. 11.)
4. Minimum Standards
*4 Plaintiff asserts that subjecting him to the CLO 370.20 violates BOC's Minimum Standards that: (1) “prisoners shall not
be restricted in their communication with their attorney” (SAC ¶11, Policy § 1-08(b)(1)); (2) “prisoners shall be entitled to
access courts, attorneys, legal assistants, and legal materials (id., Policy § 1-08(a)); (3) “all prisoners shall be permitted to
shave daily” (id., Policy § 1-03(c)(1)); (4) “recreation periods shall be at least one hour” (id., Policy § 1-06(c)); (5) “showers
hot and cold shall be made available to prisoners daily” (SAC ¶12, Policy § 1-03(b)(1)); (6) “each law library shall contain
necessary research material which shall be kept properly updated and supplemented and shall be replaced without undue
delay” (SAC ¶28, Policy § 1-08(g)); (7) “prisoners shall have reasonable access to typewriters, dedicated word processors, and
photocopies” (id., Policy § 1-08(g)(2)); and (8) “tele-communications between prisoners and attorneys shall be kept confidential
and protected” (SAC ¶32, Policy § 1-08(c)(5)).
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5. Allegations Related to GRVC
a. Showers, Razor, Law Library, Unsanitary Cell, Recreation, Phone Calls to Attorney and Confidentiality
Plaintiff alleges that when he was transferred to GRVC on November 2, 2020, he was stripped and searched in front of all
persons present in the intake area (SAC ¶ 1) and placed in a cell without a television, typewriter, and legal kiosk. (SAC ¶¶
2-3.) Plaintiff's request for his daily shower, razor, recreation, law library and sick call were denied on November 3 by Deputy
Warden Shivraj, CO Purnhagen and ADW Carter. (SAC ¶¶ 4-7.) On November 4, upon arrival to his cell #12 in unit 2A, plaintiff
observed from the outside leftover trays and trash on the floor and requested permission to sanitize the cell, but CO Hickson
denied the request placing Plaintiff inside the cell where Plaintiff found fecal matter splattered on the walls and sink, and dried
toothpaste and mucous in the sink. (SAC ¶ 9.) Plaintiff's requests for shower were denied on November 4 by CO Drumwright
and CO Nzeama, who did not allow Plaintiff to clean his cell, forcing Plaintiff “to sit among the sewage waste and toilet water
that flooded the cell” on that day, and ADW Henry denied Plaintiff a shower, razor, phone calls, recreation, law library, sick
call, and mental health services. (SAC ¶¶ 10-12.)
On November 5, Plaintiff's request for shower, razor, recreation, and a phone call to his attorney were denied by CO Ramirez,
Captain Blake, ADW Henry, and CO Edmund. (SAC ¶¶ 15-19.) On November 6, CO Ramirez denied Plaintiff's request for
shower, razor, law library and recreation. (SAC ¶ 21.) Plaintiff was granted a shower later that day but refused to walk to the
showers in protest of the conditions to which he was being subjected. (SAC ¶¶ 22-23.) Also, on that day, CO Hickson provided
Plaintiff a phone call to his attorney; however, CO Hickson listened to the conversation, commented on Plaintiff's grievances
by stating that Warden Dunbar will retaliate against Plaintiff if she finds out about them. (SAC ¶ 24.) CO Hickson also shared
Plaintiff's grievances with CO McNeil. (Id.)
Plaintiff's requests for a shower, razor, recreation, law library and phone calls were denied on November 7 by Captain Vallejo
due to the CLO 370.20. (SAC ¶26.) On the same day, law library services were provided to Plaintiff by CO “Humphries #4883,”
who informed Plaintiff that the law library legal kiosk was inoperable. (SAC ¶ 28.) Plaintiff alleges that he was informed that no
recreation equipment is available to him and that he would have to be in enhanced restraints during the recreation time, which
deterred Plaintiff since he could not engage in a meaningful recreation. (SAC ¶ 29.)
Plaintiff asserts that on November 8, CO Young placed a phone call to Plaintiff's attorney and informed Plaintiff that the attorney
did not answer (SAC ¶ 30) and, on November 9, “CO White #8507” placed a phone call to Plaintiff's attorney and informed
him that the call was directed to voicemail (SAC ¶ 32), which Plaintiff had no way of verifying. According to Plaintiff, on
November 9, “White #8507” offered Plaintiff a phone call to his attorney, but Plaintiff requested another time knowing that his
attorney is not available, which was denied. (SAC ¶ 34.) On November 10, Captain Loiseau and CO Taylor denied Plaintiff's
request for shower. (SAC ¶¶ 35-36.)
*5 On November 11, ADW Carter ordered CO Young not to allow Plaintiff to call his attorney. (SAC ¶ 39.) Plaintiff's shower
was also denied by CO Sherma on November 12. (SAC ¶ 40.) Plaintiff was deprived of phone calls on November 15 by
“defendants from the security rank and file.” (SAC ¶ 42.) Plaintiff denied CO Dychese's offer to go to recreation on November
16 because there was no recreation equipment, and he would have to be placed in enhanced restraints. (SAC ¶ 43.) Plaintiff's
requests to shower were denied on November 27 by CO Montenegro (SAC ¶ 63), on November 28 by CO Darbeau (SAC ¶
64), and on December 1 by CO Lawrence (SAC ¶ 65).
On December 9, Plaintiff received an affirmation of his grievance about the lack of recreation equipment and the use of enhanced
restraints during recreation, but Warden Rene “nullified plaintiff's affirmation” and his right to recreation, including recreation
equipment. (SAC ¶ 70.) According to Plaintiff, Warden Rene “is one that allowed a custom policy (CLO 370.20) to exist” due to
Warden Rene's “absolute authority over the facility.” (Id.) On December 17, Chief Becky Scott (“Chief Scott”) denied Plaintiff's
grievance concerning recreation equipment. (SAC ¶ 71.)
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On January 10 and 11, 2021, Captain Peters denied phone calls to Plaintiff. (SAC ¶¶ 77-78.) On January 11, Plaintiff refused
to return to his cell because he was not afforded phone calls for two days, and he “climbed atop a ledge that was twenty feet
above ground level and refused to come down until someone had answers as to why Plaintiff had not used the phone in two
days.” (SAC ¶ 82.) Captain Arias ordered that Plaintiff be pulled down, and “CO Smith #1650” jumped and grabbed Plaintiff,
causing him to fall to the ground and sustain “a deep, vertical scrape down plaintiffs back.” (SAC ¶ 83.)
On March 1, 2021, Plaintiff received a disposition on his grievance concerning recreation, notifying him that the adequate
recreation equipment was installed in his recreation area. (SAC ¶ 97.) Plaintiff did not receive recreation services on May 16,
19, 20, 22, 29, and 30, June 1 and 2, 2021. (SAC ¶¶ 109-16.)
b. Enhanced Restraints
On November 3, ADW Henry recited the content of the CLO 370.20 to Plaintiff (SAC ¶ 5), and Captain Mathis informed
Plaintiff, when he moved him to unit 2A on November 4, about the CLO 370.20 requirements, including enhanced restraints
in which Plaintiff was placed by CO Hickson, CO Reid, “White # 8507” and CO Ritter under Captain Mathis's supervision.
(SAC ¶ 8.)
According to Plaintiff, on November 10, he asked Captain Ballah about the use of enhanced restraints upon arrival at GRVC
without a hearing, and Captain Ballah explained that he reviewed Plaintiff's information which did not indicate enhanced
restraints. (SAC ¶ 37.) Plaintiff alleges that Warden Dunbar implemented the CLO 370.20 “as a retaliatory tactic against another
detainee who has sued companions and colleagues of” Warden Dunbar. (SAC ¶ 37.)
c. Plaintiff's Mail
On November 10, CO Taylor refused to take Plaintiff's mail for his attorney, referencing the CLO 370.20 restrictions. (SAC ¶
36.) On November 11, CO Young denied Plaintiff's request to send mail to his attorney and threatened to spray Plaintiff with
a chemical if he said another word. (SAC ¶¶ 38-39.) On November 16, CO White and CO McNeil opened and read Plaintiff's
legal mail from his attorney and discussed Plaintiff's criminal case, CO McNeil asked CO White how much time he thinks
Plaintiff would get. (SAC ¶ 44.) On November 17, Plaintiff gave his legal mail addressed to his attorney to ADW Carter, ADW
Carter handed it to CO McNeil, who opened, read it, threw it away and started to speak loudly about details of the Plaintiff's
criminal case. (SAC ¶ 48.)
*6 On November 16, CO McNeil refused to deliver a package with clothing that the facility received via UPS under tracking
number 950-516-835-8639, which Plaintiff's attorney confirmed. (SAC ¶¶ 44-45.) CO McNeil told Plaintiff that Plaintiff would
never receive the package because he took it. (SAC ¶ 45.) After several attempts to obtain his package, Plaintiff became sick
and medical emergency was called to take him to the facility clinic. (SAC ¶ 46.) Upon return to his cell in enhanced restraints,
Captain Palmer-Campbell “squeezed plaintiff's cuffs around his wrists to the last click” and ordered that Plaintiff stay in the
cell like that all night, causing Plaintiff's hands to become numb after several hours. (Id.) The following day around 6:30 a.m.,
ADW Carter refused to take off the restraints when Plaintiff requested, leaving Plaintiff restrained until 11:30 a.m., when ADW
Carter returned and ordered “White #8507” to remove the restraints. (SAC ¶ 47.)
d. Cell Extraction and Excessive Force
On November 23, 2020, CO Quinones denied Plaintiff a shower. (SAC ¶ 49.) In anger, Plaintiff threw things out of his cell
and flooded his cell. (Id.) On November 24, Warden Dunbar came to Plaintiff's cell with “White# 8507” and CO Hickson, told
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Plaintiff to pack because he was moving to another cell, and instructed “White #8507” to find a copy of the CLO 370.20 in
Plaintiff's belongings and tear it apart, which prompted Plaintiff to block access to his property. (SAC ¶ 51.) Warden Dunbar
instructed CO Day not to feed Plaintiff or provide any service until Plaintiff complied with her order to move to another cell.
(SAC ¶ 52.) Thereafter, Captain Blake, “Humphries #13844,” CO Castro, CO Likoua, “Smith #1753,” “Vasquez # 11590,” and
“Williams #3906” came to Plaintiff's cell whereby Captain Blake demanded that Plaintiff leave his cell willingly or be removed
by force. (SAC ¶ 53.) When Plaintiff “placed his hands out of the slot to show that he was of no threat,” Captain Blake ordered
that the cell door powered by an electric automatic hydraulic gearing system be opened while Plaintiff's hands were still in the
slot, causing Plaintiff's “arms to be pinned bilaterally by both the threshold of the cell door frame and the feeding/cuffing door
port with the force of the auto-hydraulic gear pushing backward onto the door track, trying to achieve full opening.” (SAC ¶
57.) During that time, “Humphries #13844,” CO Castro and CO Likoua were yanking and bending Plaintiff's arms in an attempt
to have Plaintiff submit and inflicting pain. (Id.) Captain Blake then deployed a chemical spray into Plaintiff's face, blinding
him and causing respiratory obstructions, after which he was taken to the clinic in enhanced restraints. (SAC ¶ 53.) Plaintiff
sustained bruises, lacerations, and subsequent scaring to his left forearm. (SAC ¶ 57.)
e. Smoke Inhalation
On November 24, 2020, a fire broke out in Plaintiff's unit, and he could not breath and started vomiting due to the smoke
inhalation. (SAC ¶ 62.) CO Lawrence and CO Oxley denied Plaintiff's request to call medical emergency where CO Oxley
told CO Lawrence “Fuck that nigga. He can breathe. Pay him no mind.” (Id.) On January 11, 2021, Plaintiff set fire in his cell
because he did not receive telephone calls for two days. (SAC ¶ 80.) Plaintiff's cell became overcome with smoke and soot
and Plaintiff could no longer breath, but ADW Louis instructed Captain Loiseau not to open Plaintiff's cell door. (Id.) Captain
Loiseau “sat outside of plaintiff's cell and watched him choke and gasp for air before finally allowing Plaintiff out of cell,” and
taking him to the clinic for smoke inhalation. (Id.) When Plaintiff was returned to his cell, it was covered in smoke and soot,
and he was not given an opportunity to sanitize it or take a shower after the fire. (SAC ¶ 81.)
f. January 13, 2021 Search
On January 13, 2021, CO Reid, CO Ritter and ADW Carter conducted a property and strip search of Plaintiff at his cell. (SAC
¶ 86.) When Plaintiff was directed to take off his clothes, he initially complied. (Id.) CO Ritter placed Plaintiff's clothing on the
handrail of the top tier prompting Plaintiff's refusal to comply further with the search, and Captain Palmer-Campbell informed
Plaintiff that he was not getting his clothes back, so he may go back to his cell, and ordered his team to use force against Plaintiff,
who was taken to the ground. (Id.) CO Reid removed Plaintiff's sneakers and another officer “put their knees atop plaintiff's
neck, obstructing plaintiff's breathing.” (Id.) ADW Carter and CO McNeil entered Plaintiff's cell while he was restrained and
when they exited, CO McNeil was holding Plaintiff's photographs in his hand. (Id.) Plaintiff was then escorted to the clinic,
after which he was placed in enhanced restraints by ADW Phillips, despite Plaintiff's protest. (Id.)
*7 Upon return to his cell, plaintiff observed his property thrown about the cell, his photographs “ripped up” and thrown in the
toilet, and his clothing missing. (SAC ¶ 88.) Plaintiff was moved to cell #13. (Id.) Plaintiff's request to take a shower and access
a typewriter was denied by CO Lawrence, who informed Plaintiff that a new security memorandum was issued by Deputy
Warden Shivraj ordering facility officers not to allow detainees to shower during the period 3-11 p.m. or face disciplinary action
if they do. (SAC ¶¶ 89-90.) Plaintiff noticed that the toilet and sink in his new cell were inoperable, which he reported to Captain
Peters and asked to be moved to an operable cell, but Captain Peters denied the request. (SAC ¶ 91.) This caused Plaintiff to
“set a fire to get out of the inoperable cell he was placed in.” (Id.) Captain Peters reported the fire and took Plaintiff to the clinic,
after which he forced Plaintiff to return to the inoperable cell. (SAC ¶ 92.) Plaintiff was moved to cell #10 on January 14 by
Captain Parris, after which he was visited by Bennet Stein (“Stein”), Director of Policy and Communication, who discussed
the Plaintiff’ various grievances with him. (SAC ¶ 93.)
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g. Stolen Property
On November 24, 2020, Plaintiff was forcibly removed from his cell and had some of his property confiscated. (SAC ¶ 58.)
Plaintiff requested and received a receipt for his confiscated property from CO Young. (Id.) Plaintiff asked CO Young why his
Quran, prayer rug, and family photographs that were removed were not documented, to which CO Young stated that Plaintiff
can only have one Bible and “this is America! We don't like Muslims, Mexicans, or criminals.” (Id.) On November 25, Plaintiff
was informed that none of the items listed on Plaintiff's receipt were found in his property bag in the intake area. (SAC ¶ 59.)
On November 26, 2020, Plaintiff requested Defendant Oxley to call the facility Imam to request a new Quran. (SAC ¶ 61.)
The request was denied and Defendant Oxley stated chaplains may not give inmates any items pursuant to the CLO and that
a Quran was impermissible. (Id.)
On March 4, 2021, Plaintiff was informed by Social Services and the property intake officer that all his bags were searched in
the property room and no sweatpants belonging to Plaintiff were found. (SAC ¶ 99.) On March 23, “OCGS informed Plaintiff
that the only bag they located was listed under property receipt #176835119 from 11/21/19.” (SAC ¶ 100.) However, Plaintiff
was given a property receipt # 136741921 from the January 13, 2021 confiscation of a shirt, sweatpants and a pair of sneakers;
thus, that property was “stolen” as ADW Carter and CO Ritter promised. (Id.)
h. Retaliation
On November 4, 2020, Warden Dunbar entered Plaintiff's cell with ADW Henry, grabbed Plaintiff by his shirt and stated that
if Plaintiff continued to grieve about not receiving a shower and pursuing litigation, he would never shower, and directed CO
Nzeama to give Plaintiff reduced portions of food, which CO Nzeama did when Plaintiff's dinner arrived that day. (SAC ¶¶
13-14.) On November 13, Warden Dunbar directed CO Ritter and CO Hickson not to allow Plaintiff any phone calls or outgoing
mail, including to his attorney, because he had been “lodging complaints and ratting on us.” (SAC ¶ 41.)
On December 2, CO McNeil denied Plaintiff's request to call his attorney and informed him that the reason for denial was
Plaintiff's filing of complaints through his attorney. (SAC ¶ 66.) On December 3, ADW Carter informed Plaintiff that a television
would be installed in all detainees’ cells except the Plaintiff's because he continued to file complaints about a television. (SAC
¶ 67.) The television set was placed on the wall opposite Plaintiff's cell, so he had to stand up to watch television through a
four-inch-wide glass on the cell door from thirty feet away. (Id.)
On December 23, ADW Carter and CO Ritter propositioned Plaintiff to attack another inmate, Alexander Williams, in exchange
for their ensuring that he would receive all the required services. (SAC ¶ 72.) However, when Plaintiff refused and requested
to use the phone, CO Ritter denied the request based on Plaintiff's denial. (Id.) On December 24, CO Young denied phone calls
to Plaintiff. (SAC ¶ 74.)
*8 On January 8, 2021, Captain Law told Plaintiff that she received his recreation grievance noting that her team does not
afford recreational services. Captain Law stated that she would enforce the CLO 370.20 restrictions and “will personally see
to it that Plaintiff can't do anything outside, as far as engage in meaningful recreation because plaintiff will be in Enhanced
Restraint anyway,” deterring Plaintiff from engaging in recreation. (SAC ¶ 76.)
During an institutional search on January 20, 2021, Plaintiff was speaking with a grievance officer when Captain Law demanded
that Plaintiff returns to his cell. (SAC ¶ 94.) When Plaintiff explained that he was trying to submit a grievance, Captain Law
responded that Plaintiff is “doing too much with that grievance system. I'm getting E-Mails about putting a pull-up station in
the rec area. I don't care about none of that,” and “[k]eep with that grievance shit: we gon’ see about you.” (Id.) On January 29,
Plaintiff received a letter from Stein concerning Plaintiff's mental health and medical services and recreation. (SAC ¶ 96.) In
that letter, Stein acknowledged that it “appears that this previous policy CLO 104/19] is still in place.” (Id.)
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On March 4, 2021, Plaintiff filed a grievance against ADW Carter because every morning for two weeks since the January 13
search, when touring the unit at 6 a.m., ADW Carter would bang on Plaintiff's door to wake him up and taunt him about how
the security team had beaten him up, taken his clothes, especially his sweatpants on January 13, and how he ripped Plaintiff's
photographs of his son and his son's mother, threatening that Plaintiff could get murdered because ADW Carter runs the jail.
(SAC ¶ 98.) ADW Carter told Plaintiff that he ordered CO Ritter “to stash his sweatpants in defendant ADW Carter's # 94
personal office.” (Id.)
i. Privacy of Medical Information
On December 3, 2020, Plaintiff, who has a history of mental illness and self-harm, became dizzy and was informed that he
could only have a mental health staff counsel him through his cell door, without any privacy. (SAC ¶ 68.) Plaintiff was visited
by a mental health counselor, Mr. Roman, on December 9, who spoke loudly about Plaintiff's mental health diagnosis for all
to hear. (SAC ¶ 69.)
j. Religious Services
On November 26, 2020, CO Oxley denied Plaintiff shower and refused to call for the facility Imam. (SAC ¶ 60.) On January
6, 2021, Plaintiff was approached by a Rabbi who asked if he would like to speak about religion with a Chaplain instead of an
Imam, but Plaintiff responded that there was no reason he would speak with a Chaplain because he is a Muslim. (SAC ¶ 75.)
Other inmates were receiving religious services while Plaintiff's request for Imam was denied. (Id.)
On April 12, 2021, when the holy month of Ramadan commenced, Plaintiff began to fast in observance of the celebration,
but he never received “a suhur bag to break fast ... with Halal food” during the entire month of Ramadan that lasted through
May 12, despite requesting it and confirming that Plaintiff was enlisted as Muslim with the DOC before the Ramadan started.
(SAC ¶¶ 101-07.)
LEGAL STANDARD
1. Motion to Dismiss Under Rule 12(b)(6)
When considering a motion to dismiss for failure to state a claim upon which relief can be granted under Rule 12(b)(6), the
Court must accept all factual allegations in the complaint as true and draw all inferences in the Plaintiff's favor. Littlejohn v.
City of New York, 795 F.3d 297, 306-07 (2d Cir. 2015). To survive a motion to dismiss, the complaint must contain “sufficient
factual matter ... to ‘state a claim to relief that is plausible on its face.’ ” Ashcroft v. Iqbal, 556 U.S. 662, 663 (2009) (quoting Bell
Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007)). While detailed factual allegations are not required, the complaint must
contain more than mere “ ‘labels and conclusions’ or ‘a formulaic recitation of the elements of a cause of action’ ” or “ ‘naked
assertion[s]’ devoid of ‘further factual enhancement.’ ” Id. (quoting Twombly, 550 U.S. at 555, 557). As the Supreme Court
explained in Iqbal, the “plausibility standard ... asks for more than a sheer possibility that a defendant has acted unlawfully.” Id.
(quoting Twombly, 550 U.S. at 556). Dismissal is appropriate only when “it appears beyond doubt that the plaintiff can prove
no set of facts which would entitle him or her to relief.” Sweet v. Sheahan, 235 F.3d 80, 83 (2d Cir. 2000).
*9 “It is well established that the submissions of a pro se litigant must be construed liberally and interpreted ‘to raise the
strongest arguments that they suggest.’ ” Triestman v. Fed. Bureau of Prisons, 470 F.3d 471, 474 (2d Cir. 2006) (quoting Pabon
v. Wright, 459 F.3d 241, 248 (2d Cir. 2006)). At the motion to dismiss stage, the Court may consider any document “attached
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to [the complaint] as an exhibit or any statements or documents incorporated in it by reference,” as well as “documents that
the plaintiffs either possessed or knew about and upon which they relied in bringing the suit[.]” Rothman v. Gregor, 220 F.3d
81, 88 (2d Cir. 2000) (citations omitted).
2. Claims Under 42 U.S.C. § 1983
Section 1983 provides, in relevant part, that: “[e]very person who, under color of any statute, ordinance, regulation, custom, or
usage, of any State ... subjects, or causes to be subjected, any citizen of the United States ... to the deprivation of any rights,
privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured[.]” 42 U.S.C. § 1983. Section
1983 “is not itself a source of substantive rights, but a method for vindicating federal rights elsewhere conferred by those parts
of the United States Constitution and federal statutes that it describes.” Baker v. McCollan, 443 U.S. 137, 144 n.3 (1979); see
also Patterson v. County of Oneida, 375 F.3d 206, 225 (2d Cir. 2004). To state a claim under § 1983, “a plaintiff must allege the
violation of a right secured by the Constitution and laws of the United States and must show that the alleged deprivation was
committed by a person acting under color of state law.” West v. Atkins, 487 U.S. 42, 48 (1988) (citation omitted).
Failing to allege that a defendant was personally involved in, or responsible for, the conduct complained of renders a complaint
“fatally defective on its face.” Alfaro Motors, Inc. v. Ward, 814 F.2d 883, 886 (2d Cir. 1987) (quoting Black v. United States,
534 F.2d 524, 527-28 (2d Cir. 1976)). Equally, “group pleading,” which “fail[s] to differentiate as to which defendant was
involved in the alleged unlawful conduct,” is insufficient to state a claim under Section 1983. Myers v. Moore, 326 F.R.D.
50, 60 (S.D.N.Y. 2018) (quoting Leneau v. Ponte, 2018 WL 566456, at *15 (S.D.N.Y. Jan. 25, 2018)). To satisfy Rule 12(b)
(6), a plaintiff must make “specific factual allegations” against each defendant. Thomas v. Venditto, 925 F. Supp. 2d 352, 363
(E.D.N.Y. 2013) (citation omitted).
To establish a Monell claim to hold a municipality “liable under [Section] 1983 for the unconstitutional actions of its employees,
a plaintiff is required to plead and prove three elements: (1) an official policy or custom that (2) causes the plaintiff to be
subjected to (3) a denial of a constitutional right.” Batista v. Rodriguez, 702 F.2d 393, 397 (2d Cir. 1983). The plaintiff may
show the existence of such a policy or custom by identifying any of the following: (i) an express policy or custom; (ii) an
authorization of a policymaker of the unconstitutional practice; (iii) failure of the municipality to train its employees, which
exhibits a “deliberate indifference” to the rights of its citizens; or (iv) a practice of the municipal employees that is “so permanent
and well settled as to imply the constructive acquiescence of senior policymaking officials.” Corley v. Vance, 365 F. Supp. 3d
407, 438 (S.D.N.Y. 2019) (quoting Biswas v. City of New York, 973 F. Supp. 2d 504, 536 (S.D.N.Y. 2013)), aff'd sub nom. Corley
v. Wittner, 811 F. App'x 62 (2d Cir. 2020); see also Outlaw v. City of Hartford, 884 F.3d 351, 372-73 (2d Cir. 2018) (discussing
what constitutes official municipal policy and deliberate indifference).
3. Qualified Immunity
*10 “Qualified immunity shields government officials from liability for civil damages as a result of their performance of
discretionary functions and serves to protect government officials from the burdens of costly, but insubstantial, lawsuits.”
Lennon v. Miller, 66 F.3d 416, 420 (2d Cir. 1995) (citation omitted). “Government actors performing discretionary functions are
‘shielded from liability for civil damages insofar as their conduct does not violate clearly established statutory or constitutional
rights of which a reasonable person would have known.’ ” Id. (quoting Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982)); City
of Tahlequah, Oklahoma v. Bond, 142 S. Ct. 9, 11 (2021). “[T]he qualified immunity defense protects a government actor if
it was ‘objectively reasonable’ for him to believe that his actions were lawful at the time of the challenged act.” Id. (quoting
Anderson v. Creighton, 483 U.S. 635, 640, 641 (1987)). “The objective reasonableness test is met—and the defendant is entitled
to immunity—if ‘officers of reasonable competence could disagree’ on the legality of the defendant's actions.” Id. (quoting
Malley v. Briggs, 475 U.S. 335, 340-41 (1986)). The doctrine protects “all but the plainly incompetent or those who knowingly
violate the law.” City of Tahlequah, 142 S. Ct. at 11 (citing District of Columbia v. Wesby, 138 S. Ct. 577, 589 (2018)).
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It is well settled in this Circuit that a defendant's ability to rely on qualified immunity from liability is a question of law for the
court to decide only when the facts are not in dispute. Lennon, 66 F.3d at 421. In the context of a motion to dismiss, it must be
clear from the face of the pleading that conduct of the officer was objectively reasonable as a matter of law. Cf. Iqbal, 556 U.S.
at 671-672 (recognizing that denial of claim of qualified immunity on Rule 12(b)(6) motion can fall “within the narrow class
of appealable orders despite ‘the absence of a final judgment’ ”); Ford v. Miller, 2019 WL 6831640, at *14 (S.D.N.Y. Aug.
23, 2019), report and recommendation adopted, 2019 WL 4673445 (S.D.N.Y. Sept. 25, 2019) (on motion to dismiss, finding
officers entitled to qualified immunity because plaintiff failed to state a claim for violation of his constitutional rights; law was
clear that plaintiff's complaints did not constitute a protectable liberty interest).
DISCUSSION
1. RULE 8(A)(2) OF THE FEDERAL RULES OF CIVIL PROCEDURE
Defendants argue that Plaintiff's SAC, consisting of 132 paragraphs and 48 exhibits and containing “plaintiff's personal opinions
and recitation of alleged arguments plaintiff had with Correction Officers,” should be dismissed for failure to comply with
Federal Rule of Civil Procedure 8(a)(2), which requires that a pleading “contain ... a short and plain statement of the claim
showing that the pleader is entitled to relief.” Fed. R. Civ. P. 8(a)(2).
Dismissal of a complaint for failure to comply with Rule 8(a)(2) “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.” Salahuddin v. Cuomo,
861 F.2d 40, 42 (2d Cir. 1988) (citations omitted). Rule 8(a)(2) does not prohibit allegations of Plaintiff's personal opinions
and arguments Plaintiff had with Defendants, and Defendants do not assert that the SAC is confusing, ambiguous, vague, or
unintelligible. Thus, dismissal of the SAC pursuant to Fed. R. Civ. P. 8(a)(2) is not warranted.
2. LACK OF PERSONAL INVOLVEMENT
“It is well settled in this Circuit that ‘personal involvement of defendants in alleged constitutional deprivations is a prerequisite
to an award of damages under § 1983.’ ” Wright v. Smith, 21 F.3d 496, 501 (2d Cir. 1994) (quoting Moffitt v. Town of Brookfield,
950 F.2d 880, 885 (2d Cir. 1991)).
[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. The factors necessary to establish a [§ 1983] violation will vary with the constitutional
provision at issue” because the elements of different constitutional violations vary. The violation must
be established against the supervisory official directly.
*11 Tangreti v. Bachmann, 983 F.3d 609, 618 (2d Cir. 2020) (internal citations and quotation marks omitted).
Defendants argue that Plaintiff failed to allege any specific facts indicating personal involvement in the alleged violations of his
rights by the following Defendants: Kenneth Stukes (“Stukes”), Heidi Grossman (“Grossman”), Hazel Jennings (“Jennings”),
Chief Scott, Tiffany Morales (“Morales”) and Joanne Matos (“Matos”).
Plaintiff asserts only that Ballah “alluded to the possibility” that Stukes “had a hand in Plaintiff's movement” (SAC ¶37), and CO
McNeil told Plaintiff that Warden Rene “is going to back all plays that Chief Stukes, Chief Scott and Dunbar” (SAC ¶66). Apart
from mentioning Stukes in paragraphs 37 and 66, the SAC is devoid of any allegations against Stukes based on his conduct.
This is insufficient to state a claim against Stukes.
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Plaintiff alleges that “the BOC had already cc'd defendant Hazel Jennings, defendant Heidi Grossman, and OCGS that [the
CLO 370.20] is in direct conflict with Minimum Standards or Policy and/or Directive” (SAC ¶24), and Jennings and Grossman
were aware of Defendants’ violations of the Minimum Standards (SAC ¶28). Moreover, Jennings approved dissemination of an
erroneous pedigree sheet being aware that Plaintiff was not classified as an “ERS” (enhanced restraint status). (SAC ¶37.) Apart
from these paragraphs, the SAC is devoid of any allegations against Grossman and Jennings based on their conduct. Plaintiff's
conclusory allegations about what Grossman and Jennings were aware of, are insufficient to satisfy the personal involvement
requirement. See Ramsey v. Goord, 2005 WL 2000144, at *5 (W.D.N.Y. Aug. 13, 2005).
Plaintiff asserts that Warden Dunbar's order “that the security unit provide the phone calls exclusively” was “in consensus with”
Morales and Matos (SAC ¶32) who approved dissemination of an erroneous pedigree sheet while being aware that Plaintiff was
not classified as an “ERS” (SAC ¶37). Plaintiff's conclusory allegations in these two paragraphs unsupported by factual content
are insufficient to state personal involvement by Morales and Matos.
Although Plaintiff alleges that Chief Scott also approved dissemination of an erroneous pedigree sheet despite being aware
that Plaintiff was not classified as an “ERS” (SAC ¶37) is conclusory, Plaintiff also alleges that, on December 17, 2020, Chief
Scott denied his grievance related to recreation, stating that “[t]here is no requirement for equipment,” citing to the SAC's
Exhibit 18 (SAC ¶71). Because Plaintiff made specific factual allegations against Chief Scott, supported by Exhibit 18, he stated
sufficiently Chief Scott's personal involvement in his claim of constitutional violation based on denial of recreation.
Accordingly, dismissing Plaintiff's claims against Stukes, Grossman, Jennings, Morales and Matos based on lack of personal
involvement is warranted. However, it is not warranted Chief Scott. 5
3. MINIMUM STANDARDS VIOLATIONS
*12 To start, when evaluating each of Plaintiff's claims concerning the CLO, they must be analyzed bearing in mind that
Plaintiff was subject to a court-issued Lockdown Order which precipitated the CLO. Thus, the penological purpose for the
restrictions in the CLO is presumptively valid, at least insofar as the CLO's requirements are consistent with the state court's
Lockdown Order. See Avery v. Turn Key Health Clinics, LLC, 2020 WL 714176, at *9 (W.D. Ark. Feb. 12, 2020), aff'd, 839
F. App'x 26 (8th Cir. 2021) (noting that “Security of the criminal justice process, enforcement of a court's orders, protection of
victims and witnesses are legitimate penological interests”); see also Hubbard v. Johnson, 2019 WL 5579507, at *4 (N.D. Cal.
Oct. 29, 2019); Pickford v. Lake Cnty. Cmty. Correction, 2015 WL 3822262, at *2 (N.D. Ind. June 19, 2015).
Defendants argue that to, the extent Plaintiff's claims are based on a violation of the BOC's Minimum Standards, no claim under
Section 1983 can lie insofar as the Minimum Standards do not set the Constitutional standard.
Although the Second Circuit does not appear to have ruled on the issue, District Courts in this Circuit consistently have found
that BOC's Minimum Standards do not, standing alone, establish a violation of a federally guaranteed right for purposes of
Section 1983. Knight v. Mun. Corp., 2016 WL 4030632, at *6 n.7 (S.D.N.Y. July 26, 2016); Winters v. City of New York, 2020
WL 4194633, at *5 (S.D.N.Y. July 21, 2020); Walker v. Shaw, 2010 WL 2541711, at *6 (S.D.N.Y. June 23, 2010) (collecting
cases). The rationale for these decisions is that the Minimum Standards, set by state law, are tantamount to procedural guidelines
for prisons that the state chooses to require and not necessarily those federal courts might also impose under the Fourteenth
Amendment. Korkala v. N.Y.C. Dep't of Corr., 84-cv-5740, 1986 WL 9798, at *4-5 (S.D.N.Y. Sept. 4, 1986). Thus, to the extent
they require more than what is required by the Constitution, they do not form the basis of a claim under Section 1983. To the
extent that the Minimum Standards align with Constitutional standards, those are addressed separately below when addressing
the Constitutional claims. Accordingly, as violation of the Minimum Standards in and of themselves do not establish the basis for
the deprivation of Constitutional right, I recommend that Plaintiff's claims for violation of the Minimum Standards be dismissed.
4. CONDITIONS OF CONFINEMENT
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a. Qualified Immunity
Defendants argue that none of the conditions of Plaintiff's confinement violates clearly established law and “where, as here,
correction officers act at the direction of a facially valid directive they are entitled to qualified immunity.” See Varrone v. Bilotti,
123 F.3d 75, 81-82 (2d. Cir. 1997). However, Defendants’ reliance on Varrone is misplaced. In Varrone, which involved a prison
visitor's Fourth Amendment right to be free from unreasonable searches and seizures, the court found:
Since the four subordinate officers were merely carrying out Malone's [(the Inspector General for the
New York State Department of Correctional Services)] instruction and that of their immediate superior
when they ordered the strip search, they were entitled to the same immunity Malone had. There is no
claim that the order was facially invalid or obviously illegal; prison strip searches are not uncommon.
To require the four officers independently to investigate the basis for the apparently valid order they
received, as a condition to having the same qualified immunity that the source of the order (Malone) had,
would create serious problems in the administration of a prison and be detrimental to the maintenance
of proper order and discipline there.
*13 Id.
Unlike in Varrone, which did not involve a claim that the order in that case was facially invalid, Plaintiff challenges the validity
of the CLO 370.20 and its restrictions. Defendants do not argue that Plaintiff does not have constitutional rights to basic life
necessities, including hygiene, exercise, communication with his attorney and outgoing mail; rather, they concede that Plaintiff
has those rights, but argue that sporadic deprivations of showers and razors (Def.’s Br. at 7-8), phone calls to his attorney (id. at
8-9), and recreation (id. at 9-10), as well as placing Plaintiff in enhanced restraints (id. at 12), are not sufficient to state a claim
for unconstitutional conditions of confinement. Defendants’ conclusory assertion in their memorandum of law that “the CLO”
is facially valid is not sufficient as a matter of law at this stage to confer qualified immunity protection in the circumstances
of this case regarding Plaintiff's claim of unconstitutional conditions of his confinement. Thus, dismissing the SAC based on
the argument that Defendants are entitled to qualified immunity because they acted at the direction of a facially valid directive
is not warranted.
b. Allegations Related to MDC
While he was housed at the MDC, Plaintiff chewed on a piece of glass in his meal, which caused bleeding and he also chewed
on a dead mouse. (SAC ¶¶ MD-1-2.) Defendants argue that Plaintiff's claims should be dismissed because his allegations do
not show any personal involvement by any officer placing the glass and mouse in his food, or that any officer had knowledge
of the glass and mouse in the food prior to plaintiff making it known to them, and they are entitled to qualified immunity.
(Def.’s Br. at 30.)
Here, Plaintiff does not identify any individual Defendant responsible for preparing or serving food or supervising food
preparation and service, and he does not allege any widespread and continuous contamination issues with food or that individual
Defendants were aware of these issues and allowed them to continue or were grossly negligent in supervising subordinates
and overseeing food preparation and service and failed to cure any food contamination issues. Since “personal involvement of
defendants in alleged constitutional deprivations is a prerequisite to an award of damages under § 1983,” Wright, 21 F.3d at 501,
and the SAC does not allege that any Defendant participated in or knew of contamination of the Plaintiff's food, the dismissal
of claims based on the allegations of contaminated food while Plaintiff was housed at MDC is warranted. See Gray v. Metro.
Det. Ctr., 2011 WL 2847430, at *10 (E.D.N.Y. July 15, 2011) (“Plaintiff does not allege that either of the Individual Defendants
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personally put glass in his food or had any reason to know that his food was contaminated when it was served.”); Lopes v.
Westchester County, 2020 WL 7029002, at *4 (S.D.N.Y. Nov. 30, 2020) (“There is no allegation that Martinez, Delgrosso, or
Spano participated directly in the preparation of food at all, established a policy or custom that allowed contaminated food to
be provided to inmates, failed to follow a policy or custom on food preparation or were otherwise grossly negligent in allowing
others to prepare food without following proper procedures, failed to remedy food preparation problems after being notified of
the issues, or were deliberately indifferent to Plaintiff's condition after being informed of his illness and its cause.”); but see Hall
v. Westchester County, 2021 WL 795165, at 4-5 (S.D.N.Y. Mar. 1, 2021) (Plaintiff adequately pleaded personal involvement and
serious conditions against supervisory individual defendants where they were responsible for food preparation and supervision
and participated in meetings to discuss complaints and lawsuits base on the food issues, and plaintiff was “regularly being
served undercooked and bloody meat, moldy bread, and juice containers with mold around them, all of which are obvious health
hazards,” he found “foreign objects, including a metal clip and flies, as well as phlegm in his food on several occasions,” his
“food was prepared in unsanitary conditions” and “old food was served.”). Thus, although the instances of food contamination
are indeed terrible and something that should not have happened, I recommend granting the motion to dismiss with respect to
Plaintiff's claims related to food contamination at MDC because they do not state a claim as pleaded under existing case law.
c. Showers, Razor, Recreation, Recreation, Television, Commissary, and Unsanitary Cell
*14 Defendants argue that: (a) there is no constitutional right to daily showers (Def.’ Br. at 7-8), access to television or
commissary (Id. at 10); (b) denial of a razor on certain days is a de minimis deprivation insufficient to state a claim (Id. at 7);
(c) Plaintiff does not allege he had contact with the sewage or that Defendants intentionally exposed to him to sewage (Id. at
8); and (d) sporadic deprivation of recreation does not amount to a constitutional violation, and there is no constitutional right
to exercise equipment (Id. at 9-10).
The Constitution requires that prison officials “provide humane conditions of confinement” and “ensure that inmates receive
adequate food, clothing, shelter, and medical care.” Farmer v. Brennan, 511 U.S. 825, 832 (1994). “The Constitution does not
mandate comfortable prisons, but neither does it permit inhumane ones[.]” Id. (internal quotation marks and citation omitted).
When a plaintiff is a pretrial detainee, as here, claims related to conditions of confinement are analyzed under the Due Process
Clause of the Fourteenth Amendment. When evaluating such a claim, courts look to “contemporary standards of decency.”
Darnell v. Pineiro, 849 F.3d 17, 29 (2d Cir. 2017).
To state a claim for deliberate indifference to conditions of confinement, a plaintiff must show that the deprivation was both
objectively serious and that the defendant official acted with sufficient mens rea, (the “subjective” prong of the test). Under the
subjective prong, the plaintiff must show that the defendant was deliberately indifferent to any objectively serious condition
of confinement. Id. at 32. Under the Fourteenth Amendment, this can be shown with evidence that the “defendant official
acted intentionally to impose the alleged condition, or recklessly failed to act with reasonable care to mitigate the risk that the
condition posed to the pretrial detainee even though the defendant-official knew, or should have known, that the condition posed
an excessive risk to health or safety.” Id. at 35.
Numerous courts have held that unpleasant or unsanitary conditions only rise to the level of a Constitutional violation if they
amount to an objectively and sufficiently serious denial of the minimal civilized measure of life's necessities. Id. at 30-32.
Furthermore, a plaintiff must proffer facts to show “an official's deliberate indifference to those conditions, or that that those
conditions are punitive.” Id. at 34 n.12.
“[C]onditions of confinement may be aggregated to rise to the level of a constitutional violation, but ‘only when they have a
mutually enforcing effect that produces the deprivation of a single, identifiable human need such as food, warmth, or exercise.’ ”
Id. at 30. To properly assess whether conditions are sufficiently serious, the plaintiff must include information about the duration
and severity of them, otherwise they may be dismissed. See, e.g., Figueroa v. County of Rockland, 2018 WL 3315735, at *7
(S.D.N.Y. July 5, 2018) (dismissing conditions-of-confinement claim alleging lack of ventilation, insect infestation, and feces/
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bodily fluids on the walls because plaintiff did not provide details as to duration of conditions); Jackson v. Sullivan County, 2018
WL 1582506, at *4 (S.D.N.Y. Mar. 27, 2018) (dismissing conditions-of-confinement claim in absence of allegations regarding
severity and duration).
Here, Plaintiff alleges that Defendants denied, on various dates, his requests for a shower (November 3, 4, 5, 7, 10 and 12),
razor (November 3, 4, 5, 6 and 7) and recreation (November 3, 4, 5 and 6, 2020 and May 16, 18, 19, 20, 22, 29, 30, June 1 and
2, 2021). These allegations do not rise to the level of a constitutional violation, either alone or in the aggregate, as they suggest
episodic deprivations. Although Plaintiff asserts that showers, razor, and recreation were denied on various dates, he concedes
that those services were otherwise afforded. 6 For example, on November 6, 2020, Plaintiff was denied shower by CO Ramirez,
but Plaintiff was offered a shower later that day. (SAC ¶¶ 21, 24.)
*15 Moreover, Plaintiff fails to assert how denials of a shower or razor on occasion posed an objective risk of serious harm
to him. See Trammell v. Keane, 338 F.3d 155, 165 (2d Cir. 2003) (“Deprivation of other [than toilet paper] toiletries for
approximately two weeks—while perhaps uncomfortable—does not pose such an obvious risk to an inmate's health or safety
to suggest that the defendants were ‘aware of facts from which the inference could be drawn that a substantial risk of serious
harm exist[ed], and [that they also drew] the inference.’ ”) (citation omitted); Thorpe v. Vill. of Greenwich, 2014 WL 788816,
at *10 (N.D.N.Y. Feb. 25, 2014) (“Courts are reluctant to consider even a temporary deprivation of showers a constitutional
violation.”); McCoy v. Goord, 255 F. Supp. 2d 233, 260 (S.D.N.Y. 2003) (“[A] two-week suspension of shower privileges does
not suffice as a denial of ‘basic hygienic needs,’ nor does failure to provide razors for shaving rise to the level of constitutional
concern.”) (citation omitted).
Plaintiff alleges that he was denied television in his cell and his access to the commissary was restricted. However, Plaintiff has
no constitutional right to television in his cell, Rosales v. LaValley, 2014 WL 991865, at *11 (N.D.N.Y. Mar. 13, 2014) (“It is
well established that prison inmates do not have a constitutional right to watch television because the amenity is not considered
a necessity for inmates.”), or access to the commissary, Wingate v. City of New York, 2014 WL 3747662, at *1 (E.D.N.Y. July
25, 2014) (“Prisoners, including pretrial detainees, do not have ... a constitutional right to the use of a prison commissary.”).
Furthermore, Plaintiff failed to assert any injury caused by denials of television in his cell and access to the commissary.
Plaintiff alleges that his request to clean cell #12 containing leftover trays, trash on the floor, fecal matter on the walls and sink,
and dried toothpaste and mucus in the sink was denied by Defendants. The Second Circuit has held that exposure to human
waste may satisfy the objective prong, depending on “both the duration and the severity of the exposure.” Willey v. Kirkpatrick,
801 F.3d 51, 68 (2d Cir. 2015). Thus, exposure to human waste, even for periods of short duration, may constitute an objectively
serious deprivation. Darnell, 849 F.3d at 30; see also Liverpool v. Davis, 442 F. Supp. 3d 714, 729 (S.D.N.Y. 2020). Plaintiff
alleges a single episode of exposure to unsanitary conditions, including fecal matter on the wall and in the sink and water from
the flooded toilet, on November 4, 2020, lasting less than 24 hours and he does not allege that exposure was of any particular
or significant severity. Although Plaintiff asserts that he was forced “to sit among the sewage and toilet water [that] flooded
[his] cell,” he does not allege that he suffered sickness or ill effects resulting from the exposure that was not of long duration
or severity. Thus, Plaintiff's single, short exposure to unsanitary conditions, on November 4, 2020, while no doubt extremely
unpleasant, does not qualify as objectively sufficiently serious to state a claim for constitutional violation under existing case law.
See Grant-Cobham v. Martinez, 2020 WL 2097807, at * 3 (E.D.N.Y. May 1, 2020) (dismissing claim alleging dirty conditions at
Rikers, including that other inmates threw feces at or near plaintiff because plaintiff failed to provide information about duration
of condition and whether fecal matter built up to such an extent that plaintiff's health was placed at risk).
Plaintiff's allegations concerning showers, razor, recreation, television in his cell, access to the commissary and unsanitary cell
do not state a claim that his constitutional rights were violated. Thus, I recommend granting the motion to dismiss with respect
to Plaintiff's claims based on the unsanitary cell and denials of showers, razor, recreation, television and commissary.
5. ACCESS TO THE COURTS AND COUNSEL
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a. Law Library Access
*16 An inmate's right to use a law library may be restricted if the restrictions employed are reasonably related to legitimate
penological interests—namely, security. Overton v. Bazzetta, 539 U.S. 126, 132 (2003); Thornburgh v. Abbott, 490 U.S. 401,
409, 413 (1989); Burroughs v. Petrone, 138 F. Supp. 3d 182, 210 (N.D.N.Y. 2015). Further, “prison law libraries and legal
assistance programs are not ends in themselves, but only the means for ensuring ‘a reasonably adequate opportunity to present
claimed violations of fundamental constitutional rights to the courts.’ ” Lewis v. Casey, 518 U.S. 343, 351 (1996) (quoting
Bounds v. Smith, 430 U.S. 817, 825 (1977)). To state a claim for denial of access to the courts, a plaintiff must allege facts
showing that the defendant's conduct “was deliberate and malicious, and that the “defendant's actions resulted in actual injury
to the plaintiff.” Banks v. County of Westchester, 168 F. Supp. 3d 682, 692 (S.D.N.Y. 2016) (quoting Bellezza v. Holland, 730 F.
Supp. 2d 311, 314 (S.D.N.Y. 2010)). To demonstrate actual injury, a plaintiff must allege: (1) a valid underlying cause of action
separate from the right-of-access claim; and (2) frustration or hindrance of the litigation caused by the defendant's actions. See
Christopher v. Harbury, 546 U.S. 403, 415 (2002).
Plaintiff asserts that he was denied access to the law library on certain days, and no legal kiosk and typewriter were available
to him upon request on several occasions. Defendants argue there is no constitutional right to electronic devices for research
and a typewriter. (Def.’s Br. at 20-21.)
“[P]rison inmates do not enjoy a constitutional right to typewriters as implements of access to the courts.” Taylor v. Coughlin,
29 F.3d 39, 40 (2d Cir. 1994). Plaintiff fails to allege how the denial of law library access on certain occasions, including the
lack of a legal kiosk and typewriter, hindered his efforts to pursue legal challenges in his criminal case, as he does not assert that
he missed any deadlines, was prevented from hand writing his letters and/or briefs, or that he was prevented from or delayed in
filing any legal document in his criminal case. See Gamble v. City of New York ex rel. NYC Dep't of Corr., 2009 WL 3097239,
at *6 (S.D.N.Y. Sept. 25, 2009) (“The Constitution ... ‘does not require unlimited and unrestricted access to a law library at the
demand of a prisoner’ ” and “prison officials may place reasonable restrictions on inmates’ use of facility law libraries as long
as those restrictions do not interfere with inmates’ access to the courts.”). Moreover, Plaintiff does not assert that Defendants’
occasional denial of law library access resulted in an actual injury, such as dismissal of a meritorious claim. Cancel v. Goord,
2001 WL 303713, at *4 (S.D.N.Y. Mar. 29, 2001) (“Plaintiff Cancel does not state a cognizable § 1983 claim for denial of access
to the courts because he has not alleged any actual injury resulting from Defendants’ actions.”); see also Means v. Rockland
Cnty. Corr. Facility, 2019 WL 1596489, at *7 (S.D.N.Y. Apr. 15, 2019) (finding that plaintiff's assertion that correction officials
denied him access to the courts by failing to provide him law books, paper, typewriter, and free telephone calls insufficient to
support a claim of denial of access to courts because plaintiff had access to materials to submit to the Court his handwritten
complaint); Fusco v. Westchester Cnty. Dep't of Corr., 2021 WL 1254215, at *4 (S.D.N.Y. Apr. 1, 2021). Thus, I recommend
that the motion to dismiss be granted with respect to Plaintiff's access to the courts claim based on denial of law library access.
b. Access To Counsel
A pretrial detainee's Sixth Amendment rights are violated when a prison regulation unjustifiably obstructs, infringes,
unreasonably burdens or significantly interferes with his access to counsel. Patterson v. Ponte, 2017 WL 1194489, at *3
(S.D.N.Y. Mar. 30, 2017), report and recommendation adopted, 2017 WL 1405753 (S.D.N.Y. Apr. 17, 2017) (citations omitted).
To the extent access is restricted based on an institutional rule, the court must evaluate the restriction in light of the goal of
institutional security. Bell v. Wolfish, 441 U.S. 520, 547 (1979); Kingsley v. Hendrickson, 576 U.S. 389, 398 (2015); Turner v.
Safley, 482 U.S. 78, 89 (1987). Courts also have recognized that prisoners do not have a right to unlimited telephone calls to
counsel and that day and time limitations may be imposed. See, e.g., Bellamy v. McMickens, 692 F. Supp. 205, 214 (S.D.N.Y.
1988); Pino v. Dalsheim, 558 F. Supp. 673, 675 (S.D.N.Y. 1983); Patterson, 2017 WL 1194489, at *3-4 (postponement of one
phone call and inability to speak with a paralegal on one occasion did not unreasonably burden right to counsel). “Correctional
officials may regulate contact with attorneys to a point” to, for example, keep staff, detainees and witnesses safe, and prevent
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escape. Benjamin v. Fraser, 264 F.3d 175, 185 (2d Cir. 2001). However, regulations must be reasonably necessary to address
these legitimate penological concerns. Id. “Further, states have no obligation to provide the best manner of access to counsel.
Rather, restrictions on inmates’ access to counsel via the telephone may be permitted as long as prisoners have some manner
of access to counsel.” Bellamy, 692 F. Supp. at 214.
*17 “[A] prisoner's right to the free flow of incoming and outgoing mail is protected by the First Amendment” and courts
“have consistently afforded greater protection to legal mail than to non-legal mail, as well as greater protection to outgoing mail
than to incoming mail.” Traore v. Rikers Island C-95 & C-76, 2022 WL 1556946, at *3 (S.D.N.Y. May 16, 2022) (citations
omitted). Under the First Amendment, “[r]estrictions on prisoners’ mail are justified only if they “further[ ] one or more of the
substantial governmental interests of security, order, and rehabilitation [and] must be no greater than is necessary or essential to
the protection of the particular governmental interest involved.” Davis, 320 F.3d at 351 (citation omitted). The Second Circuit
has held that prison officials can only open an inmate's outgoing legal mail if there is a “rational justification” for doing so.
Davidson v. Scully, 694 F.2d 50, 54 (2d Cir. 1982) (citing Wolfish, 573 F.2d at 130.).
While a prisoner has a right to be present when his legal mail is opened, an isolated incident of mail tampering is usually
insufficient to establish a Constitutional violation. Wolff v. McDonnell, 418 U.S. 539, 574–76 (1974). The Second Circuit has
found that “two incidents of mail tampering could constitute an actionable violation (1) if the incidents suggested an ongoing
practice of censorship unjustified by a substantial government interest, or (2) if the tampering unjustifiably chilled the prisoner's
right of access to the courts or impaired the legal representation received.” Id. “The inmate must show that prison officials
‘regularly and unjustifiably interfered with the incoming legal mail.’ ” Johnson v. Barone, 2022 WL 344272, at *3 (D. Conn.
Feb. 4, 2022) (quoting Davis, 320 F.3d at 351).
“The First Amendment protects prisoners’ access to mail directly, unlike the right of access to courts, which protects prisoners’
access to mail only derivatively and with respect to given claims.” Bellezza v. Holland, 2011 WL 2848141, at *6 (S.D.N.Y. July
12, 2011). “The right of access to courts gives rise to a number of derivative rights, including the right of inmates to receive
[and send] legal mail without interference.” Id. at *4. “To state a claim for denial of access to the courts—in this case due to
interference with legal mail—a plaintiff must allege that the defendant ‘took or was responsible for actions that hindered [a
plaintiff's] efforts to pursue a legal claim.’ ” Davis, 320 F.3d at 351 (internal quotation marks and citation omitted). “Unlike
prisoners who bring a claim for the violation of a constitutionally protected right, who have standing to assert that right even
if the denial of the right did not cause an ‘actual injury,’ prisoners who bring a claim for the violation of a derivative right of
access to the courts must demonstrate ‘actual injury’ in order to have standing.” Collins v. Goord, 581 F. Supp. 2d 563, 573
(S.D.N.Y. 2008) (citing Benjamin, 264 F.3d at 185).
Although Plaintiff alleges that his requests to call and send mail to his attorney were denied on several occasions, he does not
allege they were entirely denied or that he was prevented from communicating with his attorney in person during attorney visits.
See Dublino v. McCarthy, 2019 WL 2053829, at *14 (N.D.N.Y. May 9, 2019) (“Conversely, courts have found that denying
an inmate one method of communicating confidentially with his attorney does not give rise to a constitutional violation.”)
(collecting cases); see also O'dell’bey v. Semple, 2020 WL 127698, at *8 (D. Conn. Jan. 10, 2020). Thus, plaintiff failed to state
a claim for violation of his Sixth Amendment right to attorney based on denial of phone calls and mail to his attorney.
The Sixth Amendment right to counsel also includes the right to communicate with counsel in confidence. Weatherford v. Bursey,
429 U.S. 545, 554 n. 4 (1977) (“[T]he Sixth Amendment's assistance-of-counsel guarantee can be meaningfully implemented
only if a criminal defendant knows that his communications with his attorney are private and that his lawful preparations for trial
are secure against intrusion by the government, his adversary in the criminal proceeding.”); United States v. Rosner, 485 F.2d
1213, 1224 (2d Cir. 1973) (“[T]he essence of the Sixth Amendment right is, indeed, privacy of communication with counsel.”).
*18 On November 6, 2020, CO Hickson provided a phone call to Plaintiff's attorney, listened to Plaintiff's conversation with
his attorney, commented on Plaintiff's grievances to his attorney, stating that Warden Dunbar will retaliate against Plaintiff if
she finds out about them, and shared Plaintiff's grievances with McNeil. (SAC ¶ 24.) On November 16, CO McNeil opened
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and read Plaintiff's mail from his attorney to CO White, they discussed Plaintiff's criminal charges, and CO McNeil asked CO
White how much time he thinks Plaintiff would get. (SAC ¶ 44.) On November 17, Plaintiff gave his legal mail for his attorney
to ADW Carter, ADW Carter handed Plaintiff's outgoing mail to CO McNeil, who opened, read it, threw it away and started
loudly discussing details of the Plaintiff's legal situation and his communication to the attorney in his criminal case. (SAC ¶ 48.)
The CLO 370.20, consistent with the Plaintiff's JLO, provides that Plaintiff is not permitted to receive any mail without
inspection and his privileged mail to and from his attorney is not exempted. Defendants failed to articulate any legitimate
penological interest in monitoring Plaintiff's privileged, outgoing and incoming legal mail to and from his attorney. Since
Plaintiff challenges the CLO 370.20 restrictions and, to the extent that Plaintiff's privileged, outgoing and incoming legal mail
to and from his attorney was censored pursuant to the CLO 370.20, and that CO Hickson listened to Plaintiff's confidential
communication with his attorney, made threats of retaliation and shared Plaintiff's grievances with CO McNeil, who also read
and shared Plaintiff's grievances with CO White, at this stage of litigation Plaintiff's allegations against CO Hickson, CO McNeil,
CO White, and ADW Carter are sufficient to state a claim that his constitutional rights under the First and the Sixth Amendments
were violated. Thus, I recommend that the motion to dismiss the Plaintiff's claims against CO Hickson, CO McNeil, CO White,
and ADW Carter based on violation of his First and Sixth Amendment rights with respect to the privileged communication with
and mail from his attorney be denied. See Antrobus v. City of New York, 2014 WL 1285648, at *5 (S.D.N.Y. Mar. 27, 2014).
6. DUE PROCESS CLAIMS RELATED TO REQUIREMENT OF ENHANCED RESTRAINTS
Plaintiff claims that his procedural and substantive due process rights were violated by being designated a CMC case and placed
in enhanced restraints without a hearing, including when he was taken to shower, recreation, and medical examinations. The
CLO 370.20 required enhanced restraints when Plaintiff was outside of his cell. Plaintiff's complaints implicate his substantive
and procedural due process rights under the Fourteenth Amendment, addressed below.
a. Fourteenth Amendment Substantive Due Process
“In evaluating the constitutionality of conditions or restrictions of pretrial detention that implicate only the protection against
deprivation of liberty without due process of law,” the Supreme Court held that “the proper inquiry is whether those conditions
amount to punishment of the detainee.” Bell, 441 U.S. at 535. “[I]in determining whether particular restrictions and conditions
accompanying pretrial detention amount to punishment in the constitutional sense of that word,” courts “must decide whether
the disability is imposed for the purpose of punishment or whether it is but an incident of some other legitimate governmental
purpose.” Id. at 538. The Supreme Court explained that, “in the absence of an expressed intent to punish, a pretrial detainee can
nevertheless prevail by showing that the actions are not ‘rationally related to a legitimate nonpunitive governmental purpose’
or that the actions ‘appear excessive in relation to that purpose.’ ” Kingsley, 576 U.S. at 398 (quoting Bell, 441 U.S. at 541-43);
Edrei v. Maguire, 892 F.3d 525, 535 (2d Cir. 2018).
*19 In Hunter v. City of New York, the plaintiff challenged his placement in a segregated housing unit and being subjected
to additional restrictions including enhanced security restraints. 2015 WL 5697218, at *1 (S.D.N.Y. Sept. 28, 2015). The court
granted summary judgment finding that there was no evidence that any of the conditions, including the enhanced restraints, were
intended to punish him or imposed for any purpose other than the prison's legitimate goal of complying with a state court order
mandating that Plaintiff be prevented from making phone calls except to his attorney and prevented from writing or directing
others to write to the victim of Plaintiff's crime due to Plaintiff's prior harassing conduct toward the victim. Id. at *9-16; see
also Brown v. Doe, 2014 WL 5461815, at *7 (S.D.N.Y. Oct. 28, 2014) (pretrial detainee failed to state claim for substantive due
process violation when conditions of confinement were imposed to enforce a court order).
Because the implementation of the CLO implicates other Constitutional protections, namely the free exercise of religion access
to counsel, the analysis below focuses on Plaintiff's allegations related to being placed in enhanced restraints, which is assessed
under the Fourteenth Amendment as Plaintiff is a pretrial detainee. Here, the CLO imposed security restrictions on all inmates
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under court ordered lockdown status, including Plaintiff, and established policy and procedures for the care, custody, and control
of those inmates. (SAC Ex. 11.) The Lockdown Order was found necessary by the state court to achieve the purpose of preventing
Plaintiff from comminating with others. Other cases have found that orders similar to the CLO are generally applicable and not
issued to punish a particular detainee and are rationally related to a legitimate governmental objective of complying with the
mandates of orders similar to Plaintiff's Lockdown Order. See e.g., Hunter, 2015 WL 5697218.
However, to the extent the CLO's mandate is overbroad and inconsistent with the goal of the Lockdown Order, there may be
a valid due process claim. For example, it is unclear how placing Plaintiff in enhanced restraints during exercise/recreation or
receiving medical treatment is necessary to achieve the mandate of the State Court's Lockdown Order.
“Courts have recognized that some opportunity for exercise must be afforded to prisoners.” McCray v. Lee, 963 F.3d 110, 117
(2d Cir. 2020) (quoting Anderson v. Coughlin, 757 F.2d 33, 34–35 (2d Cir. 1985)). Here, Plaintiff alleges that on November 16,
2020, he was afforded recreation, but CO Dychese told Plaintiff he had to stay in enhanced restraints during the entire period
which deterred him from attending. 7 (SAC ¶ 43.) Plaintiff also alleges that on January 8, 2021 he was approached by Captain
Law regarding his recreation grievance, and Captain Law stated she was enforcing the restrictions in the CLO that Plaintiff had
to be in enhanced restraints. (SAC ¶ 76.) And, Plaintiff alleges he filed a grievance on November 18, 2020 regarding recreation
equipment and received a favorable outcome, but on December 8, 2020, Warden Rene nullified the grievance and stated that
Plaintiff was “only due the ‘direct air and sunlight’ provided by standing idle in a cage.” (SAC ¶ 70.)
Courts in this circuit, including the Second Circuit have noted that requiring enhanced restraints may deprive a prisoner a
meaningful opportunity to exercise and that such law is clearly established. See Edwards v. Quiros, 986 F.3d 187, 192 (2d Cir.
2021) (“we conclude that there was sufficient evidence for the jury to find that [the warden] had the requisite state of mind for
the entire six-month period during which Edwards was required to exercise in restraints when outside of his cell”); McCray,
963 F.3d at 120 (“In this Circuit the rights of prisoners to a meaningful opportunity for physical exercise had been clearly
established nearly three decades [ago]”); see also Brown v. Venettozi, 2021 WL 323264, at *6 (S.D.N.Y. Feb. 1, 2021). Thus,
given the facts noted above, Plaintiff has plausibly alleged a violation of his rights regarding the use of enhanced restraints
while exercising. See Paul v. LaValley, 712 F. App'x 78, 79 (2d Cir. 2018) (“Accordingly, we have agreed with other Circuits
that some opportunity for exercise must be afforded to prisoners, and we have held that this right was clearly established for
qualified immunity purposes by no later than 1985[.]”) (internal citations and quotation marks omitted). Defendants are not
entitled to qualified immunity on Plaintiff's meaningful exercise claim because there is clearly established law that placing an
inmate in enhanced restraints during exercises infringes on the right to meaningful exercise. See Edwards, 986 F.3d at 195 (“The
jury reasonably determined, upon sufficient evidence, that Quiros knowingly violated Edwards's clearly established right to
meaningful exercise under the circumstances and lacked a sufficient justification for doing so. We will not disturb the jury's
finding that Quiros was not entitled to qualified immunity.”).
*20 While Plaintiff's allegations that he was placed in enhanced restraints while receiving medical care raises a plausible claim
that the restraints were excessive for their purpose, Defendants are entitled to qualified immunity with regard to their use of
enhanced restraints in this circumstance because there is no clearly established law that an inmate under a Lockdown Order
may not be placed in restraints during while receiving medical care. See Lennon, 66 F.3d at 416.
Accordingly, I recommend that the motion to dismiss the substantive due process claim be denied as to requiring enhanced
restraints while exercising but otherwise granted.
b. Fourteenth Amendment Procedural Due Process
To the extent that Plaintiff asserts a liberty interest in not being classified as a CMC inmate, such a claim warrants dismissal
because no liberty interest exists in avoiding prison classification. See Pugliese v. Nelson, 617 F.2d 916, 925 (2d Cir. 1980)
(“[J]udicial intervention into the classification of prisoners for monitoring and control purposes would almost inevitably involve
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the federal courts in the day-to-day operations of our prison system, which are better left to the expertise of prison administration
authorities.”); see also Hunter, 2015 WL 5697218, at*12 (collecting cases).
However, this does not end the inquiry as to whether Plaintiff was entitled to some procedural due process before being
designated for placement in enhanced restraints. The level of procedural protection required differs according to the purpose
of the confinement. Benjamin, 264 F.3d at 190. If the restraint is imposed for disciplinary reasons, a prisoner must be provided
written notice, adequate time to prepare a defense, a limited ability to present witnesses and evidence, and a written statement
of the reasons for the discipline. Id. (citing Wolff, 418 U.S. at 561-70). If the restraint is for administrative purposes such as to
mitigate a security threat or to segregate pending a completion of a misconduct investigation, an inmate “must merely receive
some notice of the charges against him and an opportunity to present his views.” Id. (citing Hewitt v. Helms, 459 U.S. 460, 476
(1983)); see also Proctor v. LeClaire, 846 F.3d 597, 608 (2d Cir. 2017) (administrative segregation is permitted if necessary to
incapacitate a detainee who poses a security threat or to conduct and complete an investigation into misconduct).
Prison officials also must conduct periodic reviews to determine whether an individual remains a security risk warranting
the liberty restriction—a case-by-case factual assessment coupled with the prison conditions and tensions at the time. Parson
v. Miller, 2018 WL 4233810, at *5 (N.D.N.Y. May 25, 2018), report and recommendation adopted, 2018 WL 4228427
(N.D.N.Y. Sept. 5, 2018). Prison officials are accorded substantial deference in the adoption of policies and procedures to ensure
institutional security. Proctor, 846 F.3d at 610.
The purpose of the CLO is to comply with the State Court Lockdown Order, which is not disciplinary or purely administrative.
(SAC Ex. 11.) This Court was unable to identify any Supreme Court or Circuit case setting forth the procedure for assessing or
re-assessing restrictions imposed to implement a court order. A detainee could of course challenge a State Court order issued
in his underlying criminal case through his defense attorney and notify the prison if and when the State Court order is lifted,
at which time the prison presumably would cease subjecting the detainee to the internal prison procedures implemented solely
to enforce the State Court order. But, to the extent a prison order was issued to implement a Court Order, the prison order
presumably would remain in effect without review until the Court Order is lifted or modified. A prison could afford a hearing
in advance of subjecting a detainee to such an order so that the detainee could challenge its scope to the extent it exceeded
the dictates of the State Court order; however, the detainee could also go back to the state judge who issued the order to seek
clarification of the restrictions required. Again, this Court could find no cases on point.
*21 Since no clearly established law exists establishing that a pretrial detainee, such as Plaintiff, has a right to a hearing prior
to or after imposition of enhanced restraints implemented purportedly for purposes of implementing a court-issued Lockdown
Oder, the individual Defendants are entitled to qualified immunity on the Plaintiff's claim of violation of the procedural Due
Process Clause of the Fourteenth Amendment. See Wills v. Microgenics Corp., 2021 WL 3516419, at *5 (E.D.N.Y. Aug. 10,
2021) (finding defendants were entitled to qualified immunity because former inmate's due process claim was not clearly
established). Accordingly, dismissal of this claim is warranted.
7. MEDICAL CLAIMS AND PRIVACY
When evaluating a claim of deliberate indifference to medical needs by a pretrial detainee, the same basic two-prong test
described above applies. That is, the deprivation must be sufficiently serious, and the defendant must act with a sufficiently
culpable state of mind. Darnell, 849 F.3d at 29; Charles v. Orange County, 925 F.3d 73, 87 (2d Cir. 2019) (“Although Darnell
did not specifically address medical treatment, the same principle applies here.”). However, the inquiry is slightly different on
the first prong. The Court assesses (1) whether the detainee “was actually deprived of adequate medical care” and (2) whether
the inadequacy in medical care is sufficiently serious, which in turn “requires the court to examine how the offending conduct
is inadequate and what harm, if any, the inadequacy has caused or will likely cause the prisoner.” Salahuddin v. Goord, 467
F.3d 263, 279-80 (2d Cir. 2006).
The Second Circuit has set forth a non-exhaustive list of factors for courts to consider when undertaking the inquiry on the first
prong including “(1) whether a reasonable doctor or patient would perceive the medical need in question as important and worthy
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of comment or treatment, (2) whether the medical condition significantly affects daily activities, and (3) ‘the existence of chronic
and substantial pain.’ ” Brock v. Wright, 315 F.3d 158, 162 (2d Cir. 2003) (quoting Chance v. Armstrong, 143 F.3d 698, 702
(2d Cir. 1998)). To be sufficiently serious to pose a risk of damage to inmate's health, there must exist “a condition of urgency,
one that may produce death, degeneration, or extreme pain.” Hathaway v. Coughlin, 99 F.3d 550, 553 (2d Cir. 1996) (quoting
Hathaway v. Coughlin, 37 F.3d 63, 66 (2d Cir. 1994)). Further, “prison officials and medical officers have wide discretion in
treating prisoners, and Section 1983 is not designed to permit federal courts to interfere in the ordinary medical practices of
state prisons.” Sonds v. St. Barnabas Hosp. Corr. Health Servs., 151 F. Supp. 2d 303, 311 (S.D.N.Y. 2001) (citation omitted).
If there has been a total failure to provide treatment, the Court assesses whether the medical condition is sufficiently serious.
Davis v. McCready, 283 F. Supp. 3d 108, 120 (S.D.N.Y. 2017). But if some treatment has been provided, the court focuses on any
delay or interruption in treatment in assessing the seriousness of the deprivation, rather than the underlying medical condition
itself, and injuries attributable to the delay or interruption in treatment. Smith v. Carpenter, 316 F.3d 178, 185-86 (2d Cir. 2003).
When assessing the subjective, or mens rea prong, the court assesses whether “an objectively reasonable person in [d]efendant's
position would have known, or should have known, that [d]efendant's actions or omissions posed an excessive risk of harm”
to the plaintiff. Davis, 283 F. Supp. 3d at 120 (citing Darnell, 849 F.3d at 35). “[S]omething more than negligence is needed to
elevate a claim of medical misconduct to a constitutional tort.” Id. at 121 (citing Darnell, 849 F.3d at 36).
*22 A prisoner's right to privacy in his medical information is protected by the Fourteenth Amendment. Hancock v. County
of Rensselear, 882 F.3d 58, 65 (2d Cir. 2018). However, the right is not unqualified. Rush v. Artuz, 2004 WL 1770064, at *11
(S.D.N.Y. Aug. 6, 2004). “[T]he interest in the privacy of medical information will vary with the condition.” Powell v. Schriver,
175 F.3d 107, 111 (2d Cir. 1999). Thus, courts have recognized a right to privacy in an inmate's transsexualism and HIV positive
status because in the prison context these conditions may provoke hostility and intolerance from others. Id.
Courts within the Second Circuit have declined to recognize a claim for violation of medical privacy with regard to disclosure
of mental health disorders because such disclosure was not likely to expose an inmate to discrimination or intolerance. See,
e.g., Gibson v. Rosati, 2016 WL 11478234, at *5 (N.D.N.Y. May 19, 2016) (finding that the plaintiff's mental health history,
recent mental health diagnosis, and compliance with psychiatric medications did not constitute protected information); Ruple v.
Bausch, 2010 WL 3171783, at *4 (N.D.N.Y. July 21, 2010) (declining to extend Fourteenth Amendment protection where the
plaintiff suffered from depression and possible liver damage). Magistrate Judge Cott recently determined that bipolar disorder
is likely not such a condition demanding confidentiality under the Fourteenth Amendment. Dash v. Doe, 2020 WL 3057133, at
*3 (S.D.N.Y. June 9, 2020) (finding Magistrate Judge Cott's determination correct and adopting his Report).
Further, even if a medical condition is one demanding privacy under the Fourteenth Amendment, prison officials can impinge
that right if their actions are reasonably related to legitimate penological interests. Powell, 175 F.3d at 112; Dash, 2020 WL
3057133, at *3. The law is also clear that “gratuitous disclosure of an inmate's confidential medical information as humor or
gossip ... is not reasonably related to a legitimate penological interest, and it therefore violates the inmate's constitutional right
to privacy.” Id. at 112.
Plaintiff does not allege that providing mental health to him in his cell posed an unreasonable risk of serious injury to his
health or that the mental health provider acted intentionally or recklessly in failing to mitigate the risk posed by the condition.
Plaintiff's mental illness is not a condition similar to that of HIV or transsexuality where courts have recognized that disclosure
would impinge on the Fourteenth Amendment right of privacy. Plaintiff's allegations that he has a history of mental illness,
received mental health services in his cell and the mental health provider spoke loudly are insufficient to state a claim for
deliberate indifference to his health and violation of his medical information privacy. Thus, I recommend that the claims based
on providing mental health in Plaintiff's cell and lack of privacy of his mental health condition be dismissed.
Plaintiff also alleges that he suffered smoke inhalation on November 24, 2020, when he could not breathe and started vomiting,
but CO Lawrence and CO Oxley denied Plaintiff's request to call medical emergency. (SAC ¶ 62.) Additionally, on January 11,
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2021, Plaintiff became overwhelmed with smoke and soot and could not breathe, but ADW Louis instructed Captain Loiseau
not to let Plaintiff out of his cell because Plaintiff set the fire in his cell. (SAC ¶ 80). ADW Louis stated, “[l]et that motherfucker
choke and die; stupid-ass wanna set fires, huh?” (Id.) Captain Loiseau watched Plaintiff choke and gasp for air but eventually
let Plaintiff out and took him to the clinic for smoke inhalation. (Id.) A reasonable person would find that prolonged exposure
to smoke inhalation significantly affects an individual's breathing and, consequently, daily activities and has potential to inflict
substantial chest pain and potential death. See Gumora v. City of New York, 2018 WL 736018, at *5 (S.D.N.Y. Feb. 5, 2018)
(“Courts in this district have consistently held that conditions of confinement that expose inmates to unreasonable levels of
smoke satisfy the objective prong.”). Plaintiff was not allowed outside of his cell or provided medical assistance when he
suffered breathing difficulties and vomited on November 24, 2020, and, although he did not indicate how long he was exposed
to the smoke inhalation on January 11, 2021, he alleges that he was overwhelmed with smoke and soot, and he was choking
and gasping for air. Thus, Plaintiff's allegations are sufficient to plead that his medical needs related to smoke inhalation were
sufficiently serious. As for mens rea, Plaintiff sufficiently alleges that CO Lawrence and CO Oxley denied Plaintiff's request
to call medical emergency and ADW Louis instructed Captain Loiseau not to let Plaintiff out because he set the fire in his cell
and watched him choke and gasp for air, before letting him out.
*23 Allegations that the Defendants were aware of the smoke and Plaintiff's complaints that he was having trouble breathing,
coupled with CO Lawrence's and CO Oxley's denial of Plaintiff's request for medical assistance on November 24, 2020, and
ADW Louis instructing Captain Loiseau not to let Plaintiff outside of cell while watching him choke and gasp for air on January
11, 2021, give rise to a plausible inference that Defendants were deliberately indifferent to Plaintiff's medical needs on this
occasion. See Garcia v. Fischer, 2016 WL 297729, at *7 (S.D.N.Y. Jan. 22, 2016) (Where the smoke condition was apparent
at 2:00 a.m., but defendants failed to call the fire department until 3:17 a.m. or begin evacuating plaintiffs until 4:00 a.m., this
“could give rise to the inference that defendants knew plaintiffs were being exposed to unreasonably dangerous heavy smoke,
yet deliberately chose not to alleviate this for two or more hours.”).
Thus, I recommend denying the motion to dismiss with regard to Plaintiff's claims against CO Lawrence, CO Oxley, ADW
Louis, and Captain Loiseau for deliberate indifference to Plaintiff's medical needs in connection with smoke inhalation.
8. FIRST AMENDMENT RETALIATION
“[I]t is well established that ‘retaliation against a prisoner for pursuing a grievance violates the right to petition government
for the redress of grievances guaranteed by the First and Fourteenth Amendments and is actionable under § 1983.’ ” Dolan v.
Connolly, 794 F.3d 290, 294 (2d Cir. 2015) (quoting Graham v. Henderson, 89 F.3d 75, 80 (2d Cir. 1996)). A plaintiff asserting
First Amendment retaliation claims must allege “(1) that the speech or conduct at issue was protected, (2) that the defendant
took adverse action against the plaintiff, and (3) that there was a causal connection between the protected speech and the adverse
action.” Id. (quoting Espinal v. Goord, 558 F.3d 119, 129 (2d Cir. 2009)). The filing of a prison grievance is protected activity.
Id. To constitute an adverse action, the retaliatory conduct has to be of a nature that it would “deter a similarly situated individual
of ordinary firmness from exercising his or her constitutional rights[.]” Davis, 320 F.3d at 353 (quoting Dawes v. Walker, 239
F.3d 489, 491 (2d Cir. 2001)).
“[T]o satisfy the causation requirement, allegations must be sufficient to support the inference that the speech played a substantial
part in the adverse action.” Id. at 354 (cleaned up). When determining a causal connection, courts may infer a retaliatory motive
in the adverse action from: (1) “the temporal proximity of the filing to the grievance and the disciplinary action”; (2) “the
inmate's prior good disciplinary record”; (3) “vindication at a hearing on the matter”; and (4) “statements by the defendant
regarding his motive for disciplining the plaintiff.” Thomas v. DeCastro, 2019 WL 1428365, at *9 (S.D.N.Y. Mar. 29, 2019)
(quoting Barnes v. Harling, 368 F. Supp. 3d 573, 600 (W.D.N.Y. 2019)); see also Espina, 558 F.3d at 129.
Here, Defendants did not make a specific argument for dismissal of Plaintiff's First Amendment retaliation claim. Plaintiff
sufficiently alleges that that Warden Dunbar and ADW Henry grabbed him by his shirt and Warden Dunbar stated that if
Plaintiff continued to grieve about not receiving shower and pursue litigation, he would never shower, and directed CO Nzeama
to give Plaintiff reduced portions of food, which CO Nzeama did when Plaintiff's dinner arrived that day. (SAC ¶¶ 13-14.)
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Warden Dunbar also directed CO Ritter and CO Hickson not to allow Plaintiff any phone calls or outgoing mail, including to
his attorney, because he had been “lodging complaints and ratting on us” (SAC ¶ 41), and denial of his phone calls and mail
were accompanied on many occasions by Defendants’ statements that they were acting because Plaintiff complained about
Defendants by filing grievances. CO McNeil denied Plaintiff's request to call his attorney and informed him that the reason for
denial was Plaintiff's filing of complaints through his attorney. (SAC ¶ 66.) ADW Carter denied placing a television in Plaintiff's
cell because he continued to file complaints. (SAC ¶ 67.)
*24 ADW Carter and CO Ritter also propositioned Plaintiff to attack another inmate in exchange for their ensuring that he
would have all the required services (SAC ¶ 72), but when Plaintiff refused and requested to use the phone, CO Ritter denied the
request based on Plaintiff's denial of the proposition. (Id.) Thus, as alleged, the refusal to attack another inmate is adequate to
support a claim of retaliation as Plaintiff suffered adverse consequences. See Bryant v. Higbee, 2017 WL 4365988, at *16 (D.N.J.
Sept. 29, 2017) (finding that Plaintiff has adduced sufficient evidence, through his sworn testimony and additional evidence
in the record, for a reasonable fact-finder to conclude that he was retaliated against by refusing to assault another inmate at
defendant's behest); see also Lewis v. Hanson, 2022 WL 991729, at *26 (N.D.N.Y. Mar. 31, 2022) (“a retaliatory transfer to a
facility with more restrictions constitutes an adverse action sufficient to discourage other inmates form exercising their right”).
Plaintiff also alleges that when Captain Law received Plaintiff's recreation grievance, she stated that she “will personally see
to it that Plaintiff can't do anything outside, as far as engage in meaningful recreation” (SAC ¶ 76; SAC p. 423) and, when
Plaintiff attempted to submit a grievance to her, Captain Law stated that Plaintiff is “doing too much with that grievance system.
I'm getting E-Mails about putting a pull-up station in the rec area. I don't care about none of that,” and “[k]eep with that
grievance shit: we gon’ see about you.” (Id.) Additionally, CO McNeil denied Plaintiff the right to use the phone because he
filed complaints about his cell extraction. (SAC ¶ 66.) Moreover, ADW Carter harassed Plaintiff because of “the grievances
and complaints that my Attorney and myself have filed.” (SAC Exhibit 30, ECF No. 24-2, p. 24-25). As Plaintiff has a right
to file grievances, the threat of preventing him from engaging in meaningful recreation, which is arguably more meaningful
here because Plaintiff is already under a lockdown order, Plaintiff's allegations are sufficient to survive the instant motion. See
Davis, 320 F.3d at 352–53 (“the filing of prison grievances is a constitutionally protected activity”).
In sum, Plaintiff's allegations are sufficient, at this stage, to state a claim for the First Amendment retaliation against Warden
Dunbar, ADW Henry, CO Nzeama, CO Ritter, CO Hickson, CO McNeil, ADW Carter and Captain Law. Thus, I recommend
that the motion to dismiss the First Amendment retaliation claims against these Defendants be denied.
9. VIOLATIONS BASED ON RELIGION
Defendants did not make a specific argument for dismissal of Plaintiff's claims based on his religion. Plaintiff alleges that CO
Oxley denied Plaintiff's request to call the facility Imam. (SAC ¶ 60.) Plaintiff was approached by a Rabbi who asked if he
would like to speak about religion with a Chaplain instead of an Imam, but Plaintiff responded that there was no reason he would
speak with a Chaplain because he is a Muslim. (SAC ¶ 75.) Other inmates were receiving religious services while Plaintiff's
request for Imam was denied. (Id.) On April 12, 2021, when the holy month of Ramadan commenced, Plaintiff began to fast in
observance of the celebration, but he never received “a suhur 8 bag to break fast ... with Halal food” during the entire month of
Ramadan that lasted through May 12, despite requesting it and confirming that Plaintiff was enlisted as Muslim with the DOC
before the Ramadan started. (SAC ¶¶ 101-07.) When Plaintiff inquired with CO Young why his Quran, prayer rug and family
photographs that were removed from his cell on November 24, 2020 were not documented, CO Young stated that Plaintiff can
only have one Bible and “this is America! We don't like Muslims.” (SAC ¶ 58.)
*25 “The First Amendment, applicable to the States by reason of the Fourteenth Amendment,” Cruz v. Beto, 405 U.S. 319,
322 (1972), provides that “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise
thereof.” U.S. Const. amend. I. “Inmates clearly retain protections afforded by the First Amendment, including its directive that
no law shall prohibit the free exercise of religion.” O'Lone v. Est. of Shabazz, 482 U.S. 342, 348 (1987) (citations omitted).
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“[W]hen a prison regulation impinges on inmates’ constitutional rights, the regulation is valid if it is reasonably related to
legitimate penological interests.” Id. at 349 (citation omitted).
Courts consider the following factors in determining the reasonableness of a regulation or conduct burdening religious exercise:
(1) whether there is a “valid, rational connection between the prison regulation and the legitimate governmental interest put
forward to justify it;” (2) “whether there are alternative means of exercising the right that remain open to [the] prison inmate;” (3)
“the impact accommodation of the asserted constitutional right will have on guards and other inmates, and on the allocation of
prison resources generally;” and (4) “the absence of ready alternatives is evidence of the reasonableness of a prison regulation.”
Turner, 482 U.S. at 89-91. Assuming that the required burden on religious exercise under the Free Exercise Clause must be
substantial, the Second Circuit stated that “establishing a substantial burden is ‘not a particularly onerous task.’ ” Brandon v.
Kinter, 938 F.3d 21, 32 (2d Cir. 2019) (quoting McEachin v. McGuinnis, 357 F.3d 197, 202 (2d Cir. 2004)).
The Second Circuit also has noted that “courts have generally found that to deny prison inmates the provision of food that
satisfies the dictates of their faith does unconstitutionally burden their free exercise rights.” McEachin, 357 F.3d at 203.
Nonetheless, “incidents that are isolated, or few in number, involving a denial of religiously-mandated food, do not give rise
to a First Amendment claim.” Maldonado v. Westchester County, 2021 WL 356155, at *5 (S.D.N.Y. Feb. 2, 2021) (quoting
Washington v. Afify, 968 F. Supp. 2d 532, 538 (W.D.N.Y. 2013) (collecting cases)). Similarly, a prison must permit a “reasonable
opportunity for an inmate to engage in religious activities but need not provide unlimited opportunities.” Van Wyhe v. Reisch,
581 F.3d 639, 657 (8th Cir. 2009); see also Czekalski v. Hanks, 2020 WL 7231358, at *22 (DNH Dec. 8, 2020).
Plaintiff's allegations give rise to a plausible claim of a violation of his free exercise rights under the First Amendment with regard
to denial of his request for an Imam, the Rabbi's offer that Plaintiff speak with a Chaplain instead of Imam, and Defendants’
failure to provide Plaintiff suhur during the entire month of the Ramadan, from April 12 to May 12, 2021, despite Plaintiff's
requests and Defendants’ confirmation that Plaintiff was registered as Muslim with the DOC beforehand (SAC ¶¶ 101-07),
coupled with the removal of Plaintiff's Quran and prayer rug from his cell without documentation because, as CO Young stated,
Plaintiff can only have one Bible and “this is America! We don't like Muslims.” (SAC ¶ 58.)
In addition to the First Amendment Free Exercise violations, the Court interprets Plaintiff's allegations based on religion also to
assert violations of Plaintiff's rights under the Religious Land Use and Institutionalized Persons Act of 2000, 42 U.S.C. § 2000cc
et seq. (“RLUIPA”). RLUIPA “protects institutionalized persons who are unable freely to attend to their religious needs and are
therefore dependent on the government's permission and accommodation for exercise of their religion.” Cutter v. Wilkinson, 544
U.S. 709, 721 (2005). RLUIPA ensures “greater protection for religious exercise than is available under the First Amendment.”
Ramirez v. Collier, 142 S. Ct. 1264, 1277 (2022) (citation omitted). Defendants do not advance any argument for dismissal of
Plaintiff's RILUPA claims. Accordingly, Plaintiff's RLUIPA claims remain in the action. The Court also construes the SAC
as stating a claim for denial of equal protection under the Fourteenth Amendment insofar as it asserts the CLO provided for
Bibles to be given to detainees to the exclusion of Quran. Defendants have not moved to dismiss this claim, so it too remains
in the action.
*26 To the extent Defendants argue that they are entitled to qualified immunity because they relied on the CLO, it is not
warranted as caselaw suggests burdening religious exercise without justification violates the law. See Sabir v. Williams, 37
F.4th 810, 823-24 (2d. Cir. 2022) (holding that the wardens were not entitled to dismissal of the SAC based on qualified
immunity because case law and the text of a similar statute clearly established substantially burdening religious exercise without
justification violated the law). Further, Plaintiff pleads plausibly and sufficiently the Defendants were aware of his religious
identity and that he was classified as Muslim before the start of Ramadan. Accordingly, Defendants are not entitled to qualified
immunity as to this cause of action.
10. EXCESSIVE USE OF FORCE
To establish a claim of excessive force, a pretrial detainee “must show only that the force purposely or knowingly used against
him was “objectively unreasonable” given the facts and circumstances at the time. Kingsley, 576 U.S. 389, 396-97, 403; Edrei,
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892 F.3d at 534. Courts consider a number of factors when determining objective reasonableness, including: the relationship
between the need for the use of force and the amount of force used; the extent of the plaintiff's injury; any effort made by the
officer to temper or to limit the amount of force; the severity of the security problem at issue; the threat reasonably perceived
by the officer; and whether the plaintiff was actively resisting. Edrei, 892 F.3d at 534; see also Barnes v. Harling, 368 F. Supp.
3d 573, 592 (W.D.N.Y. 2019) (discussing factors).
Here, Plaintiff alleges that Defendants used excessive force: (1) on November 16, 2020, when Captain Palmer-Campbell
handcuffed Plaintiff inside his cell, and ADW Carter refused to remove handcuffs until the following morning at 11:30 a.m.,
causing Plaintiff's hands to become numb after several hours (SAC ¶¶ 46-47); (2) during Plaintiff's November 24, 2020 removal
from his cell by Captain Blake, “Humphries #13844,” CO Castro, CO Likoua, “Smith #1753,” “Vasquez # 11590” and “Williams
# 3906” when he sustained bruises, lacerations, and subsequent scaring to his left forearm (SAC ¶¶ 53-57); (3) on January 11,
2021, when Plaintiff refused to return to his cell, “climbed atop a ledge that was twenty feet above ground level,” and upon
Captain Arias’ order that Plaintiff be pulled down, “CO Smith #1650” jumped and grabbed Plaintiff, causing him to fall to
the ground and sustain “a deep, vertical scrape down plaintiffs back” (SAC ¶¶ 82-83); and (4) during the January 13, 2021
search of Plaintiff's cell when CO Reid removed Plaintiff's sneakers and another officer “put their knees atop plaintiff's neck,
obstructing plaintiff's breathing” (SAC ¶ 86).
Although “[d]e minimis injuries from handcuffing such as numbness or inflammation are insufficient to sustain an excessive
force claim,” McGarrell v. Arias, 2019 WL 2528370, at *4 (S.D.N.Y. Mar. 1, 2019), report and recommendation adopted, 2019
WL 1254880 (S.D.N.Y. Mar. 19, 2019), the duration of time during which Plaintiff suffered hands numbness when he was
left in the handcuffs overnight and refusal to alleviate the injury without any apparent reason, are additional factors making
plausible Plaintiff's claim of excessive force related to handcuffing in his cell on November 16 and 17, 2020. Similarly, Plaintiff
sustained injuries that are not insignificant during the November 24, 2020 removal from his cell, his fall form the ledge on
January 11, 2021, and the January 13, 2021 search of his cell. While ultimately Plaintiff may not prevail on his claims of
excessive force, at this stage of litigation, Plaintiff's allegations are plausible and sufficient to state a claim for excessive use
of force against Captain Palmer-Campbell, ADW Carter, Captain Blake, “Humphries #13844,” CO Castro, CO Likoua, “Smith
#1753,” “Vasquez # 11590,” “Williams #3906,” Captain Arias, “CO Smith #1650,” and CO Reid.
11. STOLEN PROPERTY
*27 Defendants did not address Plaintiff’ claims concerning stolen property. Plaintiff asserts that: (1) on November 16,
2020, CO McNeil took his clothing package received by the facility (SAC ¶ 45); (2) Plaintiff's Quran, prayer rug and family
photographs removed during the November 24 were confiscated and not returned (SAC ¶ 58); and (3) Plaintiff's the January
13, 2021 shirt sweatpants and a pair of sneakers were confiscated during the January 13, 2021 search and never returned, as
ADW Carter and CO Ritter promised (SAC ¶ 100). A claim for deprivation of property is not recognized in federal court if the
state courts provide a remedy for the deprivation of that property. See Hudson v. Palmer, 468 U.S. 517, 533 (1984); Marino v.
Ameruso, 837 F.2d 45, 47 (2d Cir. 1988) (citations omitted). “[T]he availability of an action in the Court of Claims provides
[an] adequate post-deprivation remedy for prisoners who claim deprivation of personal property by prison officials.” Jones v.
Harris, 665 F. Supp. 2d 384, 401 (S.D.N.Y. 2009) (describing procedure available to state prisoners). Thus, “even the intentional
destruction of an inmate's property by a prison officer does not violate the Due Process Clause if the state provides that inmate
with an adequate post-deprivation remedy.” Little v. Mun. Corp., 51 F. Supp. 3d 473, 499 (S.D.N.Y. 2014) (New York state law
provides pretrial detainees with an adequate post-deprivation remedy, that is, Section 9 of the Court of Claims Act); see also
Bazelais v. Rikers Island Corr. Ctr. (D.O.C.), 2022 WL 2805590, at *3 (S.D.N.Y. July 18, 2022).
Plaintiff does not allege that New York does not provide an adequate post-deprivation remedy for his claim that Defendants
stole his property or that there is a systemic failure in Defendants’ procedures governing confiscation and return of inmate
property. See Butler v. Castro, 896 F.2d 698, 700 (2d Cir. 1990) (“[T]he existence of independent state relief does not defeat a
Section 1983 claim where the deprivation complained of results from the operation of established state procedures.”). Thus, I
recommend that Plaintiff's claims concerning stolen property be dismissed for failure to state a claim.
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12. MUNICIPAL LIABILITY
A municipality cannot be held liable under Section 1983 under a respondeat superior theory. City of Canton v. Harris, 489
U.S. 378, 392 (1989). Rather, it can be liable only if the Constitutional violations are caused by execution of a government
policy or custom, “whether made by its lawmakers or by those whose edicts or acts may fairly be said to represent official
policy.” Monell v. Dep't of Soc. Servs., 436 U.S. 658, 691, 694 (1978). “Official municipal policy includes the decisions of a
government's lawmakers, the acts of its policymaking officials, and practices so persistent and widespread as to practically have
the force of law.” Connick v. Thompson, 563 U.S. 51, 61 (2011). A plaintiff may demonstrate that such a policy or custom exists
by introducing evidence of one of the following:
(1) a formal policy officially endorsed by the municipality; (2) actions taken by government officials
responsible for establishing the municipal policies that caused the particular deprivation in question; (3)
a practice so consistent and widespread that, although not expressly authorized, constitutes a custom or
usage of which a supervising policy-maker must have been aware; or (4) a failure by policymakers to
provide adequate training or supervision to subordinates to such an extent that it amounts to deliberate
indifference to the rights of those who come into contact with the municipal employees.
Jones v. Westchester County, 182 F.Supp.3d 134, 158 (S.D.N.Y. 2016) (quoting Brandon v. City of New York, 705 F.Supp.2d
261, 276–77 (S.D.N.Y. 2010)). To prevail on a Monell claim, a plaintiff must also show that “there is a direct causal link between
[the] municipal policy or custom and the alleged constitutional deprivation” he suffered. City of Canton, 489 U.S. at 385. “When
a municipality chooses a course of action tailored to a particular situation, this may also represent an act of official government
policy as that term is commonly understood.” Montero v. City of Yonkers, New York, 890 F.3d 386, 403 (2d Cir. 2018) (citing
Amnesty Am. v. Town of W. Hartford, 361 F.3d 113, 125 (2d Cir. 2004)) (internal quotation marks omitted).
*28 When alleging an affirmative municipal policy, “a plaintiff must make factual allegations that support a plausible
inference that the constitutional violation took place pursuant either to a formal course of action officially promulgated by the
municipality's governing authority or the act of a person with policymaking authority for the municipality.” Missel v. County of
Monroe, 351 F. App'x 543, 545 (2d Cir. 2009). The action of a single decisionmaker who has final authority may be sufficient
to support Monell liability. Montero, 890 F.3d at 403. To determine whether an official has final decisionmaking authority, the
official need not be a policymaker for all purposes, rather, “with respect to the conduct challenged, he must be responsible under
state law for making policy in that area of the municipality's business.” Graham v. City of New York, 2009 WL 909620, at *2
(E.D.N.Y. Mar. 31, 2009) (quoting Jeffes v. Barnes, 208 F.3d 49, 57 (2d Cir. 2000) (internal quotation marks and alterations
omitted)). Courts have noted that it is often unclear whether wardens may be policymaker to support a Monell claim. See Id.
(denying summary judgment and noting it is unclear whether Warden Curcio is a policymaker under state law); Pembaur v.
City of Cincinnati, 475 U.S. 469, 483 n.12 (1986) (plurality opinion) (noting in dicta that a county sheriff, for example, may
serve as an official policymaker for municipal-liability purposes with respect to some actions but not others); Elliott v. Mgmt. &
Training Corp., 2017 WL 3089693, at *7 (N.D. Miss. July 19, 2017) (accepting on summary judgment that the warden may be
an official policymaker); Sugamosto v. Emerald Corr. Mgmt., LLC, 2013 WL 12333651, at *3 (D.N.M. Feb. 13, 2013) (denying
motion to dismiss because plaintiff sufficiently alleged that the warden possessed the authority to craft official prison policy
requiring that plaintiff be shackled).
At this stage of the litigation, it is premature to definitively determine whether Warden Dunbar and Warden Rene a final
decisionmaker to support municipal liability, thus dismissal is unwarranted. Here, Plaintiff alleges and provides documentation
that Warden Dunbar drafted and enforced the CLO, a course of action supposedly tailored to the Lockdown Order to which
Plaintiff was subject. (See SAC p. 423; SAC Ex. 11.) The CLO explicitly mentions that the inmates to which it applied may
have a Bible, but does not mention other religious texts. (SAC Ex. 11.) The CLO, as written, may be violative of Plaintiff's
Fourteenth Amendment rights to equal protection insofar as it provides greater protection to inmates requesting Bibles and not
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other religious texts such as Qurans and the Lockdown Order says nothing about limiting access to books. Further, Plaintiff
alleges that he was told that he was not permitted to have a Quran because the CLO only permitted him to have a Bible. (See SAC
¶ 58.) Plaintiff also alleges that he was offered the opportunity to meet with a rabbi or chaplain who was visiting other similarly
situated inmates but was not provided the opportunity to meet with an Imam. (SAC ¶ 75.) Thus, it is plausible that the CLO, the
policy in question, was overbroad and caused the constitutional deprivation of not being provided a Quran or access to an Imam
while allowing others a Bible and a religious leader. Similarly, the Lockdown Order did not specifically mandate enhanced
restraints during exercise. Plaintiff alleges to have filed a grievance on November 18, 2020 regarding recreation and was told
by Warden Rene that he was only entitled to direct air and sunlight. (SAC ¶ 70.) Insofar as the Second Circuit has indicated that
enhanced restraints during recreation time may unconstitutionally burden a detainees's right to engage in meaningful exercise,
the CLO was overbroad. Thus, a plausible Monell claim is stated as to this aspect of the CLO as well.
The same is not true for Plaintiff's claim that his Fourteenth Amendment rights were violated when he was placed in enhanced
restraints during medical treatment under a deliberate indifference theory. The individual Defendants are alleged to have
construed the CLO as mandating enhanced restraints in this circumstance, even though the CLO does not expressly state this
(in contrast to mandating enhanced restraints for exercise). Thus, it is unclear whether the CLO was intended to cover this
circumstance. The applicable Monell theory here would be that the Warden was deliberately indifferent to the manner in which
individual officers were implementing the CLO. “To establish deliberate indifference a plaintiff must show that a policymaking
official was aware of constitutional injury, or the risk of constitutional injury, but failed to take appropriate action to prevent or
sanction violations of constitutional rights.” Jones v. Town of East Haven, 691 F.3d 72, 81 (2d Cir. 2012). Here, Plaintiff does
not allege that any policymaker (i.e., Warden Dunbar) was actually aware that subordinates were enforcing the CLO to require
enhanced restraints while receiving medical treatment. He only alleges that ADW Phillips placed him in enhanced restraints in
medical, which he protested as not being on enhanced restraint status. (See SAC ¶ 87.) Personal knowledge cannot be imputed to
Warden Dunbar because the CLO does not explicitly state that prisoners should be handcuffed when receiving medical attention
or consulting their attorneys. Thus, Plaintiff has not plausibly alleged that Dunbar was deliberately indifferent and failed to
take appropriate corrective action. The same cannot be said for Plaintiff's claim concerning his right to exercise because the
CLO clearly states “inmates will be restrained in waist chains[,] handcuffs[,] and mitts whenever they are out of their cells for
recreation.” (SAC Ex. 11.) In other words, Dunbar wrote the CLO with that restriction and had knowledge of it notwithstanding
applicable case law stating that such restraints constitute an infringement of the right to meaningfully exercise.
*29 Accordingly, I recommend denying Defendants’ motion to dismiss Plaintiff's municipal liability claim with respect to the
equal protection claims relating to the provision of religious texts and being placed in enhanced restraints when exercising. To
the extent Plaintiff is raising other municipal liability claims, I recommend that those claims be dismissed.
13. NEGLIGENT TRAINING AND SUPERVISION
In addition to Constitutional claims, Plaintiff asserts state law negligent hiring, retention, training, and supervision claims.
To state a claim for negligent hiring, retention, training and supervision, a plaintiff must first demonstrate an employee was
negligent. Mena v. City of New York, 2019 WL 1900334, at *5-6 (S.D.N.Y. Apr. 29, 2019). Once this is established, a plaintiff
must allege:
(1) that the tort-feasor and the defendant were in an employee-employer relationship; (2) that the
employer knew or should have known of the employee's propensity for the conduct which caused the
injury prior to the injury's occurrence; and (3) that the tort was committed on the employer's premises
or with the employer's chattels.
Ehrens v. Lutheran Church, 385 F.3d 232, 235 (2d Cir. 2004) (cleaned up). In addition, “a claim for negligent training or
supervision can only proceed against an employer for an employee acting outside the scope of her employment.” Id.; Mena,
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2019 WL 1900334, *at 6 (collecting cases); Barnville v. Mimosa Café, 2014 WL 3582878, at *2 (S.D.N.Y. July 10, 2014);
De'Bey v. City of New York, 2022 WL 909790, at*8 (S.D.N.Y. Mar. 29, 2022).
Here, Plaintiff does not allege that Defendants acted outside the scope of their employment; rather, he alleges that Defendants
stated to him repeatedly that their actions were based on the CLO 370.20 and the restrictions contained therein. Given that
Plaintiff does not allege that Defendants acted outside of the scope of their employment, no basis exists for his training and
supervision claims under New York law. Hence, I recommend that these claims be dismissed.
14. OPPORTUNITY TO AMEND
Plaintiff has had two opportunities to amend his pleadings. Nothing in the SAC suggests that Plaintiff possesses additional facts
that would cure the deficiencies described in this Report and Recommendation. Therefore, I recommend that at this juncture
the deficient claims be dismissed with prejudice. See, e.g., Palompelli v. Smith, 2022 WL 624421, at *6 (S.D.N.Y. Mar. 3,
2022) (dismissing pro se plaintiff's complaint with prejudice when there was no suggestion that plaintiff possessed facts that
would cure deficiencies in previous complaints) (collecting cases); Dash v. Mayers, 2020 WL 1946303, at *9 (S.D.N.Y. Apr. 23,
2020) (dismissing complaint with prejudice when plaintiff already had one opportunity to amend complaint and court liberally
construed opposition in a way that effectively amounted to another pleading).
CONCLUSION
For the foregoing reasons, I recommend GRANTING the motion to dismiss (ECF No. 35, 69) as to all claims except as to: (1)
the claims concerning Plaintiff's treatment at OBCC and VCBC; (2) the claims against CO Hickson, CO McNeil, CO White and
ADW Carter based on violation of Plaintiff's First and Sixth Amendment rights with respect to the privileged communication
with and mail from his attorney; (2) the claims against CO Lawrence, CO Oxley, ADW Louis, and Captain Loiseau for deliberate
indifference to Plaintiff's medical needs in connection with smoke inhalation; (3) the claims against Warden Dunbar, ADW
Henry, CO Nzeama, CO Ritter, CO Hickson, CO McNeil, ADW Carter and Captain Law for the First Amendment retaliation;
(4) the Fourteenth Amendment Due Process conditions of confinement in connection with being placed in enhanced restraints
during exercise against Warden Rene, Captain Law, and CO Dychese; (5) the claims against all Defendants for violations of
Plaintiff's First Amendment Free Exercise rights, RLUIPA and denial of equal protection under the Fourteenth Amendment
insofar as it asserts the CLO provided for Bibles to be given to detainees to the exclusion of Quran and confiscated his prayer rug;
(6) the claims for excessive use of force against Captain Palmer-Campbell, ADW Carter, Captain Blake, “Humphries #13844,”
CO Castro, CO Likoua, “Smith #1753,” “Vasquez # 11590,” “Williams #3906,” Captain Arias, “CO Smith #1650,” and CO Rei;
and (7) the municipal liability claim as to Defendants City of New York, Dunbar, and Rene with regard to the policy restriction
on provision of religious texts other than Bibles and being placed in enhanced restraints during recreation.
NOTICE
*30 Plaintiff shall have seventeen days, and Defendants shall have fourteen days, from service of this Report and
Recommendation to file written objections pursuant to 28 U.S.C. § 636(b)(1) and Rule 72(b) of the Federal Rules of Civil
Procedure. See also Fed. R. Civ. P. 6(a), (d) (adding three additional days only when service is made under Fed. R. Civ.
P. 5(b)(2)(C) (mail), (D) (leaving with the clerk), or (F) (other means consented to by the parties)). A party may respond
to another party's objections after being served with a copy. Fed. R. Civ. P. 72(b)(2).
Plaintiff shall have seventeen days to serve and file any response. Defendants shall have fourteen days to serve and
file any response. Any objections and any responses to such objections shall be filed with the Clerk of the Court, with
courtesy copies delivered to the chambers of the Honorable Paul G. Gardephe at the United States Courthouse, 40 Foley
Square, New York, New York 10007, and served on the other parties. See 28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 6(a), 6(d),
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72(b). Any requests for an extension of time for filing objections must be addressed to Judge Gardephe. The failure to
file timely objections shall result in a waiver of those objections for purposes of appeal. See 28 U.S.C. § 636(b)(1); Fed.
R. Civ. P. 6(a), 6(d), 72(b); Thomas v. Arn, 474 U.S. 140 (1985).
All Citations
Not Reported in Fed. Supp., 2022 WL 4705949
Footnotes
1 Plaintiff twice amended his complaint. All citations herein refer to the Second Amended Complaint, which is the
operative complaint. (ECF No. 24.)
2 Defendants who joined the motion to dismiss include: Captain Roselio Arias, Shield No. 1861; Captain Mark Ballah,
Shield No. 1219; Captain Andrei Blake, Shield No. 89; Captain Aracelis Camacho, Shield No. 1790; Assistant Deputy
Warden (“ADW”) Tyrone Carter, Shield No. 94; Correction Officer (“CO”) Giovanni Castro, Shield No. 11930; CO
Senayea Chuck, Shield No. 9192; CO Deonne Darbeau, Shield No. 4193; CO Joseph Day, Shield No. 5761; CO
Steven Dejesus, Shield No. 497; CO Kewanee Drumwright, Shield No. 8667; Former CO Tyliek Dyches; Former CO
Timothy Edmund; Captain Lashauna Farrow, Shield No. 964; CO Manuel Feliz, Shield No. 17854; ADW Ebonee
Flemming, Shield No. 1075; Former DOC General Counsel Heidi Grossman; Former CO Robinson Guzman; ADW
Shanele Henry, Shield No. 1038; CO Andrew Hickson, Shield No. 5395; CO William Humphries, Shield No. 13844;
CO Joatan Humphries, Shield No. 4883; Chief Hazel Jennings, Shield No. 22; Captain Erica Law, Shield No. 85; CO
Julius Lawrence, Shield No. 10351; CO Gboh Likoua, Shield No. 19071; Captain Charles Loiseau, Shield No. 1898;
ADW Jean Louis, Shield No. 1011; Captain Bernard Mathis, Shield No. 82; Deputy Warden Joanne Matos, Shield No.
595; CO Willie McNeil, Shield No. 12557; Former CO Jennifer Montenegro; Captain Paul Moodie, Shield No. 593;
Deputy Warden Tiffany Morales, Shield No. 4; CO Victor Nzeama, Shield No. 6774; CO Cassandra Oxley, Shield No.
1711; Captain Debbie Palmer, Shield No. 267; CO Chance Peay, Shield No. 18910; Captain Jonathan Peters, Shield No.
423; ADW Denise Phillips, Shield No. 14; CO Rick Purnhagen, Shield No. 12594; CO Yvonne Quinones, Shield No.
2315; CO Johanny Ramirez, Shield No. 15685; CO Rekiel Reid, Shield No. 8637; Warden Jean Rene, Shield No. 627;
CO Preston Ritter, Shield No. 7994; CO Wilson Rodriguez, Shield No. 9665; Chief of Operations Becky Scott, Shield
No. 25; CO Robin Sharma, Shield No. 13535; Deputy Warden Jonelle Shivraj, Shield No. 604; Captain Paul Smith,
Shield No. 1222; CO Jaheem Smith, Shield No. 1650; Former CO Jon Smith; Chief Kenneth Stukes, Shield No. 19;
Captain Octavio Subervi, Shield No. 1064; CO Shanell Taylor, Shield No. 8644; Captain Fanny Vallejo, Shield No. 924;
CO Jovan Vasquez, Shield No. 11590; CO Lakeisha White, Shield No. 492; CO Kevin White, Shield No. 8507; Former
CO Loretta Williams; and CO Kevin Young, Shield No. 12268.
3 The Court notes that the instant motion is unopposed as Plaintiff has not filed an opposition as ordered. See ECF Nos.
45, 72.
4 Although Defendants seek to dismiss the entire SAC pursuant to Fed. R. Civ. P. 12(b)(6), they did not address in their
motion to dismiss Plaintiff's allegations concerning his treatment at the OBCC and VCBC; thus, dismissal of Plaintiff's
claims based on the allegations concerning his treatment at OBCC and VCBC, including his allegations that Defendants
have an illegal “custom policy” of housing detainees based on their “SRG” status instead of their actual classification
score, which creates “gang houses or ‘SRG CRIBS,’ ” is not warranted.
5 Although Plaintiff sufficiently alleges the personal involvement of Chief Scott, as discussed below, I nonetheless
recommend that she be dismissed as Plaintiff's recreational equipment claim does not rise to a constitutional violation.
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6 Plaintiff also alleges that he was placed in enhanced restraints during recreation. That claim is addressed below.
7 Plaintiff also alleges that on November 8, 2020 he was told by officers that he would have to remain in enhanced
restraints. (SAC ¶ 29.) However, Plaintiff fails to allege the personal involvement of a specific officer to support his
claim on this occasion.
8 “Sahur is the light pre-dawn meal eaten by Muslims during Ramadan.” Shakur v. Thomas, 2016 WL 11478237, at *3
(N.D.N.Y. June 2, 2016), report and recommendation adopted, 2016 WL 4617242 (N.D.N.Y. Sept. 6, 2016) (citing
http://en.islamway.net/article/12571/suhur-pre-dawn-meal).
End of Document © 2026 Thomson Reuters. No claim to original U.S. Government Works.
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Gordon v. City of New York, Not Reported in F.Supp.2d (2012)
© 2026 Thomson Reuters. No claim to original U.S. Government Works. 1
KeyCite Yellow Flag
Distinguished by John v. Lewis, E.D.N.Y., March 31, 2017
2012 WL 1068023
Only the Westlaw citation is currently available.
NOT FOR PUBLICATION
United States District Court,
E.D. New York.
Christopher GORDON, Plaintiff,
v.
The CITY OF NEW YORK, New York City Police Officer Carlos Persalta, Shield
# 30640, TD Bank, Elliot Lopez, Curtis Herbert, and Isaac Duncan, Defendants.
No. 10–CV–5148 (CBA)(LB).
|
March 29, 2012.
Attorneys and Law Firms
Christopher Gordon, Hasbrouck, NJ, pro se.
Ilan Goldbard, Max Oliver Mccann, NYC Law Department, Mary Theresa O'Flynn, Corporation Counsel of the City of New
York, New York, NY, for Defendants.
MEMORANDUM & ORDER
AMON, Chief Judge.
*1 Plaintiff Christopher Gordon (“Gordon”), pro se, has filed suit pursuant to 42 U.S.C. § 1983 and state law, alleging various
violations of his constitutional rights—primarily false arrest and malicious prosecution arising out of his arrest and detention
in November 2007 on suspicion that he attempted to cash stolen checks at a TD Bank branch. At the time of this first arrest,
Gordon was not prosecuted, but he was later indicted and convicted of larceny and other crimes based on the events at TD Bank.
Defendants City of New York and Officer Carlos Peralta now move to dismiss the claims against them pursuant to Rule 12(b)
(6) of the Federal Rules of Civil Procedure. Also before the Court is the Report and Recommendation (R & R) of the Honorable
Lois Bloom, United States Magistrate Judge, recommending that the Court dismiss the claims against the other four defendants
because the amended complaint did not properly allege that they acted under color of state law.
For the reasons stated below, the motion to dismiss filed by the City of New York and Officer Peralta is granted in part and
denied in part. The Court also adopts the well-reasoned R & R of the Magistrate Judge, and the claims against the remaining
four defendants are dismissed in full.
I. BACKGROUND
Gordon's factual narrative is at times difficult to follow, but the following facts appear to be alleged in the First Amended
Complaint (“Compl.”). On November 2, 2007, Gordon claims that he accompanied a co-worker, defendant Curtis Herbert, to
a branch of Commerce Bank (since acquired by TD Bank, as it will be referred to in this Order) to withdraw payments for
construction work that had been contracted to Herbert and informally sub-contracted to Gordon. (Compl.¶ 8.) It appears that
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some time earlier, Herbert had attempted to deposit checks allegedly signed by Isaac Duncan and drawn on Duncan's account
at Chase Bank, but TD Bank placed the funds on hold due to a suspicion of misconduct. TD Bank then contacted Duncan, who
claimed that the checks were stolen and his signature on them forged. (Compl. ¶¶ 33–34; Pl. Opp., Ex. 4.) Accordingly, when
Gordon and Herbert arrived at TD Bank to collect the funds, they were detained by bank staffers, who called 911 to report that
the two men were attempting to cash forged checks. Defendant Officer Peralta responded to the call and arrested Gordon and
Herbert on the scene. (Compl.¶¶ 8, 30.) Gordon was charged with Grand Larceny in the Second Degree, Identity Theft in the
First Degree, and Forgery in the Second Degree. (Compl.¶ 8.) Gordon's complaint asserts that he was detained until November
4, 2007, when he was brought before a judge in the Kings County Criminal Court who promptly dismissed the case against
Gordon for lack of evidence and released him. (Compl.¶ 9–10.) The complaint also states that upon his release, he was “without
any further knowledge ... of a continuing criminal investigation” against him. (Compl.¶ 10.)
*2 Gordon's Memorandum in Opposition to the Defendants' Motion to Dismiss tells a somewhat different story of the events
of November 2–4, 2007. Gordon seems to claim that shortly after his arrest on November 2, the District Attorney's Office
notified police that they were declining to prosecute Gordon for the events at TD Bank due to lack of evidence connecting him
to the allegedly stolen checks. Gordon claims that the DA's Office instructed the police to release him, but that Officer Peralta
nonetheless “unlawfully” and “extrajudicially” detained him for over 48 hours until November 4. 1 (See Pl. Opp. at ¶ 3, 9,
11.) Gordon simultaneously seems to maintain that he “was presented before the Kings County Criminal Court on November
4, 2007” and the case was dismissed at that time. (Pl.Opp.¶ 6.) In any event, Gordon's combined account indicates that on
November 2–4, 2007, any charges stemming from the TD Bank events were dropped, he was not arraigned, and he was released
by November 4 with no knowledge of any pending matters related to that incident. 2
The prosecution against Herbert, however, continued. (Compl.¶ 58.) Gordon claims that Herbert later entered into an agreement
with the DA's Office whereby he agreed to testify against Gordon in exchange for the charges against Herbert being dismissed.
(Compl.¶ 58.) Accordingly, charges against Gordon were newly submitted to the grand jury in March 2008, and testimony was
presented from Herbert, Officer Peralta, and representatives from TD Bank and Chase Bank. (Compl.¶ 13.) Gordon claims
he was then indicted for the previously dismissed charge of Grand Larceny in the Second Degree, along with new charges of
Grand Larceny in the Third Degree, Criminal Possession of a Forged Instrument, and Petit Larceny. (Compl.¶ 13.) Gordon was
subsequently “re-arrested” on September 23, 2008 pursuant to this indictment. (Compl.¶ 21.)
Gordon's case proceeded to trial and on September 4, 2009, a jury convicted him of Grand Larceny in the Second Degree, Grand
Larceny in the Third Degree, Petit Larceny, and two counts of Criminal Possession of a Forged Instrument. (See Compl., Ex.
H; Pl. Opp., Ex. 1.; O'Flynn Decl., Ex. D.)
II. DEFENDANTS CITY OF NEW YORK AND OFFICER PERALTA'S MOTION TO DISMISS
A. Standard of Review
To withstand a motion to dismiss for failure to state a claim, “a complaint must contain sufficient factual matter, accepted as
true, to ‘state a claim to relief that is plausible on its face.’ ” Ashcroft v. Iqbal, 556 U.S. 662, 129 S.Ct. 1937, 1949, 173 L.Ed.2d
868 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007)). A complaint that
contains only “labels and conclusions” or “a formulaic recitation of the elements of a cause of action will not do.” Twombly, 550
U.S. at 555. Neither will a complaint that contains only “naked assertion[s]” without “further factual enhancement.” Id. at 557.
Iqbal identifies a “two-pronged” approach to determining the sufficiency of a complaint. 129 S.Ct. at 1950. First, courts can
“begin by identifying pleadings that, because they are no more than conclusions, are not entitled to the assumption of truth.”
Id. Second, they can then identify whether the complaint, stripped of its conclusory pleadings, “plausibly give[s] rise to an
entitlement to relief.” Id. “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 plausibility standard is not akin to a ‘probability
requirement,’ but it asks for more than a sheer possibility that a defendant has acted unlawfully.” Id. A court's consideration
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on a motion to dismiss is “limited to facts stated on the face of the complaint, in documents appended to the complaint or
incorporated in the complaint by reference, and to matters of which judicial notice may be taken.” Allen v. WestPoint–Pepperell,
Inc.., 945 F.2d 40, 44 (2d Cir.1991). For example, “courts routinely take judicial notice of documents filed in other courts, ... not
for the truth of the matters asserted in the other litigation, but rather to establish the fact of such litigation and related filings.”
Kramer v. Time Warner Inc., 937 F.2d 767, 774 (2d Cir.1991); see Staehr v. Hartford Financial Servs. Group, Inc., 547 F.3d
406, 425 (2d Cir.2008).
*3 Where the plaintiff appears pro se, a court will construe his pleadings liberally and will interpret them “to raise the strongest
arguments that they suggest.” Cruz v. Gomez, 202 F.3d 593, 597 (2d Cir.2000). However, “[t]he duty to liberally construe a [pro
se ] plaintiff's complaint is not the equivalent of a duty to rewrite it.” Kirk v. Heppt, 532 F.Supp.2d 586, 590 (S.D.N.Y.2008)
(internal quotation marks and alterations omitted); see also Chavis v. Chappius, 618 F.3d 162, 170 (2d Cir.2010) (“[T]hough
we are obligated to draw the most favorable inferences that [a pro se ] complaint supports, we cannot invent factual allegations
that he has not pled.”)
B. Discussion
As an initial matter, Gordon does not appear to dispute the proposition, asserted in the defendants' motion, that he can bring
neither a false arrest nor a malicious prosecution claim based on his arrest on September 23, 2008, because that arrest directly
resulted in a conviction. 3 See Savino v. City of New York, 331 F.3d 63, 72 (2d Cir.2003) (malicious prosecution claim requires
that proceedings terminated in the plaintiff's favor); Cameron v. Fogarty, 806 F.2d 380, 387–89 (2d Cir.1986) (plaintiff cannot
recover for false arrest or malicious prosecution if he was convicted of the crime for which he was arrested). Rather, the amended
complaint states, and Gordon's opposition papers repeatedly emphasize, that he brings his false arrest and malicious prosecution
claims based only on the November 2, 2007 arrest. (See Compl. ¶ 7; Pl Affirmation ¶ 3; Pl. Opp. ¶ 2, 3, 5, 9, 10, 12, 13, 16, 21.)
Accordingly, it is only on this former arrest that the Court will focus its analysis, and any false arrest or malicious prosecution
claims related to the September 23, 2008 arrest and prosecution are deemed withdrawn. To the extent Gordon's complaint
implies that he is bringing other claims related to his trial and conviction, they are dealt with in Section II.B.4.d below.
1. Claims against the City of New York
The Court observes at the outset that Gordon's allegations against the City of New York fail to satisfy the requirements of
Monell v. New York City Dep't of Social Servs., 436 U.S. 658, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978). In order to sustain a claim
for relief under 42 U.S.C. § 1983 against a municipal defendant, a plaintiff must show the existence of an officially adopted
policy or custom, and a direct causal connection between that policy or custom and the deprivation of a constitutional right.
Bd. of County Comm'rs v. Brown, 520 U.S. 397, 403, 117 S.Ct. 1382, 137 L.Ed.2d 626 (1997). “Proof of a single incident of
unconstitutional activity is not sufficient to impose liability under Monell, unless proof of the incident includes proof that it was
caused by an existing, unconstitutional municipal policy, which can be attributed to a municipal policymaker.” City of Oklahoma
v. Turtle, 471 U.S. 808, 823–24, 105 S.Ct. 2427, 85 L.Ed.2d 791 (1985). Stated differently, the plaintiff must demonstrate that
the municipality was the “moving force” behind the alleged injury. Brown, 520 U.S. at 404.
*4 Gordon's complaint does not allege the existence of a municipal policy or custom at all. In his opposition memorandum,
Gordon occasionally uses the phrase “common policy and practice,” (e.g. Pl. Opp. ¶¶ 17, 19, 20.), but this allegation is
unsupported by anything other than the facts of what occurred in his particular case. See Ricciuti v. N.Y.C. Transit Authority, 941
F.2d 119, 123 (2d Cir.1991) (“[A] single incident alleged in a complaint, especially if it involved only actors below the policy-
making level, does not suffice to show a municipal policy.”); Santiago v. Campisi, 91 F.Supp.2d 665, 676 (S.D.N.Y.2000).
Moreover, mere conclusory references to a policy or custom, with no supporting facts, will not suffice to state a claim of §
1983 municipal liability. See Ricciuti, 941 F.2d at 124 (“[O]ur prior cases suggest that an allegation of municipal policy or
custom would be insufficient if wholly conclusory.”); 5 Borough Pawn, LLC v. City of New York, 640 F.Supp.2d 268, 299
(S.D.N.Y.2009) (dismissing Monell claim because the plaintiffs' “assertion that the City has an unconstitutional policy is based
on nothing more than their unsupported supposition”); Brodeur v. City of New York, 2002 WL 424688, at *6 (S.D.N.Y.2002).
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Accordingly, since Gordon's complaint is devoid of factual support for his references to a municipal policy, the § 1983 claims
against the City of New York are dismissed. The remaining § 1983 causes of action will be analyzed only as pertains to Officer
Peralta.
2. False Arrest
Gordon has brought a claim for false arrest and false imprisonment, claiming that his November 2007 arrest was not supported
by probable cause, and that he was unlawfully detained by the police for two days. The defendants argue that Gordon's false
arrest claim arising out of the events of November 2, 2007 is barred by his eventual conviction for those crimes.
A § 1983 claim for false arrest or false imprisonment, based on an individual's right to be free from unreasonable seizures, is
substantially the same as a claim for false arrest under New York law. Boyd v. City of New York, 336 F.3d 72, 75 (2d Cir.2003).
Such a claim requires the plaintiff to show (1) that the defendant intended to confine the plaintiff; (2) that the plaintiff was
conscious of the confinement; (3) that the plaintiff did not consent to the confinement; and (4) that the confinement was not
otherwise privileged. Savino v. City of New York, 331 F.3d 63, 75 (2d Cir.2003). The existence of probable cause to arrest
renders an arrest privileged and “is a complete defense to an action for false arrest.” Bernard v. United States, 25 F.3d 98, 102
(2d Cir.1994); see Jaegly v. Couch, 439 F.3d 149, 152 (2d Cir.2006) (“[T]he existence of probable cause is an absolute defense
to a false arrest claim.”).
As noted above, it has been repeatedly held in this circuit that in an action for false arrest, “the plaintiff can under no
circumstances recover if he was convicted of the offense for which he was arrested,” because the conviction is treated as
conclusive evidence of probable cause to arrest. Cameron, 806 F.2d at 387; Weyant v. Okst, 101 F.3d 845, 852 (2d Cir.1996)
(conviction not reversed on appeal is conclusive evidence of probable cause to arrest); Jones v. King, 2011 WL 4484360, at *7
(S.D.N.Y.2011) (“Plaintiff's claim of false arrest is barred by the existence of probable cause for the arrest, which is established
as a matter of law by his conviction.”); Kneitel v. Danchuk, 2007 WL 4441224, at *5 (E.D.N.Y.2007) (“A prosecution and
conviction, if not overturned, is conclusive evidence that an arrest was supported by the requisite probable cause.”) The plaintiff
need not be convicted of every crime for which he was arrested for this bar to apply; the existence of a valid conviction for any
of the crimes underlying the arrest will foreclose a later false arrest claim. Jones, 2011 WL 4484360, at *7; Ostroski v. Town
of Southold, 443 F.Supp.2d 325, 335 (E.D.N.Y.2006) (citing Jaegly v. Couch, 439 F.3d 149, 154 (2d Cir.2006)); see DeVito v.
Barrant, 2005 WL 2033722, at *4 (E.D.N.Y.2005).
*5 The defendants argue that because Gordon's arrest on November 2, 2007 was based on the same charges for which he was
eventually convicted, the above rule should still bar him from pursuing a false arrest claim, even though Gordon was released
at that time, and it was not until 2008 that Gordon was indicted and convicted. This argument raises the question of whether the
Cameron rule only bars a false arrest claim based on the arrest that immediately preceded the conviction, or if it also forecloses a
false arrest claim based on an earlier, unfruitful arrest arising out of the same conduct. The language and logic of Cameron would
seem to apply to any claim for false arrest when the plaintiff is eventually convicted of an offense underlying that arrest, since
Cameron expressly rejected the proposition that a “premature” arrest is actionable when it nonetheless produces a conviction:
The fact of conviction means that the plaintiff was not entitled to escape arrest entirely and that the arrest
was simply premature. Though the right to be free from arrest without probable cause is substantial, the
injury caused solely by prematurity of arrest is, of itself, insubstantial.... [W]e conclude that the proper
accommodation between the individual's interest in preventing unwarranted intrusions into his liberty and
society's interest in encouraging the apprehension of criminals requires that § 1983 doctrine be deemed ...
to incorporate the common-law principle that, where law enforcement officers have made an arrest, the
resulting conviction is a defense to a § 1983 action asserting that the arrest was made without probable
cause.
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Cameron, 806 F.2d at 388–89. The Court concludes that, at least in the circumstances presented here, it would be difficult to
draw a principled distinction between Gordon's two arrests wherein his conviction would prevent a false arrest claim based
on the second arrest, but would allow a claim based on the first, even though the first arrest arose out of the same conduct.
The Court thus finds, based on Cameron and its lineage, that Gordon's conviction bars his claim that he was arrested without
probable cause at TD Bank on November 2, 2007.
This conclusion, however, does not end the inquiry. In Gordon's opposition papers, he now appears to be alleging that shortly
following his arrest, the DA's Office told Officer Peralta that they were not pursuing any charges against Gordon because of
a lack of evidence connecting him to the stolen checks, and instructed that Gordon should be released from custody. Gordon
claims that Officer Peralta nonetheless detained Gordon unjustifiably and without probable cause for over 48 hours until a judge
released him on November 4. Gordon also contends that at that time, “there were no warrants to legally detain him.” (Pl.Opp.¶
3, 17.) Given a court's duty to liberally construe pro se pleadings, the Court believes it should view these new facts as amending
the allegations of the complaint. See Chavis v. Chappius, 618 F.3d 162, 170 (2d Cir.2010); Cusamano v. Sobek, 604 F.Supp.2d
416, 461 (N.D.N.Y.2009).
*6 On their face, these allegations would appear to state a freestanding claim for false imprisonment that is separable from the
initial arrest at TD Bank—that is, a claim that Officer Peralta kept Gordon in police custody, without probable cause, for some
reason beyond the TD Bank charges. Furthermore, Gordon's allegations appear to state a claim for unreasonable detention,
based his assertions that he was unreasonably held following a warrantless arrest for over 48 hours before being presented
to a judge. See County of Riverside v. McLaughlin, 500 U.S. 44, 53, 56, 111 S.Ct. 1661, 114 L.Ed.2d 49 (1991) (following
warrantless arrest, Fourth Amendment requires “prompt” judicial probable cause determination without “unreasonable delay”;
over 48 hours presumptively unreasonable); Bryant v. City of New York, 404 F.3d 128, 136–39 (2d Cir.2005) (analyzing § 1983
claim based on “prolonged ... postarrest detention” under Fourth Amendment standards, and upholding dismissal because “the
duration of plaintiffs' detentions did not come close to the presumptively unreasonable 48–hour mark”); Wang v. Vahldieck,
2012 WL 92423, at *8 (E.D.N.Y.2012) (upholding § 1983 claim for unreasonable detention based on allegation that defendant
“deliberately delayed processing of [plaintiff's] paperwork in order to maximize the length of her detention”); Richardson
v. Providence, 2011 WL 3701887, at *8 (E.D.N.Y.2011) (plaintiff's allegations that “defendants detained him capriciously
and arbitrarily” following warrantless arrest stated claim for unreasonable detention under § 1983); Gonzalez v. Bratton, 147
F.Supp.2d 180, 199–200 (S.D.N.Y.2001) (finding evidence presented at trial sufficient to support jury's verdict on § 1983 claim
for unreasonable detention based on plaintiff's 27–hour detention following arrest).
Moreover, the defendants' Reply concedes that the DA's Office declined prosecution for lack of evidence on November 2, and
that Gordon was nonetheless detained for some additional period of time. The defendants argue that Gordon “was not held
pursuant to the charges dropped by the prosecution on November 2,” but on some other outstanding warrant. (Def. Reply at 3.)
In support of this assertion, the defendants have submitted a document from the New York Police Department's booking system
dated November 2, 2007 (Gordon's “OLPA History”). Beyond urging the existence of this unspecified “outstanding warrant,”
the defendants do not offer any other arguments for why Gordon's claims related to this period of detention should be dismissed
as a matter of law at this time. (Def. Reply at 3–4.)
The Court does not believe it is appropriate to consider the “OLPA History” document or the warrant it references on a motion
to dismiss, since it is not a public filing from another court of which this Court may take judicial notice, but is rather more
akin to a police report that is not properly considered at this stage. See Crews v. County of Nassau, 2007 WL 4591325, at *6
(E.D.N.Y.2007) (declining to take judicial notice of “non-judicial documents (such as police reports)” that were not appended
to the complaint on a motion to dismiss). In any event, this document is far too abbreviated to provide any clear indication of
why Gordon was detained. Thus, given the lack of factual clarity, and in light of the defendants' concession that Gordon was
held by police for some period of time for charges unrelated to the TD Bank events, the Court will allow § 1983 claims for false
imprisonment and unreasonable detention against Officer Peralta to survive at this time.
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*7 Accordingly, the Court will grant the motion to dismiss the claim that Gordon was arrested without probable cause for
forgery and larceny at TD Bank on November 2, 2007, but will deny the motion to dismiss the claims for false imprisonment and
unreasonable detention against Officer Peralta arising out of Gordon's alleged detention from November 2–4, 2007, following
the decision by the DA's Office to not pursue charges based on the TD Bank incident.
3. Malicious Prosecution
Gordon also brings a malicious prosecution claim based on the fact that after his first arrest, any charges arising out of the TD
Bank events were dropped by the DA's Office and/or dismissed by a judge. The defendants argue that Gordon cannot maintain
any claim for malicious prosecution based on those events, because he suffered no post-arraignment deprivation of liberty. The
Court agrees with the defendants.
Like a claim of false arrest, the elements of a malicious prosecution claim pursuant to 42 U.S.C. § 1983 are drawn from state law.
Boyd, 336 F.3d at 75; Jocks v. Tavernier, 316 F.3d 128, 134 (2d Cir.2003). To succeed on a claim of malicious prosecution, the
plaintiff must prove four elements: (1) the defendant initiated or continued a criminal proceeding; (2) the proceeding terminated
favorably to the plaintiff, (3) there was no probable cause for the criminal charge; and (4) the defendant acted maliciously.
Rothstein v. Carriere, 373 F.3d 275, 282 (2d Cir.2004); Savino v. City of New York, 331 F.3d 63, 72 (2d Cir.2003). He must also
prove a fifth element, which comes from the federal constitution: “a sufficient post-arraignment liberty restraint to implicate
the plaintiff's Fourth Amendment rights.” Rohman v. NYC Transit Authority, 215 F.3d 208, 215 (2d Cir.2000); see also Singer v.
Fulton County Sheriff, 63 F.3d 110, 116 (2d Cir.1995) (“A plaintiff asserting a Fourth Amendment malicious prosecution claim
under § 1983 must ... show some deprivation of liberty consistent with the concept of ‘seizure.’ ”). “The essence of malicious
prosecution is the perversion of proper legal procedures.” Id. at 117 (quoting Broughton v. State of New York, 37 N.Y.2d 451,
373 N.Y.S.2d 87, 93, 335 N.E.2d 310 (1975)). Thus, where the plaintiff's claim arises out of a warrantless arrest, he cannot bring
a malicious prosecution claim based only on pre-arraignment events, since there have been no actions taken pursuant to judicial
process. Id. (holding that “[plaintiff's] arrest cannot serve as the predicate deprivation of liberty because it occurred prior to his
arraignment and without a warrant, and therefore was not pursuant to legal process.”); see Holley v. County of Orange, 625
F.Supp.2d 131, 142 (S.D.N.Y.2009).
According to Gordon, he was arrested without a warrant on November 2, 2007 based on the 911 call from TD Bank, but the
DA's Office declined to prosecute him on those arrest charges. He then claims he was nonetheless detained by the police until
November 4, when he was brought before a judge for the first time, and any charges were dismissed. (Compl. ¶¶ 8, 27, 28, 30;
Pl. Opp. ¶¶ 2–6, 9.) He makes no allegation that he was arraigned or that any prosecution was commenced at that time; in fact,
his account insists upon the opposite—that the police detained him “extrajudicially,” in contravention of the DA's instructions,
and that upon his initial appearance a judge immediately ordered his release. Gordon himself refers to his detention as “pre-
arraignment incarceration.” (Pl.Opp.¶ 3.) Further, he emphasizes that he was unaware of any continued investigation into his
involvement at TD Bank until he was “re-arrested” in September 2008 following a grand jury indictment of which he was also
unaware. It is thus clear that Gordon has not alleged that any judicial process was commenced against him on November 2–
4, 2007, or that there was any arraignment or post-arraignment restraint on his liberty at that time. 4 The proper avenue for
redressing Gordon's complaints that the police improperly detained him is grounded in false arrest or false imprisonment, as
discussed above.
*8 Accordingly, Gordon's malicious prosecution claim against Officer Peralta is dismissed.
4. Other § 1983 Claims
Although the defendants have construed Gordon's complaint as only bringing false arrest and malicious prosecution claims
under § 1983, Gordon's opposition memorandum makes reference to a few other claims that he believes himself to be asserting
that have not been addressed by the defendants. Given that, pursuant to the in forma pauperis statute under which Gordon
brings this action, the Court must dismiss a claim if it “is frivolous or malicious” or “fails to state a claim on which relief may
be granted,” the Court will address why these residual federal claims must be dismissed. 28 U.S.C. § 1915(e)(2)(B).
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a) Malicious Abuse of Process
Gordon argues that an “abuse of process claim lies against the defendants as each defendant aided to each other employing
regularly issued legal process to compel the performance of the severely prejudicial conduct in violation of plaintiff's
fundamental rights.” (Pl.Opp.¶ 8.) This appears to be an attempt to state a claim for malicious abuse of process under § 1983.
Any such claim must be dismissed.
“The torts of malicious prosecution and abuse of process are closely allied.” Cook v. Sheldon, 41 F.3d 73, 80 (2d Cir.1994).
Whereas malicious prosecution concerns the improper issuance of process, malicious abuse of process concerns “the improper
use of process after it is regularly issued.” Id. (internal quotations omitted). Like malicious prosecution, state law provides the
elements of a malicious abuse of process claim brought pursuant to § 1983. Id. “In New York, a malicious abuse of process
claim lies against a defendant who (1) employs regularly issued legal process to compel performance or forbearance of some
act (2) with intent to do harm without excuse or justification, and (3) in order to obtain a collateral objective that is outside
the legitimate ends of the process.” Id.
As already noted in the Court's discussion of the malicious prosecution claim, Gordon has made no allegations that his November
2007 arrest resulted in any “regularly issued legal process,” since the charges were dropped and he was released without any
arraignment. Moreover, Gordon has not adequately alleged the “collateral objective” element of the claim. To satisfy this
element, a plaintiff must allege “not that the defendant acted with an improper motive, but rather an improper purpose—that
is, ‘he must claim that [the defendant] aimed to achieve a collateral purpose beyond or in addition to his criminal prosecution.’
” Douglas v. City of New York, 595 F.Supp.2d 233, 344 (S.D.N.Y.2009) (quoting Savino v. City of New York, 331 F.3d 63, 76
(2d Cir.2003)); see also Conte v. County of Nassau, 2010 WL 3924677, at *18 (E.D.N.Y.2010). Here, Gordon states that “the
defendant's objective was to collaterally obtain the unconstituted conviction.” (Pl.Opp.¶ 8.) This amounts only to an allegation
that the defendants acted out of a desire to see Gordon convicted, which is not a collateral objective.
*9 Accordingly, the malicious abuse of process claim is dismissed.
b) Section 1985 Conspiracy
Gordon's memorandum also asserts a claim under 42 U.S.C. § 1985(3). Such a claim requires the plaintiff to allege “(1) a
conspiracy; (2) for the purpose of depriving, either directly or indirectly, any person or class of persons of the equal protection
of the laws, or of equal privileges and immunities under the laws; (3) an act in furtherance of the conspiracy; (4) whereby a
person is either injured in his person or property or deprived of any right or privilege of a citizen of the United States.” Cine SK8,
Inc. v. Town of Henrietta, 507 F.3d 778, 790 (2d Cir.2007). In addition, the plaintiff must show that the alleged conspiracy was
“motivated by some racial or perhaps otherwise class-based, invidious discriminatory animus behind the conspirators' action.”
Thomas v. Roach, 165 F.3d 137, 146 (2d Cir.1999) (internal quotation marks omitted).
In addition to the fact that Gordon offers only the conclusory allegation that he was conspired against “because he is of minority
race” (Pl.Opp.¶ 3), his claim fails because of the intracorporate conspiracy doctrine. Gordon claims that “there was some sort
of conspiracy between the N.Y.C. Police Department and its employees to unlawfully detain him.” (Id.) However, “[u]nder
the intracorporate conspiracy doctrine, officers, agents and employees of a single corporate entity are legally incapable of
conspiring together.” Hartline v. Gallo, 546 F.3d 95, 99 n. 3 (2d Cir.2008); Nassau County Employee “L” v. County of Nassau,
345 F.Supp.2d 293, 304–05 (E.D.N.Y.2004). Although “[a]n exception to the intracorporate conspiracy doctrine applies to
individuals within a single entity when they are pursuing personal interests wholly separate and apart from the entity,” Gordon
has not alleged that Officer Peralta acted out of any personal interest distinct from those of the police department in general.
Quinn v. Nassau County Police Dep't, 53 F.Supp.2d 347, 360 (E.D.N.Y.1999).
Accordingly, any claims against Officer Peralta under § 1985(3) are dismissed.
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c) Equal Protection
To the extent Gordon's complaint makes reference to any equal protection violations, they are wholly conclusory and
unsupported, and are hereby dismissed. “To prove a violation of the Equal Protection Clause ... a plaintiff must demonstrate
that he was treated differently than others similarly situated as a result of intentional or purposeful discrimination.” Phillips
v. Girdich, 408 F.3d 124, 129 (2d Cir.2005). Here, Gordon has offered nothing beyond the occasional bare assertion that the
actions alleged were taken because he “is of a minority race.” He hasn't alleged any disparity in treatment between himself and
another person, and his papers lack any facts related to his race beyond his identification of himself as a minority. Any equal
protection claim is dismissed.
d) Claims against ADA Hilda Mortensen and Related to Gordon's Conviction
*10 Finally, the Court observes that Gordon's submissions contain repeated allegations directed at the Assistant District
Attorney who prosecuted his case, Hilda Mortensen, related to alleged improprieties in Gordon's grand jury indictment, trial,
and conviction—including various violations of criminal procedure laws, use of a “defective indictment,” and presentation
of tainted evidence—all of which Gordon claims resulted in an illegal conviction and sentence. (Compl.¶¶ 38–41, 46, 50.)
However, notwithstanding having filed many papers in this case, including an amended complaint that added several defendants,
Gordon has never named her as a defendant. Given Gordon's clear understanding of how to add defendants to the cases he files,
the Court is hesitant to infer that this complaint brings claims against Mortensen.
In any event, to the extent Gordon attempts to assert claims against Mortensen, they are barred by absolute prosecutorial
immunity. See Buckley v. Fitzsimmons, 509 U.S. 259, 273, 113 S.Ct. 2606, 125 L.Ed.2d 209 (1993); Parkinson v. Cozzolino, 238
F.3d 145, 150 (2d Cir.2001). Additionally, any claims against Mortensen (or others) that amount to challenges to the validity
of Gordon's conviction are barred by the rule in Heck v. Humphrey, 512 U.S. 477, 114 S.Ct. 2364, 129 L.Ed.2d 383 (1994),
which holds that a plaintiff may not use § 1983 as a vehicle for bringing a claim that “would necessarily imply the invalidity of
his conviction or sentence.” Id. at 487; see Wilkinson v. Dotson, 544 U.S. 74, 81–82, 125 S.Ct. 1242, 161 L.Ed.2d 253 (2005);
Channer v. Mitchell, 43 F.3d 786 (1994); Jackson v. County of Nassau, 2010 WL 335581, at *7–8 (E.D.N.Y.2010). Although
Gordon's custody status at the present moment is unclear from the docket sheet, it is clear that he filed his complaint, amended
complaint, and opposition papers while incarcerated for the conviction at issue in this case. He thus had available to him at that
time the avenues of both direct appeals and habeas review if he wished to challenge the validity of his conviction. Because he
has not asserted that his conviction was ever vacated, he is barred from seeking to imply the invalidity of his conviction through
a § 1983 action. See Browdy v. Karpe, 2004 WL 2203464, at *5–8 (D.Conn.2004), aff'd, 131 Fed. App'x 751, 753 (2d Cir.2005);
Amaker v. Coombe, 2002 WL 523388, at *17–18 (S.D.N.Y.2002).
Accordingly, any claims against ADA Mortensen or any other defendant that are premised on the assertion that Gordon's
September 2009 trial and conviction were unconstitutional or otherwise invalid are dismissed.
5. State law claims
The City and Officer Peralta have moved to dismiss any state law claims against them based on Gordon's failure to file a
notice of claim. See N.Y. Gen. Mun. L. §§ 50–e, 50–k(6); Khaja–Moinuddin v. City of New York, 2010 WL 3861003, at *7
(E.D.N.Y.2010). Gordon does not appear to contest this proposition in this opposition papers. Accordingly, to the extent the
complaint asserts any state tort law claims against Officer Peralta or the City, they are dismissed.
III. JUDGE BLOOM'S REPORT AND RECOMMENDATION
*11 On January 28, 2011, Gordon amended his complaint to add four private defendants: TD Bank, Elliot Lopez, Curtis
Herbert, and Isaac Duncan. On July 28, 2011, after receiving a request from Gordon for assistance in serving process on these
newly added defendants, Magistrate Judge Lois Bloom issued an R & R recommending that the Court dismiss the amended
complaint against these four defendants because Gordon did not properly allege that they acted under color of state law, as
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required for actions under § 1983. Gordon filed objections pursuant to Fed.R.Civ.P. 72(b) and 28 U.S.C. § 636(b) (1) in a
submission dated August 31, 2011.
In reviewing an R & R, the Court “must determine de novo any part of the magistrate judge's disposition that has been properly
objected to.” Fed.R.Civ.P. 72(b); see also Edwards v. Fischer, 414 F.Supp.2d 342, 346–47 (S.D.N.Y.2006); The European
Community v. RJR Nabisco, Inc., 134 F.Supp.2d 297, 302 (E.D.N.Y.2001). Upon a review of the record and Gordon's objections,
the Court adopts Magistrate Judge Bloom's R & R with the following elaborations, and dismisses all claims against the remaining
four defendants.
A. Discussion
Gordon's lengthy submission of objections consists mostly of recitations of legal principles, with comparatively little addressed
to the particulars of the instant case or to the R & R. Gordon appears to argue that his amended complaint properly pleads that
defendants Lopez, Duncan, and Herbert engaged in a conspiracy with state actors, thus rendering their conduct “under color
of law” and subject to § 1983. However, apart from Gordon's conclusory iterations of the legal standards for state action, his
allegations and arguments remain substantially the same as those already addressed and rejected in the R & R. Although he
repeatedly makes the bare assertion that the private defendants participated in “joint activity” with state actors, the only facts
underlying this claim are that Lopez provided false information to the police based on “mere speculations” (Pl. Obj. at 10); that
Duncan gave “false and misleading information” to the bank, the police department, and the District Attorney's office (id. at
15); and that Herbert offered false testimony to the grand jury in exchange for the charges against him being dropped (id. at 21).
As to TD Bank, Gordon argues only that it “creat[ed] or perpetuat[ed] the policy or custom under which the unconstitutional
practice of Mr. Lopez occurred,” and that it was grossly negligent in supervising its employees. (Id. at 11.)
It is true that a court may find that a private individual acted under color of state law for purposes of § 1983 where the complaint
sets forth specific facts indicating that “the private actor operate[d] as a willful participant in joint activity with the State or
its agents.” Tancredi v. Metro. Life Ins. Co., 316 F.3d 308, 313 (2d Cir.2003) (internal quotation marks omitted). However,
a complaint premised on this “joint participation theory” of state action cannot rest on conclusory assertions that the private
individuals acted in concert with state officials, but must allege facts demonstrating that private actors and agents of the state
“carried out a deliberate, previously agreed upon plan,” or that their actions “constitute[d] a conspiracy or meeting of the minds.”
Dahlberg v. Becker, 748 F.2d 85, 92 (2d Cir.1984); see Rosen v. County of Suffolk, 53 Fed. App'x 578, 580 (2d Cir.2002) (“[I]t
is not enough to make a conclusory allegation that the private and state parties acted in concert, the complaint must allege facts
demonstrating that the private entity acted in concert with the state actor.”); Valez v. City of New York, 2008 WL 5329974, at
*3 (S.D.N.Y.2008).
*12 To that end, as explained by the Magistrate Judge, the mere fact that a private person falsely reported criminal conduct
to government officials is insufficient to establish liability as a state actor under § 1983. See Lugar v. Edmondson Oil Co., Inc.,
457 U.S. 922, 939 n. 21, 102 S.Ct. 2744, 73 L.Ed.2d 482 (1982) (private party's “mere invocation of state legal procedures”
does not render that party a state actor under § 1983); Dahlberg, 748 F.2d at 93 (allegation that private defendant submitted
false affidavit to state court that led to plaintiff's arrest did not make the defendant a state actor under § 1983); Rosen, 53 Fed.
App'x 578 (allegations that private individual filed false petitions seeking orders of protection and false criminal complaint were
insufficient to establish state action under § 1983); Schneider v. Tretola, 8 F.3d 809 (1st Cir.1993) (table) (“The defendants, all
private persons, cannot be held liable under 42 U.S.C. § 1983 for their alleged acts in employing ‘false representations and phony
process to induce the policemen to falsely arrest’ and imprison plaintiff because the private defendants' actions do not constitute
‘state action,’ a requisite of a § 1983 cause of action.”); Baez v. JetBlue Airways, 745 F.Supp.2d 214, 221 (E.D.N.Y.2010)
(allegation that private defendants “provided false information to law enforcement officials who then interrogated and arrested”
the plaintiff is insufficient to establish state action); Fisk v. Letterman, 401 F.Supp.2d 362, 377 (S.D.N.Y.2005); Vazquez v.
Combs, 2004 WL 2404224, at *4 (S.D.N.Y.2004). Here, Gordon asserts only that the private defendants falsely accused him of
criminal activity to state officials, which does not establish that they acted under color of state law.
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As to the claim related to Herbert's grand jury testimony, “there are two reasons why § 1983 does not allow recovery of damages
against a private party for testimony in a judicial proceeding.” Briscoe v. LaHue, 460 U.S. 325, 329, 103 S.Ct. 1108, 75 L.Ed.2d
96 (1983). First, witnesses in judicial proceedings are protected by absolute immunity against damages claims based on the
substance of their testimony. See id. at 334 (concluding that “it is clear that § 1983 did not abrogate the absolute immunity
existing at common law” for witnesses); San Filippo v. U.S. Trust Co. of New York, Inc., 737 F.2d 246, 254 (2d Cir.1984)
(extending Bricoe immunity to grand jury testimony). Second, an allegation that a private individual gave false testimony in
a judicial proceeding, without more, does not establish state action for purposes of § 1983. See Briscoe, 460 U.S. at 329–30
(“It is beyond question that, when a private party gives testimony in open court in a criminal trial, that act is not performed
‘under color of law.’ ”); Flores v. Levy, 2008 WL 4394681, at *7 (E.D.N.Y.2008) (“[T]he fact that plaintiff alleges that [a private
actor] perjured herself as a witness at his trial does not transform her into a state actor.”); Cipolla v. County of Rensselaer, 129
F.Supp.2d 436, 447 (N.D.N.Y.2001); Elmasri v. England, 111 F.Supp.2d 212, 221 (E.D.N.Y.2000) (“[T]he mere fact that an
individual testifies at a court proceeding does not render that person a state actor.”).
*13 Moreover, the fact that Herbert may have agreed to testify in exchange for the dismissal of the charges against him is
not a sufficient allegation that he conspired with state actors to deprive Gordon of his constitutional rights. “To state a claim
against a private entity on a section 1983 conspiracy theory, the complaint must allege facts demonstrating that the private entity
acted in concert with the state actor to commit an unconstitutional act.” Ciambriello v. County of Nassau, 292 F.3d 307, 324
(2d Cir.2002) (quoting Spear v. Town of West Hartford, 954 F.2d 63, 68 (2d Cir.1992)). The plaintiff's submissions contain no
such facts. Indeed, Gordon's allegations emphasize that Herbert was pursuing a personal vendetta against him, (Compl.¶ 59),
and he does not offer any facts demonstrating that the prosecutor was even aware of any perjury on Herbert's part. The only
allegation offered to show concerted action with the state is that Herbert offered to testify against Gordon in exchange for his
own criminal case being dismissed. (Pl. Obj. at 21.) There is nothing inherently improper in a witness cooperation agreement
and, without more, these allegations do not demonstrate a conspiracy with a state actor sufficient to establish that Herbert acted
under color of state law.
Finally, as to TD Bank, Gordon has offered no facts demonstrating that it acted under color of law. The vague allegation that
the private bank had a “policy or custom” under which its employees' actions occurred, or that it was negligent in supervising
its employees, does not make it a state actor for § 1983 purposes, especially since the Court has already determined that its
employees did not act under color of state law in reporting information to the police.
In sum, Gordon's submissions do not rise above “merely conclusory allegation [s] that a private entity acted in concert with
a state actor,” which “do [ ] not suffice to state a § 1983 claim against the private entity.” Ciambriello, 292 F.3d at 324 (2d
Cir.2002). The Court thus agrees with the Magistrate Judge that the § 1983 claims against the private defendants must be
dismissed for this reason.
Even if the Court were to find that one or more of these defendants acted under color of law, there is an alternative basis for
dismissing Gordon's § 1983 claims: This Court held above that Gordon's conviction barred him from bringing § 1983 challenges
to both arrests related the events at TD Bank, or to the prosecution in 2008 that led to his conviction. The Court also held
that Gordon alleged no post-arraignment deprivation of liberty that could serve as the basis of a malicious prosecution claim
premised on the November 2007 arrest, and that Gordon failed to state any other claims under § 1983. As Gordon's claims
against these four defendants are premised only on their alleged involvement in Gordon's arrests, prosecution, and conviction for
the events at TD Bank, the dismissal holdings of this Court's prior order would apply equally to them. There are no allegations
that any of these defendants were involved in the separate false imprisonment and unreasonable detention claims that remain
against Officer Peralta.
*14 Finally, the Court notes that to the extent Gordon's complaint contains fleeting citations to New York Civil Rights Law §
40–c; the state due process clause, N.Y. Const., art. 1, § 6; or the state equal protection clause, N.Y. Const., art. 1, § 11, he has
not articulated such claims with any clarity. Additionally, in his objections to the R & R, he did not argue that he had asserted
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any state law claims against the private defendants that should be retained. Accordingly, any state law claims, if asserted here,
are dismissed.
IV. CONCLUSION
In sum, all claims against the City of New York are dismissed; and all claims against Officer Peralta are dismissed with the
exception of claims for false imprisonment and unreasonable detention based on Gordon's allegations that he was unlawfully
detained from November 2–4, 2007. The claims against TD Bank, Elliot Lopez, Curtis Herbert, and Isaac Duncan are dismissed
in full.
SO ORDERED.
All Citations
Not Reported in F.Supp.2d, 2012 WL 1068023
Footnotes
1 It appears that Gordon is making this new allegation in response to the “Declined Prosecution” form from the DA's
Office, which the defendants submitted as an exhibit to their motion to dismiss. (See O'Flynn Aff., Ex. E.)
2 Gordon also alleges that the Assistant District Attorney, without his knowledge, presented the case to a grand jury
on December 6, 2007, but the grand jury did not return an indictment, and the case was again dismissed and sealed.
(Compl.¶¶ 11–12, 21.)
3 While Gordon repeatedly refers to this as an “illegal conviction,” (Compl.¶ 15), this assertion appears to be his own
personal belief, and he never asserts that this conviction has been overturned or vacated on appeal, or that he has filed
a habeas petition. Instead, he refers to it as his “current” conviction, and argues that it should have no bearing on his
claims arising out of the November 2, 2007 arrest. (Pl.Opp.¶ 12.) Regardless, as discussed further infra, Gordon cannot
bring a § 1983 claim that would necessarily imply the invalidity of a standing conviction for which he was serving his
sentence when he filed this action. See Heck v. Humphrey, 512 U.S. 477, 486–87, 114 S.Ct. 2364, 129 L.Ed.2d 383
(1994). Thus, any argument that the alleged invalidity of the conviction should lift the bar to challenging the arrest and
prosecution that preceded it cannot lie.
4 The Court notes that although the defendants have made reference to an outstanding (and seemingly unrelated) warrant
that may have been the basis for Gordon's detention, Gordon's submissions insist that there was no warrant involved in
his detention (e.g. Pl. Opp. ¶ 3), and the Court accepts that allegation for purposes of this motion. Thus, Gordon has
never offered any facts to suggest that he is bringing a malicious prosecution claim attacking a judicially issued warrant,
cf. Singer, 63 F.3d at 117, but has always maintained that his claim is premised on the charges related to his warrantless
arrest at TD Bank, for which there was never an arraignment.
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Liverpool v. City of New York, Not Reported in Fed. Supp. (2023)
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2023 WL 2746124
Only the Westlaw citation is currently available.
United States District Court, S.D. New York.
LIVERPOOL, Plaintiff,
v.
The CITY OF NEW YORK et al., Defendants.
20-cv-04629 (ALC)
|
Signed March 31, 2023
Attorneys and Law Firms
Anton F. Liverpool, Cranston, RI, Pro Se.
Mostafa Khairy, New York City Law Department, New York, NY, for Defendant Officer Supris.
Inna Shapovalova, Mostafa Khairy, New York City Law Department, New York, NY, for Defendants The City of New York,
Ronald Wilson, Capt. Jacob Rivers, Wendy White, Kisa Smalls, Warden Charlton Lemon, Captain John Hernandez.
Officer Supris, Pro Se.
OPINION AND ORDER
ANDREW L. CARTER, United States District Judge:
*1 Plaintiff Anton Liverpool (“Plaintiff” or “Mr. Liverpool”), currently incarcerated in Rhode Island, brings this action pro
se, invoking 42 U.S.C. § 1983 and a state negligence claim. Plaintiff alleges that while he was a pretrial detainee at the Anna
M. Kross Center on Rikers Island in 2018, he was injured while being transported by a Department of Correction (“DOC”)
bus to the Manhattan Detention Complex (“MDC”) 1 . Plaintiff alleges that Defendants acted with deliberate indifference to his
safety, thereby violating his constitutional rights. Plaintiff brings this action against the City of New York, Correction Officer
Darrien Lewis, Captain Jacob Rivers, Warden Charlton Lemon, Correction Officer John Hernandez, Captain Ronald Wilson,
Warden Kisa Smalls, Deputy Warden Wendy White, (hereinafter “Defendants”) and Correction Officer Hermantin Surpris. 2
Defendants now move to dismiss the second amended complaint (“SAC”) with prejudice pursuant to Federal Rules of Civil
Procedure 12(b)(6) and 12(c). For the reasons discussed below, Defendants’ motion to dismiss is GRANTED.
BACKGROUND
I. Procedural Background
On June 11, 2020, Plaintiff commenced this lawsuit pursuant to 42 U.S.C. § 1983. ECF No. 1. This initial complaint named
Correction Officer Hermantin Surpris, the City of New York, a “John Doe” Officer, and numerous supervisory officials as
defendants. Id. By order dated June 30, 2020, the Court granted Plaintiff's request to proceed without prepayment of fees, that is,
in forma pauperis. ECF No. 5. On July 13, 2020, the Court sua sponte 3 dismissed Plaintiff's § 1983 claim asserting deliberate
indifference to a serious risk of harm to him for failure to state a claim. See ECF No. 7 at 5. However, the Court noted that, to the
extent Plaintiff sought to invoke the Court's diversity of citizenship jurisdiction to bring a negligence claim, he was granted leave
to file an amended pleading setting forth facts demonstrating complete diversity of citizenship between the parties. Id. at 5-6.
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On August 19, 2020, Plaintiff filed an amended complaint naming Mr. Surpris, the City of New York and several John Doe
officers as defendants. First Amended Complaint (“FAC”), ECF No. 8. On August 25, 2020, this case was reassigned to me. On
August 26, 2020, the Court issued an order pursuant to Valentin v. Dinkins, 121 F.3d 72 (2d Cir. 1997). ECF No. 8. The Court
directed the New York City Law Department to ascertain the identity of each John Doe whom Plaintiff sought to sue and the
address where each defendant may be served. Id. The Court directed the Plaintiff to file a second amended complaint naming
the John Doe defendants. Id. Plaintiff filed the Second Amended Complaint on December 13, 2021, which replaced the John
Doe defendants with the DOC employees who he seeks to sue. SAC, ECF No. 56. On January 12, 2022, Defendants City of
New York and Correction Officer Surpris filed their Answer to the SAC. See ECF No. 57. On May 25, 2022, Magistrate Judge
Ona T. Wang granted these Defendants’ request to file an Amended Answer in order to assert additional affirmative defenses,
which had not been previously asserted in their Answer to the SAC. ECF No. 79. On June 6, 2022, Defendant City of New
York filed an Amended Answer in response to the SAC. See ECF No. 80. On that same date, the City of New York informed
the Court that the New York City Law Department could no longer file an Amended Answer on behalf of Defendant Hermantin
Surpris because he had passed away on June 3, 2022. ECF No. 81. The City filed a Suggestion of Death pursuant to Federal
Rule Civil Procedure 25(A) as to Defendant Surpris. ECF No. 84.
*2 Defendant filed the instant motion to dismiss and supporting memorandum of law on August 7, 2022. ECF Nos. 91-92. On
September 9, 2022, Plaintiff filed a letter requesting an extension of time to respond to the Defendants’ motion. ECF No. 94. On
September 12, 2022, Plaintiff filed a letter responding to the Defendants’ motion. ECF No. 97. The Court construes this letter as
Plaintiff's opposition to the Defendants’ motion (“Opp.”). The Defendants’ reply was filed on September 23, 2022 (“Reply”).
ECF No. 101. The motion is deemed fully briefed. After careful consideration, Defendants’ motion to dismiss is GRANTED.
II. Factual Background
The following facts are taken from the allegations contained in Plaintiff's Second Amended Complaint, which are presumed
to be true for purposes of this motion to dismiss.
According to the SAC, on or about March 23, 2018, 4 while Plaintiff was incarcerated in the Anna M. Kross Center (“AMKC”)
of Rikers Island, he was notified by an unidentified correction officer that he was scheduled to appear in New York County
Criminal Court regarding his pending criminal case. SAC at 1. Due to the inclement weather that day, Plaintiff protested leaving
the facility as it “would be pointless and useless traveling” to court since he believed “most lawyers would not be attending
and [he] would not be seen.” Id.
Plaintiff alleges that he complied with leaving his cell and attending court after Defendants Correction Officer Surpris,
Correction Officer Lewis, Captain Rivers, Warden Kisa Smalls, and Deputy Warden Wendy White, told him, if he did not leave
his cell, he would be forcibly removed from his cell and given a disciplinary infraction. Id. at 1-2. Plaintiff alleges that DOC
policy “dictates that [his] refusal to attend Court will result in [ ] receiving a disciplinary infraction and [ ] physical removal
from the premises.” Id. 1.
According to the SAC, the DOC transportation bus, driven by Correction Officer Surpris, was being driven “sporadic and
erratically” in “hazardous weather conditions.” Id. at 2. Upon arriving at the bus depot of the MDC, Plaintiff noticed that the
correction officers had “neglected care of adequate snow clearance and salt application.” Id. Plaintiff further alleges that upon
entering the MDC entranceway, Officer Surpris accelerated on the gas pedal, “propelling the bus forward into the structural
entrance of the building” and that he continued to accelerate and “grindingly impact[ed] the building until he was clear of the
entrance. Id.
Plaintiff further alleges that he suffered injuries to his head, back, and neck as a result of Officer Surpris’ conduct in scraping
against the wall of the MDC bus depot. Id. at 3. The only allegations against defendants Correction Officer Lewis, Captain
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Wilson, Warden Lemon, Captain Grima, and Correction Officer John Hernandez, is that they “didn't offer [Correction Officer
Surpris] any guidance while entering the area” with the DOC bus. Id. at 2-3.
LEGAL STANDARD
I. Rule 12(b)(6)
When deciding a motion to dismiss under Federal Rule of Civil Procedure 12(b)(6), the Court must “accept as true all factual
statements alleged in the complaint and draw all reasonable inferences in favor of the non-moving party.” McCarthy v. Dun &
Bradstreet Corp., 482 F.3d 184, 191 (2d Cir. 2007). However, the Court need not credit “[t]hreadbare recitals of the elements
of a cause of action, supported by mere conclusory statements.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citing Bell Atl.
Corp. v. Twombly, 550 U.S. 544, 555 (2007)). Claims should be dismissed when a plaintiff has not pleaded enough facts that
“plausibly give rise to an entitlement for relief.” Id. at 679. A claim is plausible “when the plaintiff pleads factual content that
allows the Court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Id. at 678 (citing
Twombly, 550 U.S. at 556). While not akin to a “probability requirement,” the plaintiff must allege sufficient facts to show
“more than a sheer possibility that a defendant has acted unlawfully.” Id. (citing Twombly, 550 U.S. at 556). Accordingly, where
a plaintiff alleges facts that are “ ‘merely consistent with’ a defendant's liability, it ‘stops short of the line between possibility
and plausibility of entitlement to relief.’ ” Id. (quoting Twombly, 550 U.S. at 557). The Court's function on a motion to dismiss
is “not to weigh the evidence that might be presented at a trial but merely to determine whether the complaint itself is legally
sufficient.” Goldman v. Belden, 754 F.2d 1059, 1067 (2d Cir. 1985).
II. Rule 12(c)
*3 “When deciding Rule 12(c) motions for judgment on the pleadings, a court employs the standard that applies to motions
to dismiss a complaint under Rule 12(b)(6).” Walker v. Sankhi, 494 F. App'x 140, 142 (2d Cir. 2012) (citing L-7 Designs, Inc. v.
Old Navy, LLC, 647 F.3d 419, 429 (2d Cir. 2011)). “Thus, a court must accept the allegations contained in the complaint as true
and draw all reasonable inferences in favor of the non-movant.” Id. This tenet, however, is “ ‘inapplicable to legal conclusions.’
” Martine's Serv. Ctr., Inc. v. Town of Wallkill, 554 F. App'x 32, 34 (2d Cir. 2014) (citing Iqbal, 556 U.S. at 678). Simply put, to
survive a Rule 12(c) motion, “[t]he complaint must plead ‘factual content that allows the court to draw the reasonable inference
that the defendant is liable for the misconduct alleged.’ ” Id. More specifically, a complaint must contain “sufficient factual
matter, accepted as true, to state a claim to relief that is plausible on its face.” Urbina v. City of New York, 672 F. App'x. 52, 54
(2d Cir. 2016) (quoting Bank of New York v. First Millennium, Inc., 607 F.3d 905, 922 (2d Cir. 2010)) (emphasis added)
III. Pro Se Litigants
As to Plaintiff's pro se status, it is “well established that the submissions of a pro se litigant must be construed liberally and
interpreted to raise the strongest arguments that they suggest.” Triestman v. Fed. Bureau of Prisons, 470 F.3d 471, 474 (2d Cir.
2006) (internal quotation marks and citation omitted); see Hughes v. Rowe, 449 U.S. 5, 9 (1980) (holding that a pro se party's
pleadings must be liberally construed in his favor and are held to a less stringent standard than the pleadings drafted by lawyers).
Nevertheless, a pro se plaintiff must comply with the relevant rules of procedural and substantive law. Olle v. Columbia Univ.,
332 F.Supp.2d 599, 607 (S.D.N.Y. 2004).
DISCUSSION
Construed liberally, the Court ascertains that Plaintiff brings a claim under 42 U.S.C.§ 1983 asserting deliberate indifference to
serious risk of harm to him and a claim of negligence under New York State law against the Defendants.
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Defendants argue that the Complaint should be dismissed in its entirety on the grounds that: (1) Plaintiff's Section 1983 deliberate
indifference to inmate safety claim fails as a matter of law; (2) Plaintiff's New York State law negligence claim is barred by the
applicable statute of limitations; (3) Plaintiff fails to plausibly allege any personal involvement in the alleged incident by the
defendants; and (4) Plaintiff's municipal liability claim against the City of New York should be dismissed because he fails to
allege an underlying constitutional violation and he does not plead an unconstitutional policy or a widespread practice under
the standard in Monell v. Dep't of Soc. Servs. of City of New York, 436 U.S. 658 (1978).
I. 42 U.S.C. § 1983
Plaintiff's allegations concerning Defendants’ purported misconduct are best construed as claims of deliberate indifference to
his safety, in violation of the Fourteenth Amendment. Plaintiff invokes the Eighth Amendment, Opp. at 1, but because he was a
pretrial detainee during the time period at issue, the claims are covered by the Fourteenth Amendment. See Darnell v. Pineiro,
849 F.3d 17, 29 (2d Cir. 2017) (“A pretrial detainee's claims of unconstitutional conditions of confinement are governed by
the Due Process Clause of the Fourteenth Amendment, rather than the Cruel and Unusual Punishments Clause of the Eight
Amendment.”).
To establish a due process violation of the Fourteenth Amendment to the U.S. Constitution under § 1983, an inmate must show
that a government official made a deliberate decision to deprive him of his life, liberty, or property. See Jabbar v. Fischer, 683
F.3d 54, 57 (2d Cir. 2012) (relying on Daniels, 474 U.S. at 331 (1986)). To do so, a pretrial detainee must show that he faced an
objectively serious risk of harm and that “the defendant-official acted intentionally to impose the alleged condition, or recklessly
failed to act with reasonable care to mitigate the risk that the condition posed to the pretrial detainee even though the defendant
official knew, or should have known, that the condition posed an excessive risk to health or safety.” Darnell, 849 F.3d at 35.
*4 The negligence of a correction official is not a basis for a claim of a federal constitutional deprivation under § 1983. See
Daniels v. Williams, 474 U.S. 327, 335-36 (1986); Davidson v. Cannon, 474 U.S. 344, 348 (1986). A commonplace vehicle
accident may be actionable as a tort claim for negligence under state law, see Carrasquillo v. City of New York, 324 F. Supp.
2d 428, 436 (S.D.N.Y. 2004), but such an event is not ordinarily the basis for a claim of a federal constitutional deprivation.
See Poe v. Leonard, 282 F.3d 123, 145 (2d Cir. 2001) (“[M]ere negligence is insufficient as a matter of law to state a claim
under section 1983.”); Carrasquillo, 324 F. Supp. 2d at 436 (“Auto accidents do not, in and of themselves, give rise to federal
causes of action.”). Generally, “[a]llegations of a public official driving too fast ... are grounded in negligence”, and thus not
actionable under Section 1983. Carrasquillo, 324 F. Supp. 2d at 436.
“[T]he failure to provide an inmate with a seatbelt does not, standing alone, give rise to a constitutional claim.” Jabbar, 683
F.3d at 57-58. “[A]n in-custody plaintiff injured during transport may, however, state a deliberate-indifference claim if he or
she alleges facts in addition to the absence of seatbelts and reckless driving, that, taken as a whole, suggest that the plaintiff was
exposed to conditions posing an unreasonable risk of serious harm, and that the defendants were aware of those conditions.”
Chapman v. Doe (One), No. 9:19-CV-1257 (GTS)(CFH), 2019 WL 6493971, at *4 (N.D.N.Y. Dec. 3, 2019) (internal quotations
omitted).
Here, Plaintiff's allegations that the correction officer driving the transport bus accelerated too much when entering the bus depot
of the MDC sound in negligence. See generally ECF No. 7 at 3-5. Plaintiff fails to plead any facts in the SAC suggesting that
any defendant “acted intentionally to impose the alleged condition, or recklessly failed to act with reasonable care to mitigate
the risk that the condition posed to the pretrial detainee even though the defendant-official knew, or should have known, that
the condition posed an excessive risk to health or safety.” Darnell, 849 F.3d at 35.
In his opposition, Plaintiff states that this bus accident occurred because Correction Officer Surpris was “hurriedly, and
unattentively executing his duties because of pressure to fulfill a job quota by a certain time or under the influence (i.e. of
alcohol or, narcotics or both are serious possibility's).” See Opp. at 2. The is the first time Plaintiff has alleged that Officer
Surpris was driving under the influence. This allegation has not been raised in any of the Plaintiff's complaints, including in the
SAC, which is the operative complaint in this matter. Although the Court must construe Plaintiff's submissions liberally, the
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“liberality with which courts examine pro se pleadings does not require a court to ‘accept as true allegations that conflict with a
plaintiff's prior allegations.’ ” Vaughn v. Strickland, No. 12 CIV. 2696 JPO, 2013 WL 3481413, at *6 (S.D.N.Y. July 11, 2013)
(quoting Green v. Niles, No. 11 Civ. 1349(PAE), 2012 WL 987473, at *4–5 (S.D.N.Y. Mar. 23, 2012)). Therefore, the Court
will not consider this new allegation raised for the first time in the Opposition.
Plaintiff's allegations thus fail to plausibly allege a claim under Section 1983, and the Court dismisses Plaintiff's Section 1983
claim asserting deliberate indifference to a serious risk of harm to him against the individual Defendants.
Municipalities can be sued under Section 1983. Monell, 436 U.S. at 690. However, “[a] municipality cannot be liable for acts
by its employees which are not constitutional violations.” Martinez v. City of New York, 340 F. App'x 700, 702 (2d Cir. 2009).
Therefore, the Court also dismisses Plaintiff's Section 1983 claim against the City of New York because he has failed to state
a claim for any purported constitutional violation.
II. Negligence
*5 In addition to his claim arising under Section 1983, the Court construes that Plaintiff asserts a cause of action against all
Defendants arising under New York state law for negligence. Defendants argue that Plaintiff failed to serve a notice of claim as
required prior to commencing an action in tort against the City of New York or an employee. See N.Y. General Municipal Law
§§ 50-i(1), 50e. Defendants also argue that Plaintiff's negligence claim is time-barred.
“The elements of a negligence claim under New York law are: “(i) a duty owed to the plaintiff by the defendant; (ii) breach
of that duty; and (iii) injury substantially caused by that breach.” Pasternack v. Lab'y Corp. of Am. Holdings, 807 F.3d 14, 19
(2d Cir.), as amended (Nov. 23, 2015) (internal quotation marks omitted). “New York law ‘provides that no tort action shall be
prosecuted or maintained against a municipality or any of its officers, agents, or employees unless: (1) a notice of claim has
been served against the [municipality]; (2) the [municipality] has refused adjustment or payment of the claim; and (3) the action
is commenced within one year and ninety days after the event upon which the claim is based occurred.’ ” In re Dayton, 786
F. Supp. 2d 809, 823 (S.D.N.Y. 2011) (quoting Gibson v. Comm'r of Mental Health, No. 04–CV–4350, 2006 WL 1234971, at
*5 (S.D.N.Y. May 8, 2006)); N.Y. Gen. Mun. Law § 50–i. The plaintiff must plead in the complaint that they served the notice
of claim. Chepilko v. City of New York, No. 18CV02195ALCSDA, 2022 WL 4554961, at *3 (S.D.N.Y. Sept. 29, 2022) (citing
Hardy v. New York City Health & Hosp. Corp., 164 F.3d 789, 793 (2d Cir. 1999)). Federal courts do not have jurisdiction to hear
state law claims brought by plaintiffs who have failed to comply with the notice of claim requirement, nor can a federal court
grant a plaintiff permission to file a late notice of claim. Dingle v. City of New York, 728 F. Supp. 2d 332, 348–49 (S.D.N.Y. 2010).
Additionally, under N.Y. General Municipal Law § 50-i, an action against “a city, county, town, village, fire district or school
district for personal injury ... sustained by reason of the negligence or wrongful act of ... any officer, agent or employee thereof ...
shall be commenced within one year and ninety days.” N.Y. General Municipal Law § 50-i. However, just as Plaintiff's claim is
governed by New York statute of limitations, New York tolling statutes also similarly apply. See Kay v. Lavry Eng'g, Inc., No.
1:19-CV-05059 (ALC), 2020 WL 2415661, at *2 (S.D.N.Y. May 12, 2020), aff'd, 834 F. App'x 655 (2d Cir. 2021).
Here, the statute of limitations applicable to the Plaintiff's negligence claim is one year and ninety days. N.Y. General Municipal
Law § 50-i. Plaintiff's negligence claim arises from the date of his alleged injury, which is on or about March 23, 2018. Fisher
v. JPMorgan Chase Bank, N.A., 740 F. App'x 745, 746 (2d Cir. 2018) (“under New York law, negligence claims accrue when an
injury is sustained”). For Plaintiff's state law claim to be timely, he must have commenced the action on June 21, 2019. Plaintiff
filed his complaint on June 11, 2020. ECF No. 1. Because Plaintiff's state negligence claim is time-barred, and the Plaintiff has
not put forth any facts that would justify tolling the statute of limitations, Plaintiff's negligence claim is dismissed as untimely.
III. Leave to Amend
Rule 15 of the Federal Rules of Civil Procedure instructs courts to “freely give leave” to replead “when justice so requires.” Fed.
R. Civ. P. 15(a)(2); see also Foman v. Davis, 371 U.S. 178 (1962). The “usual practice” in this Circuit upon granting a motion to
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dismiss is to permit amendment of the complaint. Special Situations Fund III QP, L.P. v. Deloitte Touche Tohmatsu CPA, Ltd.,
33 F. Supp. 3d 401, 446–47 (S.D.N.Y. 2014) (citing Ronzani v. Sanofi S.A., 899 F.2d 195, 198 (2d Cir. 1990)). Generally, “[a]
pro se complaint ‘should not [be] dismiss[ed] 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.” Chavis v. Chappius, 618 F.3d 162, 170 (2d Cir. 2010)
(citing Branum v. Clark, 927 F.2d 698, 705 (2d Cir. 1991)). However, the Second Circuit has also recognized that “[w]here a
proposed amendment would be futile, leave to amend need not be given.” Hill v. Curcione, 657 F.3d 116, 123 (2d Cir. 2011)
(citing Advanced Magnetics, Inc. v. Bayfront Partners, Inc., 106 F.3d 11, 18 (2d Cir. 1997)).
*6 In his opposition to Defendants’ motion, Plaintiff argues that he did file a timely notice of claim as required by N.Y. Gen.
Mun. Law § 50-i. Opp. at 1-2. Courts in this circuit have previously explained that plaintiffs should be allowed to amend their
complaint where they complied with notice of claim requirement but simply failed to plead this in their complaint. See Scott
v. City of Mount Vernon, No. 14-CV-4441 (KMK), 2017 WL 1194490, at *25 (S.D.N.Y. Mar. 30, 2017); Whitfield v. City of
Newburgh, No. 08-CV-8516, 2015 WL 9275695, at *31-*32 (S.D.N.Y. Dec. 17, 2015); Christian v. Town of Riga, 649 F. Supp.
2d 84, 92 n.7 (W.D.N.Y. 2009) (“[I]f plaintiff did comply with the notice requirements but failed to plead such compliance in
his Amended Complaint, plaintiff is not precluded from filing an amended complaint setting forth that he complied §§ 50-i and
50-e.”). Additionally, as explained above, Plaintiff has not put forth any facts that would justify tolling the statute of limitations.
Therefore, Plaintiff is granted leave to amend. His amended complaint should include factual information relevant to whether
he filed a notice of claim and any facts relevant to any arguments for tolling the statute of limitations.
CONCLUSION
For the foregoing reasons, Defendants’ motion to dismiss is GRANTED. The Clerk of the Court is respectfully directed to
terminate ECF No. 91. Plaintiff shall file his amended complaint on or by May 1, 2023.
SO ORDERED.
All Citations
Not Reported in Fed. Supp., 2023 WL 2746124
Footnotes
1 The Manhattan Detention Complex is a facility run by the NY Department of Corrections, primarily housing people
awaiting trial for state or local crimes in Manhattan. It is not the Metropolitan Detention Center, a federal facility in
Brooklyn.
2 The Defendants have not moved on behalf of Defendant Surpris because he has passed away. See ECF Nos. 81, 84.
Joseph Grima is named in the SAC, but he has not been served and is therefore not a party to this suit.
3 The Prison Litigation Reform Act requires that federal courts screen complaints brought by prisoners who seek relief
against a governmental entity or an officer or employee of a governmental entity. See 28 U.S.C. § 1915A(a).
4 Although the SAC refers to the date of the alleged incident as March 23, 2018, Defendants assert that, upon information
and belief, the correct date of the incident is March 21, 2018.
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KeyCite Yellow Flag
Distinguished by Colds v. Smyth, S.D.N.Y., September 26, 2023
2023 WL 2632204
Only the Westlaw citation is currently available.
United States District Court, S.D. New York.
Eric MCCORMICK, Plaintiff,
v.
The COUNTY OF WESTCHESTER, et al., Defendants.
No. 19-CV-2916 (KMK)
|
Signed March 24, 2023
Attorneys and Law Firms
Vik Pawar, Esq., New York, NY, Counsel for Plaintiff.
Giacomo Gaspare Micciche, Esq., Irma Wheatfield Cosgriff, Esq., Westchester County Attorney's Office, White Plains, NY,
Counsel for Defendants.
Paul Andrew Sanders, Esq., Barclay Damon LLP, Rochester, NY, Counsel for Defendants.
OPINION & ORDER
KENNETH M. KARAS, United States District Judge:
*1 Eric McCormick (“Plaintiff”) brings this Action, pursuant to 42 U.S.C. § 1983 (“§ 1983”) and New York state law, against
the County of Westchester (“County”), Sergeant Ruben Torres (“Torres”), Sergeant Hector Lopez (“Lopez”), C.O. Matthew
Waal-Rivera (“Waal”), Sergeant Kevin Grant (“Grant”), ESU Sergeant Michael Bourhill (“Bourhill”), C.O. Salvatore Ficarrotta
(“Ficarrotta”), C.O. Troy Worrell (“Worrell”), Captain Christopher Roberts (“Roberts”), Sergeant Michael Carozza (“Carozza”),
Jason Planksy (“Planksy”), Assistant Warden Karl Vollmer (“Vollmer”), Captain Patti Bhola (“Bhola”), John Doe 1, and Jane
Doe 1 (altogether, “Defendants”), alleging that Defendants failed to place him in protective custody pursuant to County policy
or custom. (See generally Third Am. Compl. (“TAC”) (Dkt. No. 118).) Before the Court is Defendants' Motion To Dismiss the
claims brought in the Third Amended Complaint (the “Motion”) pursuant to Federal Rule of Civil Procedure 12(b)(6). (See
Decl. in Support of Mot. (Dkt. No. 126).)
For the reasons stated herein, the Motion is granted in part and denied in part.
I. Background
A. Factual Background
1. Plaintiff's Particular Incidents
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Plaintiff Eric McCormick was incarcerated in Westchester County Jail (“Jail”) in Valhalla, New York. (TAC ¶ 12.) While
incarcerated, Plaintiff encountered his gang member codefendants in December 2017 at a courthouse while participating in a
proffer session as a cooperating witness. (Id. ¶ 14.) When Plaintiff returned to Jail, the “gang leader and other members of the
gang and associates” (who Plaintiff then defines as “inmates”) were “visibly upset” with Plaintiff and communicated to him
“that they were unhappy [that] [P]laintiff was co-operating.” (Id. ¶ 15.) Plaintiff began receiving threats from gang member
inmates; a list of 12 such threats is attached to the Third Amended Complaint. (TAC Ex. 1a.) Such threats include being told
that he “was going to be killed” and “stomp[ed]” out of Jail. (Id.)
Plaintiff alleges that “[s]ince the first encounter in December 2017 until [P]laintiff was moved to protective custody in October
2018, Plaintiff informed the [D]efendants herein that he was targeted by” Bloods gang members. (Id. ¶ 33.) On approximately
December 18, 2017 and again “in the ensuing weeks,” Plaintiff informed Lopez, Waal, and Carozza that “he was concerned
about his safety due to the threats of assault by the inmates at the Jail.” (Id. ¶ 18–19.) 1 Lopez, Waal, and Carozza allegedly
“assured [P]laintiff that his complaints would be taken seriously, and [that] he would be safe and protected.” (Id.) Plaintiff
also met with Torres on multiple occasions, allegedly giving him “detailed information about the nature of the assaults and
threats from December 2017 until March 2018.” (Id. ¶ 17.) Torres reportedly informed Plaintiff that he would “undertake an
investigation” and “assured [P]laintiff that his complaints would be taken seriously, and [that] he would be safe and protected.”
(Id.) Plaintiff also informed Roberts “about these threats and his concern for [his] safety” and was assured by Roberts that the
threats were being taken seriously and that Plaintiff would be protected. (Id. ¶ 32.)
*2 At some point after the December encounter at the courthouse, Plaintiff was “assaulted and threatened by the inmates.” (Id.
¶ 20.) On approximately March 1, 2018, Plaintiff was verbally and physically assaulted. (Id.) As Plaintiff was being prepared to
go to the emergency room, he informed Bourhill “about these threats.” (Id. ¶ 22.) Plaintiff also informed Ficarrotta and Worrell,
who transported Plaintiff to the emergency room in an ambulance, “that he was assaulted for being a ‘snitch’ and that he feared
for his safety.” (Id. ¶¶ 23–24.) Plaintiff again allegedly received reassurances from these Defendants that the threats were being
taken seriously and that he would be protected. (Id. ¶¶ 22–23.) When Plaintiff arrived at the emergency room, he informed two
County medical employees (John Doe 1 and Jane Doe 1) that “he was injured because of an assault by inmates and that he
feared for his safety,” to which the “two employees gave [P]laintiff similar assurances about the threats and his safety and were
obligated to convey or report them to the proper personnel.” (Id. ¶ 25.)
After the March assault, Plaintiff informed Grant “about the continued threats, assaults and the need to be protected” and was
assured by Grant that his threats were being taken seriously and that he would be protected. (Id. ¶ 26.)
On approximately April 30, 2018, Plaintiff was again assaulted by the “inmates” and sustained a broken jaw. (Id. ¶¶ 27–29.)
He was once again taken for emergency treatment. (Id. ¶ 28.)
Plaintiff additionally filed “various grievances about the threats to his safety, [and] need to be protected” to Vollmer, which were
dismissed. (Id. ¶ 30.) Plaintiff “appealed the decision to the extent the procedures were available to him[,] but [D]efendant's
inactions rendered all his appeals and his desire to appeal meaningless.” (Id. ¶ 31.)
Plaintiff was moved to protective custody in October 2018. (Id. ¶ 33.)
2. County of Westchester Practices
Plaintiff's Complaint includes a number of allegations against the County of Westchester. First, Plaintiff alleges that the County
“does not have a policy when it comes to placing individuals such as [P]laintiff who are threatened by inmates into protective
custody,” and that to the extent “the County has a policy that is ineffective, [ ] the widespread custom renders such policy a
nullity.” (Id. ¶ 36.) Plaintiff claims the County is aware of the assaults and threats Plaintiff and other individuals receive and
has “failed to implement measures to prevent such harm.” (Id.)
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Second, Plaintiff alleges that the County has “failed to train its employees when they receive complaints about individuals such
as [P]laintiff who are in danger” from other inmates. (Id.) Plaintiff asserts that had “the County implemented a training program
then the individual [D]efendants that are named in this complaint would know how to act when presented with a situation
such as [P]laintiff.” (Id.) Such a training program would include training regarding “investigation of threats,” “counsel[ing]
individuals such as [P]laintiff, ensur[ing] that these threatened individuals remain protected, address[ing] the threats received
to incarcerated individuals, [and] ensur[ing] that the threatened individuals and the individuals who are the ones threatening are
kept away from each other.” (Id.) Plaintiff alleges that the County is aware that its employees would “encounter situations as
outlined in this complaint” and the need for “effective policy and or training for its employees” but “failed to take any action ...
amount[ing] to deliberate indifference.” (Id. ¶¶ 38, 40.)
Third, Plaintiff claims that when individuals such as Plaintiff file grievances about their safety and medical needs, Vollmer
“simply dismisses those grievances.” (Id. ¶ 36.) Plaintiff alleges that Vollmer is responsible for implementing grievance policies
at the Jail and that “a majority of the grievances generated at the County Jail are dismissed without any proactive measures
taken.” (Id.)
Finally, Plaintiff alleges that that the County has inadequate staffing to ensure that inmates who are threatened are separated
from inmates who threaten to harm them. (Id.)
B. Procedural History
*3 Plaintiff filed his initial complaint on April 2, 2019. (Dkt. No. 1.) Plaintiff filed the Amended Complaint on September 24,
2020. (Dkt. No. 69.) Plaintiff filed the Second Amended Complaint on December 23, 2020. (Dkt. No. 91.) Plaintiff filed the
Third Amended Complaint on December 21, 2021. (Dkt. No. 118.)
Defendants filed the instant Motion on February 17, 2022. (Mem. of Law in Supp. of Mot. (“Defs.' Mem.”) (Dkt. No. 127).)
Plaintiff filed his Opposition on March 29, 2022. (Mem. of Law in Opp. of Mot. (“Pl.'s Mem.”) (Dkt. No. 130).) Finally,
Defendants filed a Reply on April 18, 2022. (Reply Mem. of Law (“Defs.' Reply Mem.”) (Dkt. No. 131).)
II. Discussion
A. Standard of Review
The Supreme Court has held that while a complaint “does not need detailed factual allegations” to survive a motion to dismiss, “a
plaintiff's obligation to provide the grounds of his entitlement to relief requires more than labels and conclusions, and a formulaic
recitation of the elements of a cause of action will not do.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007) (alteration
and quotation marks omitted). Indeed, Rule 8 of the Federal Rules of Civil Procedure “demands more than an unadorned,
the-defendant-unlawfully-harmed-me accusation.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). “Nor does a complaint suffice
if it tenders naked assertions devoid of further factual enhancement.” Id. (alteration and quotation marks omitted). Rather, a
complaint's “[f]actual allegations must be enough to raise a right to relief above the speculative level.” Twombly, 550 U.S. at 555.
“[O]nce a claim has been stated adequately, it may be supported by showing any set of facts consistent with the allegations in
the complaint,” id. at 563, and a plaintiff must allege “only enough facts to state a claim to relief that is plausible on its face,” id.
at 570. However, if a plaintiff has not “nudged [his] claim[ ] across the line from conceivable to plausible, the[ ] complaint must
be dismissed.” Id.; see also Iqbal, 556 U.S. at 679 (“Determining whether a complaint states a plausible claim for relief will ...
be a context-specific task that requires the reviewing court to draw on its judicial experience and common sense. But where
the well-pleaded facts do not permit the court to infer more than the mere possibility of misconduct, the complaint has alleged
—but it has not ‘show[n]’—‘that the pleader is entitled to relief.’ ” (second alteration in original) (citation omitted) (quoting
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Fed. R. Civ. P. 8(a)(2))); id. at 678–79 (“Rule 8 marks a notable and generous departure from the hypertechnical, code-pleading
regime of a prior era, but it does not unlock the doors of discovery for a plaintiff armed with nothing more than conclusions.”).
“[W]hen ruling on a defendant's motion to dismiss, a judge must accept as true all of the factual allegations contained in the
complaint,” Erickson v. Pardus, 551 U.S. 89, 94 (2007) (per curiam), and “draw[ ] all reasonable inferences in favor of the
plaintiff,” Daniel v. T&M Prot. Res., Inc., 992 F. Supp. 2d 302, 304 n.1 (S.D.N.Y. 2014) (citing Koch v. Christie's Int'l PLC,
699 F.3d 141, 145 (2d Cir. 2012)). Additionally, “[i]n adjudicating a Rule 12(b)(6) motion, a district court must confine its
consideration to facts stated on the face of the complaint, in documents appended to the complaint or incorporated in the
complaint by reference, and to matters of which judicial notice may be taken.” Leonard F. v. Isr. Disc. Bank of N.Y., 199 F.3d 99,
107 (2d Cir. 1999) (quotation marks omitted); see also Wang v. Palmisano, 157 F. Supp. 3d 306, 317 (S.D.N.Y. 2016) (same).
B. Analysis
*4 Defendants contend that Plaintiff fails to plead sufficient facts to plausibly allege conditions of confinement or failure
to protect claims against any Defendant and that therefore, Plaintiff's Monell claim also fails. (See generally Defs.' Mem.)
Defendants further contend that Plaintiff's Monell claim is deficient in its own right because Plaintiff fails to plausibly allege
a widespread custom or failure to train. (Defs.' Mem. 8–10; Defs.' Reply Mem. 1–7.) Plaintiff rebuts Defendants' position by
arguing that the multiple assaults and threats he experienced suffices to plead the underlying constitutional violations and Monell
claim, and alternatively that here, a single incident suffices to plausibly allege Monell. (See generally Pl.'s Mem.) 2
Defendants additionally argue that Plaintiff's state claims of intentional and negligent infliction of emotional distress; New York
common law negligence; violations of the New York State Constitution and Human and Civil Rights Law; negligent screening,
training, hiring, and retention; negligent training and supervision; and respondeat superior liability, should be dismissed because
Plaintiff's federal claims are deficient as a matter of law. (Defs.' Mem. 19.) Defendants also argue that each state law claim is
deficient on the merits. (Id. at 19–22.) Plaintiff has not responded to any of Defendants' arguments regarding the deficiencies
in his state law claims. (Pl.'s Mem. 2.)
1. Deliberate Indifference Claims
Because Plaintiff was a pre-trial detainee at the relevant time, Plaintiff's claim falls under “the Due Process Clause of the
Fourteenth Amendment, rather than the Cruel and Unusual Punishments Clause of the Eight[h] Amendment.” Darnell v.
Pineiro, 849 F.3d 17, 29 (2d Cir. 2017) (citation omitted). To state a conditions of confinement, failure to protect, or deliberate
indifference to medical needs claim, an inmate must plausibly allege (1) “that he suffered a sufficiently serious constitutional
deprivation[,]” and (2) “that the defendant acted with deliberate indifference.” Feliciano v. Anderson, No. 15-CV-4106, 2017
WL 1189747, at *8 (S.D.N.Y. Mar. 30, 2017); see also Darnell, 849 F.3d at 33 n.9 (“[T]he Court's interpretation of deliberate
indifference applied to any pretrial detainee claim for deliberate indifference to serious threat to ... health or safety—such as
from unconstitutional conditions of confinement, or the failure-to-protect—because deliberate indifference means the same
thing for each type of claim under the Fourteenth Amendment.” (alteration in original) (quotation marks and citation omitted)).
Under the first “objective” element, an inmate must show that the “the alleged deprivation” is “sufficiently serious,” Spavone
v. New York State Dep't of Corr. Servs., 719 F.3d 127, 138 (2d Cir. 2013) (citation and quotation marks omitted), that is, the
inmate must show that he was “incarcerated under conditions posing a substantial risk of serious harm.” Blandon v. Capra,
No. 17-CV-65, 2017 WL 5624276, at *7 (S.D.N.Y. Nov. 20, 2017) (quotation marks omitted) (quoting Hayes v. N.Y.C. Dep't
of Corr., 84 F.3d 614, 620 (2d Cir. 1996)).
The second element “applies differently to claims under the Eighth Amendment and the Fourteenth Amendment.” Howard v.
Brown, No. 15-CV-9930, 2018 WL 3611986, at *4 (S.D.N.Y. July 26, 2018) (citing Darnell, 849 F.3d at 34–35). Although the
Eighth Amendment imposes a subjective standard—that the prison official “know[ ] of and disregard[ ] an excessive risk to
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inmate health or safety,” Darnell, 849 F.3d at 32 (citation and quotation marks omitted)—the Fourteenth Amendment, applicable
here, imposes an objective standard. That is, the prison official need only “recklessly fail[ ] to act with reasonable care to mitigate
the risk that the condition posed to the pretrial detainee even though the defendant-official knew, or should have known, that
the condition posed an excessive risk to health or safety.” Id. at 35. However, “[d]espite the slightly lower standard” applicable
to pretrial detainees, “which is akin to objective recklessness, any § 1983 claim or a violation of due process requires proof of a
mens rea greater than mere negligence.” Miller v. Cnty. of Nassau, No. 16-CV-5843, 2018 WL 1597401, at *3 (E.D.N.Y. Mar.
31, 2018) (citations, emphases, and quotation marks omitted) (quoting, inter alia, Darnell, 849 F.3d at 36).
*5 Plaintiff invokes two deliberate indifference claims: unconstitutional conditions of confinement and failure to protect.
“Failure-to-protect claims are treated as challenges to conditions of confinement.” Ruiz v. Westchester Cnty., No. 18-CV-7007,
2020 WL 4340788, at *5 (S.D.N.Y. July 28, 2020) (citation and quotation marks omitted). Plaintiff does not allege facts in
the Third Amended Complaint that would give rise to a conditions of confinement claim separate and apart from a failure to
protect claim. In particular, Plaintiff alleges that “Defendants knew that [P]laintiff was supposed to be in protective custody.
However, instead of taking care of [P]laintiff's well-being, [D]efendants confined him to an area where he would be subjected to
another assault.” (TAC ¶¶ 66–67.) Furthermore, in Plaintiff's Opposition, he groups the conditions of confinement and failure to
protect claims in the same section without differentiating between the two. (Pl.'s Mem. 12.) Because failure to protect claims are
treated as challenges to conditions of confinement and Plaintiff has not raised additional facts that would give rise to a separate
conditions of confinement claim, this Court analyzes them together. 3
The Constitution requires that prison officials “take reasonable measures to guarantee the safety of inmates in their custody.”
Hayes, 84 F.3d at 620; see also Farmer v. Brennan, 511 U.S. 825, 832 (1994) (same). Specifically, “[p]rison officials have a
duty to protect prisoners from violence at the hands of other inmates since being violently assaulted in prison is ‘simply not part
of the penalty that criminal offenders pay for their offenses against society.’ ” Lee v. Artuz, No. 96-CV-8604, 2000 WL 231083,
at *4 (S.D.N.Y. Feb. 29, 2000) (quoting Farmer, 511 U.S. at 834). However, “not ... every injury suffered by one prisoner at
the hands of another ... translates into constitutional liability for prison officials responsible for the victim's safety.” Farmer,
511 U.S. at 834. Instead, “the prisoner must allege actions or omissions sufficient to demonstrate deliberate indifference; mere
negligence will not suffice.” Hayes, 84 F.3d at 620.
a. Substantial Risk of Serious Harm
For a failure to protect claim in the context of violence between incarcerated individuals, “courts may find a substantial risk of
serious harm ‘where there is evidence of a previous altercation between a plaintiff and an attacker, coupled with a complaint by
[the] plaintiff regarding the altercation or a request by [the] plaintiff to be separated from the attacker.’ ” Walker v. George, No.
21-CV-6070, 2022 WL 2290634, at *5 (S.D.N.Y. June 24, 2022) (alterations in original) (citing Rennalls v. Alfredo, No. 12-
CV-5300, 2015 WL 5730332, at *4 (S.D.N.Y. Sept. 30, 2015)). Factors for determining substantial risks of serious harm include
“the nature of the prison population with whom [the plaintiff] was incarcerated,” and “whether there was specific information
ahead of time suggesting that the plaintiff's safety was in jeopardy.” Vickers-Pearson v. City of N.Y., No. 18-CV-8610, 2020
WL 5732028, at *5 (S.D.N.Y. Sept. 24, 2020) (citation and quotation marks omitted).
*6 Plaintiff has plausibly alleged there was a previous altercation between him and gang member inmates—who were
threatening him because he was perceived to be a cooperator—and that he complained about the altercation. Specifically,
Plaintiff alleges that he was incarcerated with gang members who became aware that he was cooperating with the prosecution
in a case against fellow gang members. (TAC ¶¶ 14–15.) Plaintiff alleges he was repeatedly threatened over the span of multiple
months—for instance, Plaintiff was told by gang member inmates that he “was going to be killed” and “stomp[ed]” out of
jail. (Id. at Ex. 1a.) Plaintiff was assaulted by gang member inmates twice before his jaw was broken in a third assault by
gang member inmates. (Id. ¶¶ 20–21, 25–27.) 4 And, Plaintiff alleges that he complained about the second assault, informing
Ficarrotta and Worrell that he was assaulted because he was a “snitch” and that he “feared for his safety.” (Id. ¶¶ 23–24.)
Plaintiff has thus sufficiently alleged that he was incarcerated under conditions that posed an objective substantial risk of serious
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harm. See Robinson v. Spanno, No. 20-CV-642, 2021 WL 1109053, at *4 (S.D.N.Y. Mar. 23, 2021) (finding that the objective
prong was sufficiently alleged when a plaintiff was subject to multiple threats and physical assaults, communicated to a prison
official that another attack would occur, and was then attacked by the same group that threatened violence); Scott v. Westchester
Cnty., 434 F. Supp. 3d 188, 199 (S.D.N.Y. 2020) (finding the objective prong was sufficiently alleged when a plaintiff was
previously attacked by a gang member, informed an officer that members of the gang were trying to kill him, and was then
subsequently attacked by gang members); Hill v. Annucci, No. 18-CV-1203, 2019 WL 8192266, at *6–7 (N.D.N.Y. Nov. 25,
2019) (“Plaintiff's complaint alleges a series of assaults all related to prison gang members and his reputation as an informant....
[T]he [c]ourt finds [the] [p]laintiff has adequately pled the objective prong ....”).
b. Deliberate Indifference
In the Eighth Amendment context, which requires subjective awareness of a risk, courts have found that the subjective prong
was satisfied where “the defendants knew of a prior altercation between the plaintiff and his attacker, or of threats that had been
made against the plaintiff.” Dietrich v. Cnty. of Orange, No. 19-CV-10485, 2020 WL 5209816, at *4 (S.D.N.Y. Sept. 1, 2020)
(citation and quotation marks omitted) (finding that the plaintiff failed to plausibly allege the second prong when he “provide[d]
no specifics that might provide a factual basis” for the risk to his safety, including any prior instances of violence); see also
Parris v. N.Y. State Dep't Corr. Servs., 947 F. Supp. 2d 354, 363 (S.D.N.Y. 2013) (finding that the plaintiff failed to plausibly
allege the second prong when he did not “allege that the defendants knew of any threats made against the plaintiff or that the
plaintiff had been involved in any prior altercations”); Fernandez v. N.Y.C. Dep't of Corr., No. 08-CV-4294, 2010 WL 1222017,
at *4 (S.D.N.Y. Mar. 29, 2010) (finding that the plaintiff failed to plausibly alleged the second prong, because he did not allege
he “and [an] inmate were involved in a prior altercation, that [the inmate] had previously threatened him, or that there was any
other reason for officers at DOC to be on notice that there was a risk of altercation between [the] [p]laintiff and [the] inmate”).
Some courts in the Second Circuit have applied this framework in the Fourteenth Amendment context, requiring plaintiffs to
allege that defendants either knew, or should have known of a “history of similar assaults” or “of any specific or direct threat.”
Vazquez v. City of N.Y., No. 21-CV-1573, 2022 WL 2704763, at *11 (S.D.N.Y. June 17, 2022), report and recommendation
adopted, 2022 WL 17370156 (S.D.N.Y. Dec. 2, 2022); see also Leath v. Cnty. of Orange, No. 18-CV-7318, 2020 WL 4016530,
at *3 (S.D.N.Y. July 15, 2020) (finding that because the plaintiff failed to “allege that there were any prior altercations between
[the] [p]laintiff and [an inmate], or that there were any specific threats made by [the inmate] to [the] [p]laintiff” the failure to
protect claim failed under Fourteenth Amendment); Charles v. Rockland Cnty. Off. of the Sheriff, No. 16-CV-166, 2019 WL
1299804, at *3 (S.D.N.Y. Mar. 21, 2019) (“In the Eighth Amendment context, which requires subjective awareness of a risk,
courts have routinely denied failure-to-protect claims when a defendant did not know an inmate faced an attack by another
inmate. The same rationale can apply to failure-to-protect claims under the Fourteenth Amendment.”) (citations and quotation
marks omitted) (quoting Parris, 94 F. Supp. 2d at 363).
*7 Plaintiff alleges that Ficarrotta and Worrell transported him to the emergency room after the March assault and that he
informed them that he was assaulted because he was a “snitch” and that he “feared for his safety.” (TAC ¶¶ 23–24.) Therefore,
Ficarrotta and Worrell allegedly knew of the alleged assault in its immediate aftermath, where, drawing all inferences in favor
of Plaintiff, he presumably sustained some form of injury that required his transportation to the emergency room. (Id.) This
Court notes that in failure-to-protect claims arising from prison gang violence, the deliberate indifference prong is often met
when a plaintiff identifies his attacker(s) by gang affiliation to the defendants. See Scott, 434 F. Supp. 3d at 199 (finding the
deliberate indifference standard met when a defendant was informed by an inmate that he had been attacked by a member of
the Goonies, that the “Goonies were trying to kill him” and was then assaulted again by two members of the Goonies); Hill,
2019 WL 8192266, at *8 (finding deliberate indifference prong met when a defendant knew of an “attack where [the plaintiff]
was struck in the back of his head by a ‘known gang member’ ” and that the plaintiff was “being extorted by gang members”).
It is unclear whether Plaintiff alleges he told Ficarrotta and Worrell that he had been attacked by a specific gang or who he had
been attacked by, as the Third Amended Complaint only states broadly that “[s]ince the first encounter in December 2017 until
[P]laintiff was moved to protective custody in October 2018, Plaintiff informed the [D]efendants herein that he was targeted
by ... bloods gang member[s].” (TAC ¶ 33.) While it is uncertain whether Plaintiff told Defendants Ficarrotta and Worrell that
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he was attacked by gang member inmates in the March assault, “a prisoner's identification of his enemies ... is not, necessarily,
outcome determinative”— accordingly “the issue is not whether [a plaintiff] identified his enemies by name to prison officials,
but whether they were aware of a substantial risk of harm[.]” Hayes, 84 F.3d at 621; see also Farmer, 511 U.S. at 843 (“Nor
may a prison official escape liability for deliberate indifference by showing that, while he was aware of an obvious, substantial
risk to inmate safety, he did not know that the complainant was especially likely to be assaulted by the specific prisoner who
eventually committed the assault.”).
Furthermore, courts in the Second Circuit have recognized that being labeled a snitch in the prison context poses a threat to an
inmate's safety. See, e.g., Hill v. Chapdelaine, No. 16-CV-1656, 2017 WL 62511, at *5 (D. Conn. Jan. 5, 2017) (“Identifying an
inmate as a snitch poses a threat to the inmate's health and safety.”); Hamilton v. Fischer, No. 12–CV–6449, 2013 WL 3784153,
at *15 (W.D.N.Y. July 18, 2013) (“Courts have recognized that being labeled a snitch in the prison environment can indeed pose
a threat to an inmate's health and safety in violation of the Eighth Amendment ....” (quotation marks and citations omitted));
Allah v. Juchnewioz, No. 93-CV-8813, 1999 WL 562100, at *3 (S.D.N.Y. July 30, 1999) (“Many courts have recognized ...
in the context of Eighth Amendment analysis, the dangers a prisoner faces from his fellow inmates when labeled a snitch or
informant.”). Given the unique danger that label holds in the prison context, Plaintiff has plausibly alleged that Ficarrotta and
Worrell acted with deliberate indifference when Plaintiff informed them that he had been assaulted for being a snitch, and they
allegedly failed to place him in protective custody. See Ford v. Campbell, No. 21-CV-89, 2021 WL 1601148, at *4–5 (D. Conn.
Apr. 23, 2021) (holding both objective and subjective elements of deliberate indifference sufficiently alleged when officers failed
to place an inmate in protective custody or in a single cell “despite knowledge of his safety risk after being labeled a snitch”).
However, Plaintiff fails to plausibly allege that Bourhill acted with deliberate indifference. Bourhill allegedly was present with
Plaintiff before the transport process to the emergency room after his second assault in March, and Plaintiff alleges he informed
Bourhill about “these threats.” (TAC ¶ 22.) However, Plaintiff does not allege he informed Bourhill he had been attacked.
Because Plaintiff does not allege he communicated anything about the assault to Bourhill, he has not plausibly alleged Bourhill
acted with deliberate indifference. See Robinson, 2021 WL 1109053, at *5 (holding that plaintiff who had been previously
assaulted but only communicated to defendant that he wanted to be moved “due to [him] having issues with another inmate
and not wanting to be assaulted or assaulting this person” failed to satisfy the second prong because it “lacks details of specific
threats or past altercations with the other inmate”); Corley v. City of N.Y., No. 14-CV-3202, 2017 WL 4357662, at *13 (S.D.N.Y.
Sept. 28, 2017) (holding that two prior attacks by gang members could not support an “inference that any [d]efendant knew
or should have known about the potential danger” when the plaintiff did not allege that any defendant “was aware of these
confrontations”).
Additionally, Plaintiff fails to plausibly allege that remaining Defendants acted with deliberate indifference. Plaintiff provides
only minimal detail regarding the nature of the threats or assaults he claims he conveyed to Grant, Vollmer, Roberts, Torres,
Waal, Carozza, or Lopez. The Third Amended Complaint simply states that Plaintiff told Waal, Carozza, and Lopez that he “was
concerned about his safety due to the threats of assault by the inmates at the Jail.” (TAC ¶¶ 18–19.) Similarly, the Third Amended
Complaint alleges that Plaintiff provided Torres with “detailed information about the nature of the assaults and threats from
December 2017 until March 2018.” (Id. ¶ 17.) 5 Plaintiff's alleged communications to Grant, Roberts, and Vollmer regarding the
received threats are even more bare boned. (Id. ¶¶ 26, 30, 32.) While Plaintiff attaches a list of the threats he received at the end
of the Third Amended Complaint, he fails to identify which specific threats, if any, he disclosed to these Defendants. Generally,
“[c]ourts have found that, when an inmate informs corrections officers about a specific fear of assault and is then assaulted,
this is sufficient to proceed on a claim of failure to protect.” Francis v. City of N.Y., No. 17-CV-1453, 2018 WL 4659478, at
*4 (S.D.N.Y. Aug. 21, 2018) (citation and quotation marks omitted) (collecting cases). However, “[t]hose cases which have
found officers potentially liable for failing to prevent an attack involved clear and specific threats against an inmate.” Velez v.
City of N.Y., No. 17-CV-9871, 2019 WL 3495642, at *4 (S.D.N.Y. Aug. 1, 2019) (collecting cases), appeal dismissed, 2019
WL 3495642 (2d Cir. Oct. 17, 2019).
*8 Finally, Plaintiff's failure to protect allegations against Doe Defendants also fail. “A plaintiff does not make out a deliberate
indifference claim merely by establishing subjective awareness of a substantial risk of harm.” Manning v. Griffin, No. 15-CV-3,
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2016 WL 1274588, at *7 n.8 (S.D.N.Y. Mar. 31, 2016). A plaintiff must demonstrate both the awareness of risk and that the
defendant “disregards that risk by failing to take reasonable measures to abate the harm.” Id. (quoting Hayes, 84 F.3d at 620);
see also Farmer, 511 U.S. at 844 (“[P]rison officials who actually knew of a substantial risk to inmate health or safety may
be found free from liability if they responded reasonably to the risk, even if the harm ultimately was not averted.”). Plaintiff
has alleged that John Doe 1 and Jane Doe 1 Defendants, “County employees,” encountered Plaintiff in the emergency room,
and were informed by Plaintiff that he “was injured because of an assault by inmates and that he feared for his safety.” (TAC
¶ 25.) Plaintiff additionally states that Doe Defendants gave him “similar assurances about the threats and his safety and were
obligated to convey or report them to the proper personnel.” (Id.) Plaintiff, however, has not alleged what specific actions Doe
Defendants took, if any, and whether Doe Defendants did report the March assault. Plaintiff only states conclusory allegations—
that “[D]efendants failed to take any reasonable measures to ensure [P]laintiff's safety,” “[D]efendants failed to protect [P]laintiff
and exposed him to future harm,” and Defendants “did nothing until [P]laintiff was attacked one more time resulting in severe
injuries.” (Id. ¶¶ 54–59.) Furthermore, a plaintiff must show that the defendant prison officials “had the ability to take some
action that would have significantly alleviated the risk and yet failed to remedy the situation.” White, 2022 WL 2987554, at *5
(citation and quotation marks omitted); Warren v. Goord, 579 F. Supp. 2d 488, 496 (S.D.N.Y. 2008) (“[T]o prevail, a plaintiff
must show that the prison officials ‘had the ability to take some [reasonable] action that would have significantly alleviated’ ”
the risk (citation omitted)), aff'd, 368 F. App'x 161 (2d Cir. 2010). Plaintiff does not plausibly allege that the Doe Defendants—
County medical employees at an unknown emergency room—had the ability or obligation to report the incident to an official
who had the power to place Plaintiff in protective custody. Without plausible allegations that Doe Defendants failed to take
actions they had the reasonable ability or duty to undertake, Plaintiff's failure to protect claim against them fails. See Grant v.
Hogue, No. 17-CV-3609, 2018 WL 550612, at *6 (S.D.N.Y. Jan. 23, 2018) (dismissing claim against a defendant when the
plaintiff failed to allege the defendant “had the authority to enter a keep separate order for [the] plaintiff and [the attacker],
nor does [the] plaintiff allege [the defendant] had control over [the attacker's] movements”); cf. Gordon v. Drummond, No. 19-
CV-8405, 2021 WL 5314604, at *9 (S.D.N.Y. Nov. 16, 2021) (finding on summary judgment that the defendant could have
taken reasonable action to prevent an attack when he could have “report[ed] the possibility to a superior who could make efforts
to remove the gang members”), report and recommendation adopted, 2022 WL 884971 (S.D.N.Y. Mar. 25, 2022); Hill, 2019
WL 8192266, at *8 (denying motion to dismiss when defendant knew plaintiff had been assaulted by a gang member but failed
to report the assault pursuant to the Department of Corrections and Community Supervision and Office of Mental Health policy).
2. Monell Claim
“To state a claim under [§ 1983], the plaintiff must show that a defendant, acting under color of state law, deprived him of a
federal constitutional or statutory right.” Sykes v. Bank of Am., 723 F.3d 399, 405–06 (2d Cir. 2013). However, “Congress did
not intend municipalities to be held liable [under § 1983] unless action pursuant to official municipal policy of some nature
caused a constitutional tort.” Monell v. Dep't of Soc. Servs., 436 U.S. 658, 691 (1978). Thus, “to prevail on a claim against a
municipality under [§] 1983 based on acts of a public official, a plaintiff is required to prove: (1) actions taken under color
of law; (2) deprivation of a constitutional or statutory right; (3) causation; (4) damages; and (5) that an official policy of the
municipality caused the constitutional injury.” Roe v. City of Waterbury, 542 F.3d 31, 36 (2d Cir. 2008); see also Williams v.
Lohard, No. 20-CV-10571, 2022 WL 269164, at *3 (S.D.N.Y. Jan. 28, 2022) (“[The] [p]laintiff's claim against the [c]ity fails
for lack of facts supporting the existence of a municipal policy or practice.” (collecting cases)); Palmer v. City of N.Y., 564 F.
Supp. 3d 221, 240 (E.D.N.Y. 2021) (dismissing claim against city where the plaintiffs failed to “sufficiently allege[ ] that they
suffered constitutional violations as a result of an official policy or custom” (quotation marks omitted)).
This multi-factor test, and particularly the fifth element, reflects the notion that “a municipality may not be held liable under
§ 1983 solely because it employs a tortfeasor.” Bd. of Cnty. Comm'rs of Bryan Cnty. v. Brown, 520 U.S. 397, 403 (1997); see
also Pembaur v. City of Cincinnati, 475 U.S. 469, 478 (1986) (holding that a municipality may not be liable under § 1983 “by
application of the doctrine of respondeat superior.” (italics omitted)); Newton v. City of N.Y., 566 F. Supp. 2d 256, 270 (S.D.N.Y.
2008) (“As subsequently reaffirmed and explained by the Supreme Court, municipalities may only be held liable when the
municipality itself deprives an individual of a constitutional right.”); Vassallo v. Lando, 591 F. Supp. 2d 172, 201 (E.D.N.Y.
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2008) (noting that “a municipal entity may only be held liable where the entity itself commits a wrong”). Instead, there must be
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); see also City of St. Louis v. Praprotnik, 485 U.S. 112, 122 (1988) (“[G]overnments should be held
responsible when, and only when, their official policies cause their employees to violate another person's constitutional rights.”).
*9 “In determining municipal liability, it is necessary to conduct a separate inquiry into whether there exists a ‘policy’ or
‘custom.’ ” Davis v. City of N.Y., 228 F. Supp. 2d 327, 336 (S.D.N.Y. 2002), aff'd, 75 F. App'x 827 (2d Cir. 2003). Normally,
“a custom or policy cannot be shown by pointing to a single instance of unconstitutional conduct by a mere employee of the
[municipality].” Newton, 566 F. Supp. 2d at 271; see also City of Okla. City v. Tuttle, 471 U.S. 808, 823–24 (1985) (plurality
opinion) (“Proof of a single incident of unconstitutional activity is not sufficient to impose liability under Monell, unless proof
of the incident includes proof that it was caused by an existing, unconstitutional municipal policy, which policy can be attributed
to a municipal policymaker.”); Bird v. Cnty. of Westchester, No. 20-CV-10076, 2022 WL 2263794, at *12 (S.D.N.Y. June 23,
2022) (“Plaintiff fails to allege the existence of any other similar incident, which dooms Plaintiff's claim because a custom or
policy cannot be shown by pointing to a single instance of unconstitutional conduct by a mere employee of the municipality.”)
(citation and quotation marks omitted); Santana v. City of N.Y., 15-CV-6715, 2018 WL 1633563, at *10 (S.D.N.Y. Mar. 29,
2018) (“[A] ‘single incident alleged in a complaint, especially if it involved only actors below the policy-making level, does not
suffice to show a municipal policy.’ ”) (quoting DeCarlo v. Fry, 141 F.3d 56, 61 (2d Cir. 1998)); Brogdon v. City of New Rochelle,
200 F. Supp. 2d 411, 427 (S.D.N.Y. 2002) (“A single incident by itself is generally insufficient to establish the affirmative link
between the municipal policy or custom and the alleged unconstitutional violation.”).
A plaintiff may satisfy the “policy or custom” requirement by alleging one of the following:
(1) a formal policy officially endorsed by the municipality; (2) actions taken by government officials
responsible for establishing the municipal policies that caused the particular deprivation in question; (3)
a practice so consistent and widespread that, although not expressly authorized, constitutes a custom or
usage of which a supervising policy-maker must have been aware; or (4) a failure by policymakers to
provide adequate training or supervision to subordinates to such an extent that it amounts to deliberate
indifference to the rights of those who come into contact with the municipal employees.
Atadzhanov v. City of New York, 21-CV-5098, 2022 WL 4331304, at *11 (S.D.N.Y. Sept. 19, 2022) (citations omitted); see also
Patterson v. Cnty. of Oneida, N.Y., 375 F.3d 206, 226–27 (2d Cir. 2004) (describing methods of establishing Monell liability).
A plaintiff must also establish a causal link between the municipality's policy, custom, or practice and the alleged constitutional
injury. See Tuttle, 471 U.S. at 824 n.8 (“The fact that a municipal ‘policy’ might lead to ‘police misconduct’ is hardly sufficient to
satisfy Monell’s requirement that the particular policy be the ‘moving force’ behind a constitutional violation. There must at least
be an affirmative link between[, for example,] the training inadequacies alleged, and the particular constitutional violation at
issue.” (emphasis omitted)); Batista v. Rodriguez, 702 F.2d 393, 397 (2d Cir. 1983) (“Absent a showing of a causal link between
an official policy or custom and the plaintiffs' injury, Monell prohibits a finding of liability against the [c]ity.”); Hincapie v. City
of N.Y., 434 F. Supp. 3d 61, 77 (S.D.N.Y. 2020) (finding that the plaintiff “fails to state a Monell claim” because the plaintiff
“has not pled facts demonstrating a direct link between his injuries and the alleged municipal policy”); Johnson v. City of N.Y.,
No. 06-CV-9426, 2011 WL 666161, at *3 (S.D.N.Y. Feb. 15, 2011) (noting that after demonstrating the existence of a municipal
policy or custom, “a plaintiff must establish a causal connection—an affirmative link—between the policy and the deprivation
of his constitutional rights” (quotation marks omitted)).
Plaintiff alleges that the County “does not have a policy when it comes to placing individuals such as [P]laintiff who are
threatened by inmates into protective custody” and that to the extent “the county has a policy that is ineffective, [ ] the widespread
custom renders such policy a nullity.” (TAC ¶ 36.) Plaintiff further articulates in his Opposition that “in the TAC, [P]laintiff
alleges that [D]efendant County does not have a policy or the means to segregate individuals who face harm from other inmates.
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Plaintiff further alleges that in the absence of the policy, the widespread custom makes the County liable under Monell....” (Pl.'s
Mem. 5.) Plaintiff additionally alleges that the County has “failed to train its employees when they receive complaints about
individuals such as [P]laintiff who are in danger” from other inmates. (TAC ¶ 36.) Plaintiff asserts that had “the County
implemented a training program then the individual [D]efendants that are named in this complaint would know how to act
when presented with a situation such as [P]laintiff.” (Id.) Importantly, Plaintiff does not allege that actions taken by government
officials responsible for establishing the municipal policies or a formal policy caused the injury in question. (Id.; Pl.'s Mem.
5.) Accordingly, the Court need only analyze whether there existed a sufficiently widespread practice to constitute a custom, or
whether policymakers failed to provide adequate training or supervision. See Atadzhanov, 2022 WL 4331304, at *11 (listing
the four modes of proving a policy, custom, or practice under Monell).
a. Widespread Practice
*10 To demonstrate a practice is sufficiently widespread to constitute a custom under Monell, the practice must be so “persistent
and widespread,” or so “permanent and well settled as to constitute a ‘custom or usage’ with the force of law” and to “imply
the constructive knowledge of policymaking officials.” In re N.Y.C. Policing During Summer 2020 Demonstrations, 548 F.
Supp. 3d 383, 400 (S.D.N.Y. 2021) (citing Sorlucco v. N.Y.C. Police Dep't, 971 F.2d 864, 870 (2d Cir. 1992)); see also Triano
v. Town of Harrison, 895 F. Supp. 2d 526, 532 (S.D.N.Y. 2012) (citing Praprotnik, 485 U.S. at 127) (noting that to demonstrate
a practice constitutes a custom under Monell, “a plaintiff must prove that the custom at issue is permanent and well-settled”).
Plaintiff alleges that the County does not have a policy of placing threatened inmates into protective custody, and “in the absence
of the policy, the widespread custom makes the County liable under Monell.” (Pl.'s Mem. 5.) However, Plaintiff does not point
to any instance of the County failing to place threatened inmates into protective custody beyond his own. This alone is fatal
to Plaintiff's Monell claim. See Aragon v. New York, No. 14-CV-9797, 2017 WL 2703562, at *6 (S.D.N.Y. June 22, 2017)
(dismissing claims where “[the] [p]laintiff seems to allege the existence of a practice adopted by the [County] solely based on
[the] [p]laintiff's alleged experience”); Gordon v. City of N.Y., No. 10-CV-5148, 2012 WL 1068023, at *4 (E.D.N.Y. Mar. 29,
2012) (dismissing Monell claim where the plaintiff's “allegation [was] unsupported by anything other than the facts of what
occurred in his particular case” (citations omitted)). Plaintiff therefore has not plausibly alleged facts to support an inference
that the County has a custom of failing to protect inmates from fellow inmates. See King v. City of Beacon Police Dep't, No.
20-CV-5815, 2021 WL 1550073, at *3 (S.D.N.Y. Apr. 20, 2021) (determining that conclusory allegations that plaintiff's injury
was a result of a policy or custom fail when plaintiff does not sufficiently allege the existence of a policy or custom); Rodgers
v. City of Yonkers, No. 19-CV-5358, 2019 WL 6498529, at *4 (S.D.N.Y. Dec. 3, 2019) (determining that plaintiff's widespread
practice and policy claim cannot stand when plaintiff “fails plausibly to allege facts demonstrating a custom or policy”); Moore
v. City of N.Y., No. 08–CV–8879, 2010 WL 742981, at *6 (S.D.N.Y. Mar. 2, 2010) (“Allegations that a defendant acted pursuant
to a ‘policy’ or ‘custom’ ‘without any facts suggesting the policy's existence, are plainly insufficient.’ ”) (quoting Missel v. Cnty.
of Monroe, 351 Fed. Appx. 543, 545 (2d Cir. 2009) (summary order)). 6
*11 In sum, Plaintiff has failed to plausibly state a Monell claim under a theory of widespread custom or practice.
b. Failure to Train
To set forth a failure to train claim, “a plaintiff must plausibly allege a specific deficiency in the municipality's training.” Tieman
v. City of Newburgh, No. 13-CV-4178, 2015 WL 1379652, at *22 (S.D.N.Y. Mar. 26, 2015). In particular, a failure to train
constitutes a policy or custom that is actionable under § 1983 only where “in light of the duties assigned to specific officers
or employees the need for more or different training is so obvious, and the inadequacy so likely to result in the violation of
constitutional rights, that the policymakers ... can reasonably be said to have been deliberately indifferent to the need.” City
of Canton, 489 U.S. at 390. Moreover, the Second Circuit has held that a finding of deliberate indifference requires: (1) “that
a policymaker knows ‘to a moral certainty’ that her employees will confront a given situation”; (2) “that the situation either
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presents the employee with a difficult choice of the sort that training or supervision will make less difficult or that there is a
history of employees mishandling the situation”; and (3) “that the wrong choice by the ... employee will frequently cause the
deprivation of a citizen's constitutional rights.” Okin v. Vill. of Cornwall-On-Hudson Police Dep't, 577 F.3d 415, 440 (2d Cir.
2009) (alteration in original) (citing Walker v. City of N.Y., 974 F.2d 293, 297–98 (2d Cir. 1992)). “A municipality's culpability
for a deprivation of rights is at its most tenuous where a claim turns on a failure to train.” Connick v. Thompson, 563 U.S.
51, 61 (2011).
Plaintiff's complaint does not “contain sufficient factual matter” to state a training deficiency “that is plausible on its face.”
Iqbal, 556 U.S. at 678 (quoting Twombly, 550 U.S. at 570). Indeed, Plaintiff merely alleges that the County has “failed to train
its employees when they receive complaints about individuals such as [P]laintiff who are in danger” from other inmates. (TAC
¶ 36.) Plaintiff asserts that had “the County implemented a training program then the individual [D]efendants that are named
in this complaint would know how to act when presented with a situation such as [P]laintiff.” (Id.) Such a training program
would include training regarding “investigation of threats,” “counsel[ing] individuals such as [P]laintiff, ensur[ing] that these
threatened individuals remain protected, address[ing] the threats received to incarcerated individuals, [and] ensur[ing] that the
threatened individuals and the individuals who are the ones threatening are kept away from each other.” (Id.) Plaintiff alleges
that the County is aware that its employees would “encounter situations as outlined in this complaint” and the need for “effective
policy and or training for its employees” but “failed to take any action ... amount[ing] to deliberate indifference.” (Id. ¶¶ 38, 40.)
Simply put, the sum total of Plaintiff's failure-to-train claim is based on a threadbare description of the County's training, and is
the type of conclusory claim that courts routinely dismiss. See, e.g., Clarke v. Antonini, No. 21-CV-1877, 2022 WL 4387357,
at *12 (S.D.N.Y. Sept. 22, 2022) (dismissing Monell claim where plaintiff failed to “allege a specific deficiency in either the
[c]ity or the [c]ounty's training for his failure-to-train theory”); Buari v. City of N.Y., 530 F. Supp. 3d 356, 400 (S.D.N.Y. 2021)
(“[A] plaintiff must allege facts that support an inference that the municipality failed to train its police officers” without which,
a failure to train claim cannot survive (citation and quotation marks omitted)); Lehal v. Cent. Falls Det. Facility Corp., No. 13-
CV-3923, 2016 WL 7377238, at *11 (S.D.N.Y. Nov. 21, 2016) (dismissing failure to train claim when “Plaintiff's [ ] allegations
regarding a supposed lack of training are too general and speculative to support a Monell claim”); Triano, 895 F. Supp. 2d
at 539–40 (dismissing Monell claim where the plaintiff “merely alleged that the [t]own failed to train its employees, without
providing any supporting factual detail about alleged deficiencies in the training program”); Walker v. City of N.Y., No. 14-
CV-808, 2015 WL 4254026, at *11 (S.D.N.Y. July 14, 2015) (dismissing failure to train claim when plaintiff “neither cites to
procedural manuals and training guides, nor highlights the pertinent aspects of police training in order to prove the claim”).
*12 Furthermore, in addition to identifying a specific training deficiency, a plaintiff must “establish that that deficiency caused
the constitutional deprivation.” Benn v. City of N.Y., No. 18-CV-722, 2021 WL 3193022, at *6 (S.D.N.Y. July 28, 2021) (citation
omitted). Plaintiff, however, only asserts that had “the County implemented a training program then the individual [D]efendants
that are named in this complaint would know how to act when presented with a situation such as [P]laintiff.” (TAC ¶ 36.)
Plaintiff's conclusory assertions do not suffice to plausibly allege that a deficiency in training caused his injury. See King, 2021
WL 1550073, at *3 (dismissing Monell claims when plaintiff's allegations that his injuries “resulted from a municipal policy
or custom” were “wholly conclusory”); Acosta v. City of N.Y., No. 11-CV-856, 2012 WL 1506954, at *11 (S.D.N.Y. Apr. 26,
2012) (dismissing Monell claim where the plaintiff merely alleged that the city “failed to train its police officers,” because the
plaintiff “failed to set forth factual allegations that would support a plausible inference that the [c]ity's ‘policies’ or ‘customs’
caused ... [the] alleged violations of [the] plaintiff's rights”).
Plaintiff, pointing to a single Second Circuit decision, Amnesty America v. Town of West Hartford, 361 F.3d 113 (2d Cir. 2004),
argues he has sufficiently pled a failure to train. (Pl.'s Mem. 8.) In Amnesty America, the Second Circuit suggested in dicta that
to state a claim for a municipality's failure to train its employees, a plaintiff “need only plead that the city's failure to train caused
the constitutional violation,” because “[i]t is unlikely that a plaintiff would have information about the city's training programs
or about the cause of the misconduct at the pleading stage[.]” 361 F.3d at 130 n.10. However, such a relaxed pleading standard
is difficult to reconcile with Twombly's subsequent pronouncement that “a plaintiff's obligation to provide the grounds of his
entitle[ment] to relief requires more than labels and conclusions,” Twombly, 550 U.S. at 555 (alteration in original) (internal
quotation marks omitted), or with Iqbal's requirement that a plaintiff must “plead [ ] factual content that allows the court to
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draw the reasonable inference that the defendant is liable for the misconduct alleged,” Iqbal, 556 U.S. at 678. Although “[a]
municipality's failure to properly train its employees can under certain circumstances give rise to Monell liability, ... a claim
based on this theory still must be properly pled under Iqbal.” Simms v. City of N.Y., No. 10-CV-3420, 2011 WL 4543051, at
*2 (E.D.N.Y. Sept. 28, 2011) (citation and footnote omitted), aff'd, 480 F. App'x 627 (2d Cir. 2012); see also Clarke, 2022
WL 4387357, at *12 (granting motion to dismiss where Plaintiff failed to “allege a specific deficiency in either the [c]ity or
the [c]ounty's training for his failure-to-train theory” when he only listed a series of topics he claimed defendants failed to
adequately train on); Smith v. Collins, No. 15-CV-216, 2016 WL 817473, at *2 (S.D.N.Y. Feb. 26, 2016) (noting that after
Twombly and Iqbal, “the Second Circuit has indicated that some non-conclusory allegation as to deficient training programs is
necessary at the pleading stage”) (emphasis omitted) (citing Simms v. City of N.Y., 480 F. App'x 627, 631 n. 4 (2d Cir. 2012));
Santos v. N.Y.C., 847 F. Supp. 2d 573, 577 (S.D.N.Y. 2012) (“Because the existence of a municipal policy or practice, such as
a failure to train or supervise, cannot be grounded solely on the conclusory allegations of the plaintiff, [the plaintiff's] claims
against the City are dismissed with prejudice.” (citation omitted)).
Beyond these concerns, the Supreme Court has emphasized that, “[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 (quotation marks omitted). This is because “[w]ithout notice that a course of training is deficient in a particular respect,
decisionmakers can hardly be said to have deliberately chosen a training program that will cause violations of constitutional
rights.” Id. Accordingly, that Plaintiff has failed to plausibly allege any constitutional violation beyond his own single instance
also dooms his failure-to-train claim. See Dietrich, 2020 WL 5209816, at *5 (dismissing plaintiff's failure to train claim when
plaintiff “points only to his own experience” which did not constitute a pattern); Galgano v. Cnty. of Putnam, No. 16-CV-3572,
2020 WL 3618512, at *15 (S.D.N.Y. July 2, 2020) (dismissing failure to train claim when “[the] [p]laintiff has alleged no pattern
of similar constitutional violations in other cases” that would put the town on notice (quotation marks omitted)); Corbett v. City
of N.Y., No. 15-CV-9214, 2016 WL 7429447, at *6 (S.D.N.Y. Dec. 22, 2016) (“The Court will not infer a deficiency in training
by speculation based upon a single alleged constitutional violation.... [T]o draw such an inference based upon a single allegedly
unconstitutional act would be to entertain a claim that falls uncomfortably close to municipal vicarious liability, which is not
cognizable under § 1983.” (citations omitted)).
*13 Plaintiff argues that his failure to train claim should survive even if predicated on a single incident. (Pl.'s Mem. 6–7.)
However, a municipality can be found to be deliberately indifferent based on a single constitutional violation only where “the
unconstitutional consequences of failing to train ... [are] so patently obvious that a city could be liable under § 1983 without
proof of a pre-existing pattern of violations.” Connick, 563 U.S. at 64. In other words, that violation must be a “highly predictable
consequence” of the failure to train. Id. (quotation marks omitted). The Supreme Court has explained that single incident liability
could apply where a city's failure to train its officers about the constitutional limits on the use of deadly force could reflect
the city's deliberate indifference to violations of constitutional rights because “in the absence of training, there is no way for
novice officers to obtain the legal knowledge they require” therefore “an obvious need for some form of training” exists. Id.;
see also Prevost v. City of N.Y., No. 13-CV-3760, 2014 WL 6907560, at *7 (S.D.N.Y. Dec. 9, 2014) (finding that constitutional
violations were a highly predictable consequence of the municipality's “failure to train its officers on the circumstances in which
a privileged use of force causes probable cause to dissipate”). Notably, the Supreme Court has characterized this exception as
“narrow” and “rare.” Connick, 563 U.S. at 64.
In Chamberlain v. City of White Plains, 986 F. Supp. 2d 363 (S.D.N.Y. 2013), the court noted that [w]hile some have argued
that the Connick decision so narrowed the single-incident theory as to essentially eliminate it, courts across the country have
continued to apply that theory post-Connick when its strict requirements have been met.” Id. at 391. Relying on out of circuit
precedent, the Chamberlain court held that failure to train was adequately pledged under the single incident theory when the
police's “manual section on [emotionally disturbed persons (“EDPs”)] contains no guidance and no indication that WPPD
officers receive any training regarding interacting with EDPs, as the policies contained therein relate solely to procedures once
the police have brought an EDP to a hospital.” Id. at 393.
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Since Chamberlain, “[c]ourts in this Circuit and others have found that the single-incident theory is available only when the
evidence reflects a complete lack of any training or where the training is so inadequate that it amounts to a ‘lack of training.’
” House v. City of N.Y., No. 18-CV-6693, 2020 WL 6891830, at *19 (S.D.N.Y. Nov. 24, 2020) (quoting Breitkopf v. Gentile,
41 F. Supp. 3d 220, 254–55 (E.D.N.Y. 2014) (collecting cases)); see also O'Brien v. Barrows, 556 Fed. Appx. 2, 5 (2d Cir.
2014) (summary order) (“[T]he Court has suggested that failing to provide an armed police officer with any training about the
constitutional limitations on the use of deadly force could constitute deliberate indifference.” (emphasis in original)).
In support of his position, Plaintiff claims that the need for training to protect inmates from one another is “patently obvious”
and that “unless one lives under a rock or is completely oblivious of what transpires inside prison, they would know that if
the employees are not adequately trained, there is a likelihood of violation of [P]laintiff's constitutional rights[,] i.e. being
assaulted by or on behalf of inmates who have threatened the [P]laintiff.” (Pl's. Mem. 6.) However, Plaintiff has not pled facts
that would plausibly allege a complete lack of any training. Plaintiff broadly alleges that the County has “failed to adequately
train its employees when dealing with situations as outlined in [P]laintiff's complaint” and “does not have a training procedure
that would allow its employees to adequately address concerns voiced by individuals such as [P]laintiff.” (TAC ¶ 36.) These
allegations are wholly conclusory. This case is therefore unlike Chamberlain, where the complaint specifically alleged facts
that the police department had a complete lack of police training regarding interacting with emotionally disturbed persons, as
Plaintiff has not alleged any facts from any manual, website, or any Jail training practice or policy from which he can plausibly
allege an absence of any training on the protection of inmates that face specific threats. Chamberlin, 986 F. Supp. 2d at 393; see
also Edrei v. City of N.Y., 254 F. Supp. 3d 565, 581 & n.6 (S.D.N.Y. 2017), aff'd sub nom. Edrei v. Maguire, 892 F.3d 525 (2d
Cir. 2018) (holding failure to train claim sufficiently alleged under single incident theory when the complaint plausibly alleged
that the New York Police Department did not change its policies or practices to discuss the proper usage of long range acoustic
devices once the devices were being used in the field, instead, the patrol guide just included instructions to police officers to
use “the minimal necessary force” while on patrol).
*14 Because Plaintiff has not plausibly alleged a complete lack of any training regarding protective custody by providing any
fact that would make such an assertion not just conceivable but plausible, he fails to plausibly allege a failure to train claim
under the single incident theory. See Smith v. Town of Lloyd, No. 17-CV-77, 2017 WL 11446304, at *5 (N.D.N.Y. Dec. 18,
2017) (dismissing failure to train claim because “the single-incident theory is only triggered when a plaintiff has alleged the
absence of training in the first place”); Copelin v. Suffolk Cnty., No. 13-CV-3237, 2013 WL 5460748, at *4 n.2 (E.D.N.Y. Sept.
30, 2013) (“[T]his case does not fall within that narrow and ‘rare’ range of cases, particularly because [the] plaintiff does not
allege a complete lack of training of [c]ounty deputy sheriff investigators or that [c]ounty deputy sheriff investigators had an
utter lack of an ability to cope with constitutional situations[.]” (citation and quotation marks omitted)); see also House, 2020
WL 6891830, at *19 (holding that a plaintiff's single incident failure to train claim failed on summary judgment when, despite
the officer not receiving formal training on protective custody, he did receive “some training” regarding the subject either at
the Correctional Officer Academy or on the job); Dillman v. Tuolumne Cnty., No. 13–CV–404, 2013 WL 3832736, at *6–8
(E.D. Cal. July 23, 2013) (dismissing claim under single-incident theory where plaintiff challenged adequacy, rather than lack
of existence, of training regarding proper use of handcuffs and strip searches).
Accordingly, Defendants' Motion with regard to municipal liability is granted and Plaintiff's claim is dismissed.
3. State Law Claims
Federal courts have the discretion to deem a claim abandoned when a defendant moves to dismiss that claim and the plaintiff
fails to address in their opposition papers the defendant's arguments for dismissing such a claim. See, e.g., Lipton v. Cnty. of
Orange, 315 F. Supp. 2d 434, 446 (S.D.N.Y. 2004) (“This Court may, and generally will, deem a claim abandoned when a
plaintiff fails to respond to a defendant's arguments that the claim should be dismissed.”); Anti–Monopoly, Inc. v. Hasbro, Inc.,
958 F. Supp. 895, 907 n.11 (S.D.N.Y. 1997) (“[T]he failure to provide argument on a point at issue constitutes abandonment
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of the issue ... which provides an independent basis for dismissal.”), aff'd, 130 F.3d 1101 (2d Cir. 1997); see also Robinson v.
Fischer, No. 09–CV–8882, 2010 WL 5376204, at *10 (S.D.N.Y. Dec. 29, 2010) (collecting cases).
Plaintiff brings several state claims in addition to his federal claims: intentional and negligent infliction of emotional distress;
New York common law negligence; violations of the New York State Constitution and Human and Civil Rights Law; negligent
screening, training, hiring, and retention; negligent training and supervision; and respondeat superior liability. (TAC ¶¶ 71–89.)
Defendants argue that such claims should be dismissed because Plaintiff's federal claims are deficient as a matter of law and
additionally provide independent reasons each state law claim was deficient in its own right. (Defs.' Mem. 19–22.) In Plaintiff's
Reply, Plaintiff responds stating “[s]ince the [D]efendants have requested that the Court decline to exercise supplemental
jurisdiction over the state law claims because the federal claims are subject to dismissal, [P]laintiff only addresses in this
opposition the four (4) federal causes of action that remain.” (Pl.'s Mem. 2.) Plaintiff has failed to respond to Defendants'
arguments for dismissing his state claims, therefore, this Court holds that Plaintiff has abandoned his state claims. Laface v. E.
Suffolk BOCES, No. 18-CV-1314, 2019 WL 1959489, at *8 (E.D.N.Y. May 2, 2019) (“In the Second Circuit, a plaintiff's failure
to respond to contentions raised in a motion to dismiss constitute[s] an abandonment of those claims.” (alteration and quotation
marks omitted) (collecting cases)); Romeo & Juliette Laser Hair Removal, Inc. v. Assara I LLC, No. 08-CV-442, 2014 WL
4723299, at *7 (S.D.N.Y. Sept. 23, 2014) (“At the motion to dismiss stage ... a plaintiff abandons a claim by failing to address
the defendant's arguments in support of dismissing that claim.”).
III. Conclusion
*15 For the foregoing reasons, Defendants' Motion is granted in part and denied in part. 7 Defendants' Motion is granted
with regards to Plaintiff's conditions of confinement and failure to protect claims against Bourhill, Grant, Vollmer, Roberts,
Torres, Waal, Carozza, Lopez, and Doe Defendants and Monell liability. Defendants' Motion is denied with regards to Plaintiff's
conditions of confinement and failure to protect claims against Ficarrotta and Worrell. Because this is the first adjudication
of Plaintiff's claims on the merits, Plaintiff's conditions of confinement and failure to protect claims against Bourhill, Grant,
Vollmer, Roberts, Torres, Waal, Carozza, Lopez, and Doe Defendants and his Monell claims are dismissed without prejudice. If
Plaintiff wishes to file a fourth amended complaint alleging additional facts and otherwise addressing the deficiencies identified
above, Plaintiff must do so within 30 days of the date of this Opinion & Order. Plaintiff is further advised that the fourth amended
complaint will completely replace, not supplement, the instant Third Amended Complaint. The fourth amended complaint must
therefore contain all of the claims, defendants, and factual allegations that Plaintiff wishes the Court to consider. If Plaintiff
fails to timely file a fourth amended complaint, the claims may be dismissed with prejudice.
The Court will hold a status conference on May 5, 2023, at 11:00 AM.
SO ORDERED.
All Citations
Not Reported in Fed. Supp., 2023 WL 2632204
Footnotes
1 While Plaintiff claims he was threatened by “the inmates at the Jail,” it is unclear if he is referring only to the gang
members or inmates in general.
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2 Plaintiff has withdrawn his failure to intervene claim, his deliberate indifference to medical needs claim, and his claim
that the inadequate grievance policy rises to a claim under Monell. (Pl.'s Mem at 2, 5; Dkt. No. 134.)
3 Courts analyze conditions of confinement and failure to protect claims separately when a plaintiff has alleged a
conditions of confinement claim that is separate and apart from a failure to protect claim—for instance, claims regarding
wet floors or unsanitary housing conditions. See e.g., Morales v. City of N.Y. for Riker's Island, No. 18-CV-6374, 2022
WL 799729, at *3–4 (S.D.N.Y. Mar. 16, 2022) (addressing plaintiff's allegations that he was denied use of the bathroom
and spent five days without the bed under conditions of confinement and harm from another inmate under failure to
protect); Edwards v. Middleton, No. 19-CV-1362, 2020 WL 4474682, at *5–6 (S.D.N.Y. Aug. 3, 2020) (addressing
plaintiff's allegations that “the cell had bug and rat infestations, black mold, and a leaky toilet” under conditions of
confinement, and allegations that an officer had encouraged an inmate to attack plaintiff under failure to protect); Luckey
v. Jonas, No. 18-CV-8103, 2019 WL 4194297, at *2–5 (S.D.N.Y. Sept. 4, 2019) (analyzing harm from slipping on wet
floor under conditions of confinement and harm from inmate attack while plaintiff was on the floor under failure to
protect).
4 Defendants argue that it is unclear which inmates attacked Plaintiff in the April attack, and whether they were members
of the same gang that assaulted Plaintiff in March, as Plaintiff only states that the was assaulted by “inmates” on April
30. (TAC ¶ 27, Def. Mem. 15.) However, early in the Third Amended Complaint, Plaintiff defines “inmates” as “gang
leader and other members of the gang and associates.” (TAC ¶ 15.) In fairness to Defendants, this might not have been
the wisest choice of terms to describe gang member inmates, because all individuals at the facility where Plaintiff was
housed were inmates. In the future, counsel should consider a different definition, such as “gang member inmates.”
5 The information Plaintiff alleges he conveyed to Torres about the assault is distinguishable from that which he conveyed
to Ficarrotta and Worrell, who were both allegedly aware Plaintiff had been assaulted for being a snitch in the immediate
aftermath of the assault. (TAC ¶¶ 23–24.) Plaintiff does not allege what specifically about the assault he communicated
to Torres or that Torres was aware he was assaulted for being a snitch. (Id. ¶ 17.) As the cases make clear, the description
of the prior altercation must be sufficiently detailed so that the defendant knew or should have known the plaintiff's
safety was at risk. White v. Gutwein, No. 20-CV-4532, 2022 WL 2987554, at *4 (S.D.N.Y. July 28, 2022) (stating in
the Eighth Amendment context that “[f]or failure to protect claims that involve risks of harm posed by other inmates,
courts typically deem the subjective prong satisfied if the defendant-officials had received—from either the plaintiff
or other inmates—a sufficiently detailed account of the particular assaulter's specific threats to the plaintiff or past
instances of aggression”(emphasis in original) (citation omitted)); Robinson, 2021 WL 1109053, at *5 (stating in the
Eighth Amendment context that “courts have found that the subjective prong was satisfied where the prisoner told a
corrections officer a sufficiently detailed account about one or more specific threats or past instances of aggression from
a known offender”).
6 Even if Plaintiff had successfully pled that he had been subject to two or three instances of unconstitutional deprivation,
courts in the Second Circuit have found such allegations inadequate to prove a widespread custom under Monell. See
Jones v. Town of East Haven, 691 F.3d 72, 85 (2d Cir. 2012) (holding that three similar incidents “fell far short of
showing a policy, custom, or usage of officers”); Giaccio v. City of N.Y., 308 Fed. Appx. 470, 471–72 (2d Cir. 2009)
(summary order) (dismissing Monell claim where plaintiff could identify only four incidents); Price v. City of N.Y., No.
15-CV-5871, 2018 WL 3117507, at *19 (S.D.N.Y. June 25, 2018) (“Plaintiff's allegations of three similar constitutional
violations do not allow the Court plausibly to infer the existence of a widespread custom or practice that can be attributed
to the City.”); Calicchio v. Sachem Cent. Sch. Dist., 185 F. Supp. 3d 303, 316–17 (E.D.N.Y. 2016) (dismissing Monell
claim based on only two similar incidents and observing that “courts in this Circuit have rejected the notion that two,
three or even four incidents will support such an inference”).
7 Plaintiff names Bhola as a defendant in the Third Amended Complaint but fails to allege any facts related to Bhola.
Accordingly, Plaintiffs' claims against Bhola are dismissed. See Washington v. Melis, No. 16-CV-6469, 2018 WL
2324079, at *3 (S.D.N.Y. May 22, 2018) (“Kaplan is not once mentioned by name or position in the body of the
Amended Complaint, which is itself grounds for dismissal.”); Manley v. Ramos, No. 13-CV-2662, 2014 WL 1496094,
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at *2 (S.D.N.Y. Apr. 16, 2014) (dismissing claims where the plaintiff “name[d] [police officers] as defendants in the
caption, but ... never mention[ed] them again in the body of the complaint”); Ortiz v. Bloomberg, No. 10-CV-9434, 2011
WL 4822829, at *3 (S.D.N.Y. Oct. 7, 2011) (dismissing claims where “the only named reference to [certain correctional
officers] [was] in the caption of the [c]omplaint, and the only additional references to these defendants [were] merely
conclusory statements about their personal involvement and liability”). Additionally, Jason Planksy was named as a
defendant in the Third Amended Complaint, however the claims against him were limited to medical indifference claims.
(TAC; Pl.'s Mem.) Because Plaintiff has withdrawn claims based on inadequate medical care, the claims against Jason
Planksy are dismissed.
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Missel v. County of Monroe, 351 Fed.Appx. 543 (2009)
© 2026 Thomson Reuters. No claim to original U.S. Government Works. 1
KeyCite Yellow Flag
Distinguished by Ogunkoya v. County of Monroe, E.D.N.Y., November 11, 2017
351 Fed.Appx. 543
This case was not selected for publication in the Federal Reporter.
United States Court of Appeals,
Second Circuit.
James MISSEL, Plaintiff–Appellant,
v.
COUNTY OF MONROE; Monroe County Sheriff's Department; Sheriff Patrick
O'Flynn, of the Monroe County Sheriff's Department, in his official capacity; Deputy
Michael Hildreth, in his official and individual capacity, Defendants–Appellees.
No. 09–0235–cv.
|
Nov. 4, 2009.
Synopsis
Background: Plaintiff brought § 1983 action against municipality, alleging sheriff's deputy harassed and persecuted plaintiff.
The United States District Court for the Western District of New York, Telesca, J., 2008 WL 2357637, granted municipality
motion to dismiss.
Holdings: The Court of Appeals, Second Circuit held that:
[1] allegations were insufficient to plead policy or custom by municipality, and
[2] allegations were insufficient to plead deliberate indifference to, or tacit approval of, deputy's conduct by municipality.
Affirmed.
Procedural Posture(s): On Appeal; Motion to Dismiss.
West Headnotes (2)
[1] Civil Rights Criminal law enforcement; prisons
Plaintiff's allegations that deputy harassed and persecuted plaintiff were insufficient to plead policy or custom by
municipality to cause deputy's alleged constitutional violations of plaintiff's constitutional rights, as required for
municipal liability in plaintiff's § 1983 action, absent allegations that any official policymaker or policymaking body
took any action to establish policies of harassment. 42 U.S.C.A. § 1983.
277 Cases that cite this headnote
[2] Civil Rights Criminal law enforcement; prisons
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Plaintiff's allegations that sheriff's deputy harassed and persecuted plaintiff were insufficient to plead deliberate
indifference to, or tacit approval of, deputy's conduct by municipality, as required for municipal liability in plaintiff's
§ 1983 proceedings, where municipality began investigation of deputy the day plaintiff lodged complaint against him,
and deputy was prosecuted for his conduct. 42 U.S.C.A. § 1983.
117 Cases that cite this headnote
*544 Appeal from the United States District Court for the Western District of New York (Telesca, J.).
UPON DUE CONSIDERATION, it is hereby ORDERED, ADJUDGED, AND DECREED that the judgment of the district
court be AFFIRMED.
Attorneys and Law Firms
Christina A. Agola, Law Offices of Christina A. Agola, Rochester, NY, for Plaintiff–Appellant.
Howard A. Stark, County of Monroe Attorney's Office (Daniel M. De Laus, Jr., Monroe County Attorney; Sean T. Hanna, of
counsel, on the brief), Rochester, NY, for Defendants–Appellees.
PRESENT: AMALYA L. KEARSE, DEBRA ANN LIVINGSTON, Circuit Judges, ROSLYNN R. MAUSKOPF, * District
Judge.
SUMMARY ORDER
**1 Plaintiff–Appellant James Missel (“Missel”) appeals from a judgment of the United States District Court for the Western
District of New York (Telesca, J. ) entered on June 4, 2008, 2008 WL 2357637, dismissing his § 1983 complaint against the
County of Monroe, the Monroe County Sheriff's Department, and Sheriff Patrick O'Flynn in his official capacity (collectively
“Defendants” or “County Defendants”) for failure to state a claim upon which relief can be granted pursuant to Fed.R.Civ.P.
12(b)(6). We assume the parties' familiarity with the underlying facts, procedural history, and specification of the issues on
appeal.
In brief, Missel's complaint alleges that Missel suffered a pattern of harassment, persecution, and intimidation at the hands of
Deputy Michael Hildreth of the Monroe *545 County Sheriff's Department. See Compl. ¶¶ 21–35. The complaint discloses
that these incidents resulted in a departmental investigation of Hildreth, his termination from the Sheriff's Department, and
ultimately his criminal conviction on April 24, 2007 for eavesdropping and official misconduct. Id. ¶¶ 48–49. Missel filed this
action seeking damages from Hildreth and the County Defendants under 42 U.S.C. § 1983 for injuries resulting from Hildreth's
unconstitutional conduct. Missel and Hildreth thereafter agreed that the action would “be discontinued, with prejudice as and
only to Defendant Michael Hildreth.” J.A. 92. Relevant to this appeal are Missel's claims against the County Defendants. Compl.
¶¶ 83–102. The district court dismissed these claims in their entirety on the ground that Missel had only alleged unconstitutional
conduct on the part of Hildreth individually and did not allege sufficient facts to state a claim for municipal liability pursuant
to Monell v. Department of Social Services of the City of New York, 436 U.S. 658, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978).
“We review de novo the grant of a motion to dismiss for failure to state a claim upon which relief can be granted” under Rule
12(b)(6). Harris v. Mills, 22 A.D. 379, 572 F.3d 66, 71 (2d Cir.2009). We accept all factual allegations in the complaint as
true, and draw all reasonable inferences in the plaintiff's favor. Id. However, legal conclusions in the complaint are not factual
allegations entitled to a presumption of truth, and a complaint that merely recites the elements of a cause of action without
factual support is insufficient. Ashcroft v. Iqbal, ––– U.S. ––––, 129 S.Ct. 1937, 1949, 173 L.Ed.2d 868 (2009); see also LaFaro
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v. N.Y. Cardiothoracic Group, PLLC, 570 F.3d 471, 475–76 (2d Cir.2009). The complaint is sufficient if the “well-pleaded
factual allegations” contained therein “plausibly give rise to [the plaintiff's] entitlement to relief.” Iqbal, 129 S.Ct. at 1950.
[1] Under Monell, a municipality may not be held liable under § 1983 solely on a respondeat superior theory. Monell, 436 U.S.
at 691, 98 S.Ct. 2018. A plaintiff must prove that “policies or customs that [were] sanctioned” by the municipality led to the
alleged constitutional violation. Segal v. City of N.Y., 459 F.3d 207, 219 (2d Cir.2006) (citing Monell, 436 U.S. at 694, 98 S.Ct.
2018). We agree with the district court that Missel has made no factual allegations that would support a plausible inference that
the County of Monroe's “policies” or “customs” caused Hildreth's violations of Missel's rights. First, although Missel asserts that
Hildreth acted pursuant to Monroe County policies of “permitting deputies to publish false statements” and “targeting perceived
pedophiles ... for harassment,” the complaint contains no facts to support these claims. Compl. ¶¶ 96–98, 99–102. To allege
the existence of an affirmative municipal policy, a plaintiff must make factual allegations that support a plausible inference that
the constitutional violation took place pursuant either to a formal course of action officially promulgated by the municipality's
governing authority or the act of a person with policymaking authority for the municipality. Vives v. City of N.Y., 524 F.3d 346,
350 (2d Cir.2008) (citing Pembaur v. City of Cincinnati, 475 U.S. 469, 481, 106 S.Ct. 1292, 89 L.Ed.2d 452 (1986)). Missel
has made no allegation that any official policymaker or policymaking body took any action to establish either of the policies
he alleges. The allegations that Hildreth acted pursuant to a “policy,” without any facts suggesting the policy's existence, are
plainly insufficient. *546 See, e.g., Dwares v. City of New York, 985 F.2d 94, 100–02 (2d Cir.1993).
**2 Missel's most specific attempt to tie the County Defendants to Hildreth's actions is a claim that the County failed to train
Hildreth, in support of which the complaint alleges that the County Defendants “were on notice of defendant Deputy Hildreth's[ ]
propensity to abuse and misuse his power and authority” because there had been “prior complaints about his actions in the East
Rochester Police Department,” Compl. ¶ 86, and “other incidents involving defendant Hildreth of which plaintiffs [sic] are not
currently aware,” id. ¶ 88. But the complaint does not contain any factual allegations to support these conclusory and speculative
assertions; and the assertion that the County was aware of complaints about Hildreth for his conduct in past employment—“the
East Rochester Police Department”—does not provide a plausible basis for an inference that the County failed to give Hildreth
proper training as a County employee.
[2] Neither has Missel adequately alleged that his injuries resulted from a municipal policy or custom of “deliberate
indifference” to, or tacit approval of, Hildreth's conduct. A complaint states a § 1983 claim against a municipality if it plausibly
alleges that a municipal policymaker was “knowingly and deliberately indifferent to the possibility that its ... officers were
wont” to violate constitutional rights. Fiacco v. City of Rensselaer, 783 F.2d 319, 326 (2d Cir.1986). Such a complaint must
allege that “the need for more or better supervision ... was obvious,” but that the defendant “made no meaningful attempt” to
prevent the constitutional violation. Amnesty Am. v. Town of W. Hartford, 361 F.3d 113, 127 (2d Cir.2004) (quoting Vann v. City
of N.Y., 72 F.3d 1040, 1049 (2d Cir.1995)) (internal quotation marks omitted). Missel has made insufficient factual allegations
that the County Defendants were on notice of and took no action in response to Hildreth's conduct, or that Hildreth had a history
of such behavior that Defendants deliberately ignored. Moreover, rather than supporting an inference of Defendants' deliberate
indifference, the facts alleged in the complaint—including that the County began an immediate investigation of Hildreth the day
after Missel lodged a complaint against him with the Sheriff's Department, Compl. ¶¶ 36–41, successfully prosecuted Hildreth
for eavesdropping and official misconduct, id. ¶ 48, and fired him, id. ¶ 49—make it far more plausible that Hildreth acted
without authorization and without the knowledge of any municipal decisionmaker.
We conclude therefore that Missel's allegations against the County Defendants were not sufficient to state a claim for municipal
liability under Monell. The district court's dismissal of the complaint against the County Defendants was therefore proper. We
have considered Missel's remaining arguments and find them to be without merit.
For the foregoing reasons, the judgment of the district court is hereby AFFIRMED.
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All Citations
351 Fed.Appx. 543, 2009 WL 3617787
Footnotes
* The Honorable Roslynn R. Mauskopf, of the United States District Court for the Eastern District of New York, sitting
by designation.
End of Document © 2026 Thomson Reuters. No claim to original U.S. Government Works.
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2026 WL 704584
Only the Westlaw citation is currently available.
United States District Court, N.D. New York.
NAQUAN RUIZ, Plaintiff,
v.
OFFICER MARK, et al., Defendants.
No. 9:24-CV-0179 (LEK/PJE)
|
Filed 02/13/2026
Attorneys and Law Firms
APPEARANCES:
Naquan Ruiz, c/o Priscilla Ruiz, 70 Delaware Avenue, Apt. 111, Cohoes, New York 12047, Plaintiff pro se
Murphy Burns Groudine LLP, 407 Albany Shaker Road, Loudonville, New York 12211, Attorney for defendant, OF COUNSEL:
STEPHEN M. GROUDINE, ESQ.
Naquan Ruiz, Cohoes, NY, Pro Se.
Stephen M. Groudine, Murphy Burns Groudine LLP, Loudonville, NY, for Defendant Rensselaer County.
REPORT - RECOMMENDATION AND ORDER 1
Paul J. Evangelista U.S. Magistrate Judge
*1 Plaintiff pro se Naquan Ruiz (“plaintiff”), an inmate who was, at the time this action was commenced, in the custody of
the New York State Department of Corrections and Community Supervision (“DOCCS”), brings this action pursuant to 42
U.S.C. § 1983. 2 Plaintiff alleges that defendants Officer Mark, Kitchen Staff Worker Arthur, and Renssalaer County violated
his constitutional rights under the First and Fourteenth Amendments. See Dkt. No. 9 at 1-6. 3 Presently before the Court is
defendant Renssalaer County's motion for summary judgment pursuant to Federal Rule of Civil Procedure (“Fed. R. Civ. P.”)
56. See Dkt. No. 20. 4 For the following reasons, it is recommended that defendant's motion be granted.
I. Facts
In support of their motion, Renssalaer County filed a Statement of Material Facts. See Dkt. No. 20-8. As will be discussed
below, plaintiff failed to properly respond to Renssalaer County's Statement of Material Facts. See Dkt. No. 24.
A. N.D.N.Y. Local Rule 56.1
N.D.N.Y. Local Rule 56.1(b) requires that a party opposing summary judgment file a response to the movant's Statement
of Material Facts, “admitting and/or denying each of the movant's assertions in a short and concise statement, in matching
numbered paragraphs.” “The Court may deem admitted any properly supported facts set forth in the Statement of Material Facts
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that the opposing party does not specifically controvert.” Id. (emphasis omitted). Here, plaintiff filed a response to Renssalaer
County's motion for summary judgment. See generally Dkt. No. 24. However, plaintiff's submission is not properly responsive
to Renssalaer County's Statement of Material Facts. Although plaintiff's response does admit or deny Renssalaer County's
“assertions in a short and concise statement, in matching numbered paragraphs,” plaintiff also reiterates the facts from the
complaint and disputes the factual contentions contained in Renssalaer County's declarations. N.D.N.Y. L.R. 56.1(b); see Dkt.
No. 24 at 3-7. Further, in other parts of plaintiff's response, he does not cite to the record for the facts he sets forth, in violation
of Local Rule 56.1(a). See Dkt. No. 24 at 3-7; see also N.D.N.Y. L.R. 56.1(a)(“Each fact listed shall set forth a specific citation
to the record where the fact is established.).
*2 The Court is not required to “perform an independent review of the record to find proof of a factual dispute.” Prestopnik v.
Whelan, 253 F. Supp. 2d 369, 371 (N.D.N.Y. 2003) (citing Amnesty Am. v. Town of W. Hartford, 288 F.3d 467, 470-71 (2d Cir.
2002)). Although the Local Rules provide that the undersigned shall deem admitted any facts that the nonmoving party fails
to “specifically controvert,” and pro se plaintiffs are expected to abide by the Local Rules, pro se plaintiffs are also afforded
special solicitude in this District and Circuit. See N.D.N.Y. L.R. 56.1(b); see also Treistman v. Fed. Bureau of Prisons, 470
F.3d 471, 477 (2d Cir. 2006) (per curiam). Accordingly, in deference to plaintiff's pro se status, the Court will independently
review the record when evaluating Renssalaer County's motion for summary judgment, and “treat [plaintiff's] opposition as a
response to” Renssalaer County's Statement of Material Facts. Robinson v. Mirza, No. 9:21-CV-1322 (DNH/CFH), 2024 WL
4464280, at *7 (N.D.N.Y. July 30, 2024), report and recommendation adopted sub nom. Robinson v. Mizra, No. 9:21-CV-1322,
2024 WL 4249222 (N.D.N.Y. Sept. 20, 2024) (citing Johnson v. Lew, No. 1:13-CV-1072 (GTS/CFH), 2017 WL 3822047, at
*2 (N.D.N.Y. Aug. 30, 2017)) (“Out of special solicitude to [the p]laintiff as a pro se civil rights litigant ... the Court will treat
his opposition as a response to [the d]efendant's [ ]Statement ....”); see also Perry v. Ogdensburg Corr. Fac., No. 9:10-CV-1033
(LEK/TWD), 2016 WL 3004658, at *1 (N.D.N.Y. May 24, 2016) (“[A]lthough [p]laintiff failed to respond to the statement of
material facts filed by [d]efendants as required under Local Rule[s], the Court would invoke its discretion to review the entire
record when evaluating the parties’ respective [m]otions for summary judgment.”). 5
B. Undisputed Facts
On or about, December 14, 2023, plaintiff learned that the Renssalaer County Jail “had pork meatballs in the ... kitchen from
fellow inmates,” Tinsbee and McWhite, “who worked in the kitchen.” Dkt. No. 20-8 at 1-2; see Dkt. No. 24 at 3-4. Upon
realizing that the jail was serving pork meatballs, Tinsbee and McWhite promptly informed then-Food Service Manager Art
Simard (“Simard”) “that Muslims could not eat pork meatballs for religious reasons” and the kitchen could not serve this food.
Id. (citing Dkt. No. 20-7 at 1); see Dkt. No. 24 at 5.
On December 21, 2023, plaintiff filed a “ ‘Grievance Step-1 Informal Resolution Form’ ... alleging that Muslim inmates were
unknowingly served pork meatballs.” Dkt. No. 20-8 at 3 (citing Dkt. No 20-4); see Dkt. No. 24 at 7. On December 22, 2023,
plaintiff filed a formal grievance. See id. (citing Dkt. No 20-5); see Dkt. No. 24 at 7. On December 21, 2023, “[a]fter receipt
of the ‘Grievance Step-1 Informal Resolution Form’ ... then-Lieutenant Eric Morin initiated an investigation into the animal
composition of the meatballs served to the inmates.” Id. (citing Dkt. No 20-3 at 1); see Dkt. No. 24 at 7.
Richard Tutunjian (“Tutunjian”) has worked in the Rensselaer County Jail kitchen for the past twenty-five years and is “the
current food service manager.” Dkt. No. 20-8 at 2 (citing Dkt. No. 20-7 at 1); see Dkt. No. 24 at 4. On December 14, 2023,
Tutunjian was working in the Rensselaer County Jail kitchen as a cook. See id. (citing Dkt. No. 20-7 at 1); Dkt. No. 24 at 4.
Tinsbee and McWhite were also working on the kitchen staff that day. See id. (citing Dkt. No. 20-7 at 1); Dkt. No. 24 at 5.
“[P]laintiff did not, and still does not, have any personal knowledge as to the workings of the kitchen at the Rensselaer County
Jail or what is served to the inmates.” Dkt. No. 20-8 at 1 (citing Dkt. No. 20-2 at 80, 82, 127); see Dkt. No. 24 at 3. Plaintiff
has never worked in the Rensselaer County Jail kitchen. See Dkt. No. 24 at 3. “Other than this one reported allegation of pork-
based meatballs allegedly being served in December 2023, no inmate has ever filed a formal grievance or complaint about the
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animal content of the meatballs served at the Rensselaer County Jail.” Dkt. No. 20-8 at 3 (first citing Dkt. No. 20-7 at 2, then
citing Dkt. No. 20-3 at 2); see Dkt. No. 24 at 6.
C. Plaintiff's Facts
*3 Plaintiff is of Mulsim faith. See Dkt. No. 20-2 at 29-32. The Koran provides that Muslims are “not supposed to consume
[pork], touch or assist anybody in consuming or touching [pork]. And that the only way to consume [pork] is if you're on the
brink of starvation and you have no livestock. Other than that it's not to be consumed.” Id. at 74.
Plaintiff asserts that all correctional facilities are prohibited from serving pork or food with pork additives. See Dkt. No. 20-2
at 61-62. However, Muslim inmates at the Renssalaer County Jail are not provided specific meals or a special diet; rather, all
inmates are served the same food. See id. at 62-63, 84-85. The Rensselaer County Jail only provides special meals to inmates
that suffer from diabetes or request Kosher meals. See id. at 63, 97. Plaintiff claims that there were no standards or policies as
to whether pork would or would not be served to the inmates at the Rensselaer County Jail. See id. at 98.
On December 15, 2023, 6 Tinsbee and McWhite, informed plaintiff that the Rensselaer County Jail kitchen was ordering and
“serving pork-based meatballs in substitution of chicken and beef meatballs when the stock got low.” Dkt. No. 9 at 3; Dkt. No.
20-2 at 80-83. Plaintiff believes that as of December 15, 2023, the Renssalaer County Jail had been serving pork meatballs for
four months. See id. Dkt. No. 20-2 at 80-83; Dkt. No. 24 at 10. Contradictorily, plaintiff testified that Tinsbee and McWhite
told him they didn't know how long the Rensselaer County Jail served pork meatballs prior to December 15, 2023. See Dkt.
No. 20-2 at 82-83. However, plaintiff claims that Tinsbee and McWhite told him that pork meatballs were served for as long as
they had been working in the kitchen. See id. Plaintiff also testified that Tinsbee and McWhite told him that the officer working
in the kitchen on December 14, 2023, was “threatened to - - either cook it or get ... fired.” Id. at 129. Plaintiff claims that after
Tinsbee and McWhite learned of the pork meatballs, Kitchen Staff Worker Arthur (“Arthur”) was “confronted about inmates
having religious beliefs and that the consumption of pork was against their religious beliefs,” to which Aurthur replied, “[w]hat
they don't know won't hurt them.” Dkt. No. 9 at 3; Dkt. No. 24 at 10.
Plaintiff requested to file a grievance with Officer Mark but was denied. See Dkt. No. 9 at 3; Dkt. No. 24 at 10. Officer Mark
told plaintiff, “I eat in the kitchen here and they don't serve no pork here.” Id.; see Dkt. No. 20-2 at 101; Dkt. No. 24 at 10.
Plaintiff then requested to speak to a sergeant. See id. Upon this request, Officer Mark ordered plaintiff to “lock-in or [he]
[would] call a code and plaintiff would receive a misbehavior report.” Id.; see Dkt. No. 20-2 at 99-102; Dkt. No. 24 at 10.
Shortly thereafter, a fellow inmate and the sergeant provided plaintiff with grievance forms. See Dkt. No. 9 at 3; Dkt. No. 20-2
at 103-04. Plaintiff filled out the grievance form and placed one copy in the grievance mailbox and mailed a second copy to Lt.
Morin. See id. On December 22, 2023, Lt. Morin responded to plaintiff's grievance and acknowledged that pork was ordered
and served by the Rensselaer County Jail kitchen. See id; Dkt. No. 20-2 at 85-86; Dkt. No. 24 at 10. Plaintiff claims that Lt.
Morin apologized and stated, “We're sorry. We're going to change ... the menu, and it won't happen again.” Dkt. No. 20-2 at
86; see Dkt. No. 20-2 at 92-95.
*4 Plaintiff also states that he knew the meatballs being served were pork because there were two kinds of meatballs,
identifiable by their size and color, and one kind of meatball gave him a stomachache. See id. at 90-91. After this issue was
brought to the prison's attention, the Rensselaer County Jail kitchen changed the meatballs that they served to the inmates. See
Dkt. No. 20-2 at 84. Plaintiff knows the kind of meatballs being served changed based on the color of the meatballs and that the
prison staff gave him “new forms that said they were ordering ... soy meatballs with turkey and chicken and no pork in it.” Id.
Plaintiff explains that consuming pork meatballs violated his Muslim beliefs. See Dkt. No. 9 at 2. Each time a Muslim individual
consumes pork, their prayers are invalidated for forty days. See id.; Dkt. No. 2 at 5. Plaintiff asserts that meatballs were served in
the Rensselaer County Jail twice every ten days. See Dkt. No. 20-2 at 75, 79-80. Plaintiff states that he was served the same kind
of meatballs the entire time he was incarcerated at the Rensselaer County Jail. See id. at 130. By his math, plaintiff claims he
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was served pork meatballs twenty-four times over the course of four months, and as a result, plaintiff's prayers were invalidated
for 960 days. See id. at 75; Dkt. No. 9 at 2.
Plaintiff has no additional knowledge of how the Rensselaer County Jail kitchen operates or how the jail orders food. See Dkt.
No. 20-2 at 127-28. He has “never been in the mess hall.” Id. at 127. No other individuals told him how long they were serving
pork meatballs in the Rensselaer County Jail. See id. at 131. He is not aware of any other incidents where pork meatballs were
served at the Rensselaer County Jail. See id. at 128. However, he was told that the Rensselaer County Jail ordered pork meatballs
and had them in the kitchen freezer as of the December 14, 2023, incident. See id. at 132.
Attached to plaintiff's amended complaint are the labels from three packages of meatballs that he claims came from the
Rensselaer County Jail kitchen and contain pork or pork additives. See Dkt. No. 9 at 8-10. The third food label has markings
stating, “10 LB. MEATBALL BF PORK” and “RENSSALAER COUNTY JAIL.” Id. at 10.
D. Defendant's Facts
“On or about December 14, 2023, the [Rensselaer County] Jail ran out of non-pork-based meatballs.” Dkt. No. 20-8 at 2 (citing
Dkt. No. 20-7 at 1). Upon running out of non-pork-based meatballs, Simard “suggested that the kitchen use the employee-
only pork-based meatballs to serve the inmates their meal.” Id. (citing Dkt. No. 20-7 at 1). Tinsbee and McWhite “promptly
informed [ ] Simard that Muslims could not eat pork for religious reasons.” Id. (citing Dkt. No. 20-7 at 1). “In response to
this information, Mr. Simard immediately rejected his initial idea of serving the pork meatballs and instead left the Rensselaer
County Jail and purchased meatballs that did not contain pork from US Foods in Clifton Park, New York.” Id. (citing Dkt. No.
20-7 at 1). “Tutunjian personally observed and participated in the preparation of the newly purchased non-pork meatballs for
the ‘non-pork’ eating inmates, including the plaintiff, on December 14, 2023.” Id. (citing Dkt. No. 20-7 at 2).
“There is no pattern, practice, procedure, or custom at the Rensselaer County Jail of serving Muslim inmates pork-based
meatballs.” Dkt. No. 20-8 at 3 (first citing Dkt. No. 20-7 at 2, then citing Dkt. No. 20-3 at 2). “Simard's one-time idea to
serve pork meatballs to the inmate population was rejected before any known non-pork-eating inmates were ever served pork
meatballs, including the plaintiff.” Id. (first citing Dkt. No. 20-7 at 2, then citing Dkt. No. 20-3 at 2). Tinsbee, McWhite, and
plaintiff do not “know of any other prior suggestion by the kitchen staff to serve pork meatballs to the inmate population besides
the one instance on December 14, 2023.” Id. at 1 (citing Dkt. No. 20-2 at 81-83). “At no point in his 25-year career with the
County [did Tutunjian] ever observe[ ] any employee of the Rensselaer County Jail's kitchen knowingly serve inmates, who are
known not to eat pork for religious reasons, pork-based meatballs.” Id. at 2 (citing Dkt. No. 20-7 at 1).
*5 Lt. Morin's “investigation resulted in a finding that no pork products had been served to the plaintiff or any other Muslim
inmates. The results of that investigation were memorialized in a Grievance Investigation Form Part I and Part II that were
completed by [Lt. Morin].” Dkt. No. 20-8 at 3-4 (citing Dkt. No. 20-3 at 2).
II. Arguments
A. Defendant's Arguments
Renssalaer County argues that they are entitled to summary judgment as matter of law because plaintiff has failed to establish
any constitutional violation or a factual basis to assert a Monell claim. See Dkt. No. 20-9 at 2-6 (citing Monell v. Dep't of
Soc. Servs., 436 U.S. 658 (1978)). First, Renssalaer County argues that plaintiff has not demonstrated his constitutional rights
were violated. See Dkt. No. 20-9 at 3-4. Renssalaer County asserts that “plaintiff has failed to come forward with any specific
evidence of when he was allegedly served and ingested meatballs he claims contained pork in violation of his religious beliefs.”
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Dkt. No. 20-9 at 3. Renssalaer County contends that plaintiff's allegations are “speculative.” Id. at 4. Renssalaer County further
states that plaintiff “conceded at his deposition that he had no personal knowledge as to what occurred in the Jail's kitchen” and
fails to submit any admissible evidence to refute the sworn declarations of Chief of Corrections Eric Morin or Food Service
Manager Richard Tutunjian. Id. at 3-4 (citing Dkt Nos. 20-2, 20-3, 20-7); see Dkt. No. 25 at 2-3.
Second, Renssalaer County argues that plaintiff has not satisfied Monell because “there is no evidence of a policy, practice,
procedure, or custom implemented by the County that resulted in the plaintiff being served pork meatballs during his stay at
Rensselaer County Jail because no such policy, practice, procedure, or custom ever existed.” Dkt. No. 20-9 at 5; see Dkt. No.
25 at 3.
B. Plaintiff's Arguments
In opposition to Renssalaer County's motion, plaintiff reasserts that his First Amendment right to freedom of assembly was
violated because he was served pork meatballs while incarcerated at the Renssalaer County Jail. see Dkt. No. 24 at 10.
III. Legal Standards
On review of defendants’ motion for summary judgment, the facts will be related in the light most favorable to plaintiff as the
nonmoving party. See Rattner v. Netburn, 930 F.2d 204, 209 (2d Cir. 1991) (“In assessing the record ... to determine whether
there is a genuine issue as to any material fact, the court is required to resolve all ambiguities and draw all factual inferences
in favor of the party against whom summary judgment is sought.”).
A motion for summary judgment may be granted “if the movant shows that there is no genuine dispute as to any material
fact and the movant is entitled to judgment as a matter of law.” FED. R. CIV. P. 56(a). The moving party bears the burden of
demonstrating the absence of disputed material facts by citing to “the record, including depositions, documents, electronically
stored information, affidavits or declarations, stipulations (including those made for purposes of the motion only), admissions,
interrogatory answers, or other materials.” FED. R. CIV. P. 56(c). A fact is material if it “might affect the outcome of the suit,”
as determined by the governing substantive law; a “dispute about a material fact is ‘genuine’ ... if the evidence is such that a
reasonable jury could return a verdict for the nonmoving party.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).
*6 If the moving party meets this burden, the nonmoving party “must set forth specific facts showing that there is a genuine
issue for trial.” Anderson, 477 U.S. at 248 (citation omitted); see Wright v. Goord, 554 F.3d 255, 266 (2d Cir. 2009). “When
ruling on a summary judgment motion, the district court ... must resolve all ambiguities and draw all reasonable inferences
against the movant.” Dallas Aerospace, Inc. v. CIS Air Corp., 352 F.3d 775, 780 (2d Cir. 2003) (citation omitted). Still, the
nonmoving party cannot rely on “mere speculation or conjecture as to the true nature of the facts to overcome a motion for
summary judgment.” Knight v. U.S. Fire Ins. Co., 804 F.2d 9, 12 (2d Cir. 1986) (citing Quarles v. Gen. Motors Corp., 758 F.2d
839, 840 (2d Cir. 1985) (per curiam)); see also Hicks v. Baines, 593 F.3d 159, 166 (2d Cir. 2010) (“[M]ere conclusory allegations
or denials ... cannot by themselves create a genuine issue of material fact where none would otherwise exist.”) (citation omitted).
Where a party seeks judgment against a pro se litigant, or a pro se litigant moves for summary judgment, the Court must afford
the pro se litigant special solicitude. See Treistman, 470 F.3d at 477. As the Second Circuit explained,
[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
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should not “excuse frivolous or vexatious filings by pro se litigants,” and that pro se status “does not exempt a party from
compliance with relevant rules of procedural and substantive law[ ]” ... ..
Id. (citations 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.”) (citations and quotation marks omitted).
IV. Discussion
A. Monell
“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.
*7 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 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). “[A] plaintiff must demonstrate that through its deliberate conduct, the municipality was the
moving force behind the injury alleged.” Agosto v. New York City Dep't of Educ., 982 F.3d 86, 98 (2d Cir. 2020) (quoting Bd.
of Cty. Comm'rs of Bryan Cty., Okla. v. Brown, 520 U.S. 397, 404 (1997)).
To succeed on any municipal liability claim under Monell, the plaintiff must first establish that there was an “underlying
constitutional violation.” Rakchi v. City of New York, 800 F. Supp. 3d 494, 501 (E.D.N.Y. 2025) (quoting Henry-Lee v. City of
New York, 746 F. Supp. 2d 546, 567 (S.D.N.Y. 2010) (citing Segal v. City of New York, 459 F.3d 207, 219 (2d Cir. 2006))) (“As
provided by the Second Circuit, an underlying constitutional violation is ‘a prerequisite to municipal liability under Monell.’
”). Here, plaintiff alleges that his First Amendment right to freedom of exercise of religion was violated because the Renssalaer
County Jail served pork meatballs in violation of his Muslim faith. See generally Dkt. No. 9.
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“Prisoners have long been understood to retain some measure of the constitutional protection afforded by the First Amendment's
Free Exercise Clause.” Bryant v. Miller, No. 9:18-CV-0494 (GTS/CFH), 2019 WL 5273210, at *7 (N.D.N.Y. June 18, 2019),
report and recommendation adopted, No. 9:18-CV-0494 (GTS/CFH), 2019 WL 4267376 (N.D.N.Y. Sept. 10, 2019) (quoting
Ford v. McGinnis, 352 F.3d 582, 588 (2d Cir. 2003) (citing Pell v. Procunier, 417 U.S. 817, 822 (1974))). “However, due to the
unique concerns of the prison setting, prisoners’ free exercise rights must be balanced against the interests of prison officials
engaged in the complex duties of administering the penal system.” Id. (quoting Thomas v. Waugh, No. 9:13-CV-0321 MAD/
TWD, 2015 WL 5750945, at *9 (N.D.N.Y. Sept. 30, 2015) (citing Ford, 352 F.3d at 588)). “As such, a prison regulation or
individualized decision to deny a prisoner the ability to engage in a religious exercise is judged under a reasonableness test
less restrictive than that ordinarily applied [to burdens on fundamental rights]: a regulation that burdens a [prisoner's] protected
right passes constitutional muster if it is reasonably related to legitimate penological interests.” Id. (quoting Thomas, 2015 WL
5750945, at *9 (quoting Salahuddin v. Goord, 467 F.3d 263, 274 (2d Cir. 2006))) (internal quotation marks omitted).
“In order to establish a free exercise claim, a plaintiff must demonstrate ‘at the threshold that the disputed conduct substantially
burdens his sincerely held religious beliefs.’ ” Bryant, 2019 WL 5273210, at *7 (quoting Salahuddin, 467 F.3d at 274-75 (citing
Ford, 352 F.3d at 591)). “A belief is sincerely held where the plaintiff ‘sincerely holds a particular belief and whether the belief
is religious in nature.’ ” Id. (quoting Ford, 352 F.3d at 590). “Moreover, it is well-established that an inmate's ‘sincerely held
belief is substantially burdened where the state puts substantial pressure on an adherent to modify his behavior and to violate
his beliefs.’ ” Id. (quoting Thomas, 2015 WL 5750945, at *10 (quoting Jolly v. Coughlin, 76 F.3d 468, 477 (2d Cir. 1996))).
*8 The record is unclear as to whether the Renssalaer County Jail served pork meatballs on December 14, 2023. See Dkt. Nos.
9, 20-2, 20-3, 20-7, 20-8, 24 at 3-7. However, the undersigned concludes that it is not necessary to analyze whether plaintiff's
First Amendment free exercise rights were violated by being served pork meatballs because even assuming arguendo that
plaintiff's free exercise rights were violated, plaintiff has not alleged or satisfied Monell.
Plaintiff does not respond to Renssalaer County's Monell arguments. See generally Dkt. No. 24. Plaintiff has not pled or alleged
that his constitutional rights were violated due to an official Renssalaer County 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). Similarly, plaintiff does not refute the sworn declarations of Chief Morin or
Tutunjian that “[t]here is no pattern, practice, procedure, or custom at the Rensselaer County Jail of serving Muslim inmates
pork-based meatballs.” Dkt. Nos. 20-3 at 2, 20-7 at 2.
To the extent that pork meatballs were served to the general population at the Renssalaer County Jail on December 14, 2023,
plaintiff has not demonstrated that this was nothing more than a single isolated incident. “Unique, one-time events of the sort
we have here are simply not susceptible to Monell liability.” Arzu v. City of New York, No. 24-CV-6058 (CM), 2025 WL
437699, at *5 (S.D.N.Y. Feb. 7, 2025). “Proof of a single incident of unconstitutional activity is not sufficient to impose liability
under Monell, unless proof of the incident includes proof that it was caused by an existing, unconstitutional municipal policy[ ]
[that] can be attributed to a municipal policymaker.” Id. (quoting City of Okla. City v. Tuttle, 471 U.S. 808, 823-24 (1985));
Smith v. NYC Dep't of Corr., No. 18-CV-7018 (AT/OTW), 2019 WL 2473524, at *6 (S.D.N.Y. June 13, 2019), report and
recommendation adopted sub nom. Smith v. Warden of N. Infirmary Command, No. 18-CIV-7018 (AT/OTW), 2019 WL 2866729
(S.D.N.Y. July 3, 2019) (“Normally, a custom or policy cannot be shown by pointing to a single instance of unconstitutional
conduct by a mere employee of the municipality.”) (additional quotations and internal quotation marks omitted); Frith v. City of
New York, 203 F. Supp. 3d 386, 392 (S.D.N.Y. 2016) (dismissing a Monell claim alleging a one-time denial of treatment where
the plaintiff failed to identify any particular policy at issue).
Plaintiff also claims that the Rensselaer County Jail served pork meatballs for the four months leading up to December 14,
2023, and the entire time he was housed in the jail. See Dkt. No. 9 at 3; Dkt. No. 20-2 at 80-83; Dkt. No. 24 at 10. Affording
plaintiff due solicitude and reading his claim liberally, plaintiff could be arguing that the by serving pork meatballs for four
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months, Renssalaer County Jail had a policy or custom of serving pork meatballs to all inmates. However, plaintiff's claim is
a speculative conclusion with no further support. See Knight, 804 F.2d at 12 (citing Quarles, 758 F.2d at 840 (2d Cir. 1985);
Hicks, 593 F.3d at 166).
Plaintiff supports this allegation by referencing his personal observations of the meatballs he was served while incarcerated
at the Rensselaer County Jail and stating that Tinsbee and McWhite told him this information. See Dkt. No. 9 at 3; Dkt. No.
20-2 at 80-83, 90-91; Dkt. No. 24 at 10. However, plaintiff does not provide an affidavit from Tinsbee or McWhite attesting to
these facts and as stated above, plaintiff does not refute the declarations of Chief Morin or Tutunjian that “[t]here is no pattern,
practice, procedure, or custom at the Rensselaer County Jail of serving Muslim inmates pork-based meatballs.” Dkt. Nos. 20-3
at 2, 20-7 at 2. Similarly, plaintiff testified that (1) he doesn't know how the Rensselaer County Jail kitchen operates or how the
jail orders food; (2) he has “never been in the mess hall”; (3) no other individuals at the Rensselaer County Jail told him how
long the kitchen served pork meatballs; and (4) he is not aware of any other incident(s) where the Rensselaer County Jail served
pork meatballs. Dkt. No. 20-2 at 127-28, 131. Further, plaintiff conceded that “[he] did not, and still does not, have any personal
knowledge as to the workings of the kitchen at the Rensselaer County Jail or what is served to the inmates”; he never worked
in the Rensselaer County Jail kitchen; and “[o]ther than this one reported allegation of pork-based meatballs allegedly being
served in December 2023, no inmate has ever filed a formal grievance or complaint about the animal content of the meatballs
served at the Rensselaer County Jail.” Dkt. No. 20-8 at 1, 3; Dkt. No. 24 at 3, 6.
*9 Based on the foregoing, the undersigned concludes that has not established that the Renssalaer County Jail had a policy
of serving pork meatballs. See Johnson v. Brown, No. 9:09-CV-0002 (GTS/DEP), 2011 WL 1097864, at *1, 7 (N.D.N.Y.
Mar. 22, 2011) (granting the defendants’ motion for summary judgment where the “Plaintiff's only evidence establishing
the occurrence of the assault ... is his self-contradictory, incomplete deposition testimony that is wholly unsupported by the
record” and the defendants’ testimony, which was corroborated by documentary evidence, refuted the plaintiff's unsupported
testimony); see also Louis-Charles v. Baker, No. 9:16-CV-1417 (MAD/CFH), 2018 WL 5728054, at *10 (N.D.N.Y. July 30,
2018), report and recommendation adopted sub nom. Louis-Charles v. Barker, No. 9:16-CV-1417 (MAD/CFH), 2018 WL
4299982 (N.D.N.Y. Sept. 10, 2018) (granting summary judgment where the plaintiff “failed to produce evidence, aside from
his conclusory allegations”).
Finally, the undersigned notes plaintiff's allegation that Tinsbee and McWhite told him that the officer working in the kitchen
on December 14, 2023, was “threatened to - - either cook it or get ... fired.” Dkt. No. 20-2 at 129. 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).
Accordingly, the undersigned recommends that defendants’ summary judgment motion be granted because plaintiff has not
alleged or demonstrated that his constitutional rights were violated due to an official Renssalaer County 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).
V. Conclusion
WHEREFORE, for the reasons set forth herein, it is hereby:
RECOMMENDED, that defendants’ motion for summary judgment (Dkt. No. 20) be GRANTED; it is
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ORDERED, that the Clerk serve a copy of this Report-Recommendation and Order on all parties in accordance with Local
Rules. IT IS SO ORDERED.
Pursuant to U.S.C. § 636(b)(1) and Local Rule 72.1(c), the parties have fourteen 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. Roldan v. Racette, 984 F.2d 85, 89 (2d
Cir. 1993) (citing Small v. Secretary of Health and Human Servs., 892 F.2d 15 (2d Cir. 1989)); 28 U.S.C. § 636(b)(1); FED.
R. CIV P. 6(a), 6(e), 72. 7
All Citations
Slip Copy, 2026 WL 704584
Footnotes
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(c).
2 On September 3, 2024, plaintiff filed a Notice of Change of Address after his release from the Renssalaer County Jail.
See Dkt. No. 10.
3 Plaintiff initially sought to bring this complaint against the Renssalaer County Correctional Facility (“Renssalaer County
CF”), Sheriff Kyle Bourgault, Chief Higgitt, Lt. Morin, Lt. Sauer, Kitchen Staff Worker Alex, Kitchen Staff Worker
Jess, and Kitchen Staff Worker Lauren, however, on initial review, the Court sua sponte dismissed numerous claims
against these defendants pursuant to 28 U.S.C. § 1915(e)(2)(B) and 28 U.S.C. § 1915A(b). See Dkt. No. 11.
4 The undersigned notes that as of the time of defendant's filing, plaintiff has not identified Officer Mark or Kitchen Staff
Worker Arthur. See Dkt. No. 11 at 7-8. To date, neither Officer Mark or Kitchen Staff Worker Arthur have appeared
in this action.
5 The Court has provided plaintiff with copies of all unpublished cases cited within this Report-Recommendation and
Order.
6 The parties motion papers, plaintiff's deposition testimony, and the record generally refers to the “pork meatball incident”
as having occurred on either December 14, 2023, or December 15, 2023. The undersigned notes that regardless of the
date used, the parties are referring to the same incident giving rise to this lawsuit.
7 If you are proceeding pro se and are served with this Report-Recommendation and Order by mail, three additional
days will be added to the fourteen-day period, meaning that you have seventeen days from the date the Report-
Recommendation & 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).
End of Document © 2026 Thomson Reuters. No claim to original U.S. Government Works.
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Tanvir v. Tanzin, Not Reported in Fed. Supp. (2023)
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2023 WL 2216256
Only the Westlaw citation is currently available.
United States District Court, S.D. New York.
Muhammad TANVIR, Jameel Algibhah, and Naveed Shinwari, Plaintiffs,
v.
FNU TANZIN, et al., Defendants.
13-CV-6951 (RA)
|
Signed February 24, 2023
Attorneys and Law Firms
Ramzi Kassem, Naz Ahmad, Main Street Legal Services, Inc., Long Island City, NY, Baher Azmy, Seton Hall Law School
Center For Social Justice, Newark, NJ, Diala Shamas, Shayana Devendra Kadidal, Center for Constitutional Rights, New York,
NY, Erol Nazim Gulay, Jennifer R. Cowan, Robert N. Shwartz, William Mattessich, Debevoise & Plimpton, LLP, New York,
NY, for Plaintiff Muhammad Tanvir.
Baher Azmy, Seton Hall Law School Center For Social Justice, Newark, NJ, Erol Nazim Gulay, Jennifer R. Cowan, Robert
N. Shwartz, William Mattessich, Debevoise & Plimpton, LLP, New York, NY, Naz Ahmad, Ramzi Kassem, Main Street Legal
Services, Inc., Long Island City, NY, for Plaintiffs Jameel Algibhah, Naveed Shinwari.
Baher Azmy, Seton Hall Law School Center For Social Justice, Newark, NJ, Erol Nazim Gulay, Jennifer R. Cowan, Robert N.
Shwartz, Debevoise & Plimpton, LLP, New York, NY, Naz Ahmad, Main Street Legal Services, Inc., Long Island City, NY,
for Plaintiff Naveed Shinwari.
Sarah Sheive Normand, Jennifer Ellen Blain, United States Attorney Office, SDNY, New York, NY, for Defendant sJames
Comey, Christopher M. Piehota, “John” Tanzin, Sanya Garcia, John LNU, John Doe, Jeh C. Johnson, Francisco Artousa,
Michael Rutkowski, William Gale, John C. Harley, III, Steven LNU, Michael LNU, Gregg Grossoehmig, Weysan Dun, James
C. Langenberg, John Does 1-9, 11-13, John Doe 10.
OPINION & ORDER
RONNIE ABRAMS, United States District Judge:
*1 Plaintiffs Muhammad Tanvir, Jameel Algibhah, and Naveed Shinwari brought this action to remedy alleged violations of
their constitutional and federal statutory rights. Specifically, they allege that, in an effort to bolster intelligence gathering in the
aftermath of the terrorist attacks on September 11, 2001, agents of the Federal Bureau of Investigation (“FBI”) placed or kept
them on the Terrorist Screening Center's No Fly List in retaliation for their refusal to act as informants by spying on members
of Muslim communities, and in order to pressure them to reconsider. Plaintiffs claim that they refused to gather information
about their fellow Muslims because doing so would have contravened their sincerely held religious beliefs, and that the FBI
agents' efforts thus substantially burdened their religious exercise in violation of federal law.
The suit initially named agents of the federal government in their official capacities, and sought Plaintiffs' removal from the No
Fly List. Plaintiffs have since been removed from the No Fly List, and the sole remaining claims are against Defendant FBI agents
in their individual capacities for money damages available under the Religious Freedom Restoration Act, 42 U.S.C. § 2000bb,
et seq. (“RFRA”). Namely, Plaintiffs seek damages from Defendants FNU (“First Name Unknown”) Tanzin, Sanya Garcia,
Francisco Artousa, John LNU (“Last Name Unknown”), Steven LNU, John C. Harley III, Michael LNU, Gregg Grossoehmig,
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Weysan Dun, James C. Langenberg, and John Does 1–6. 1 Now before the Court is Defendants' renewed motion to dismiss the
remaining claims in the Amended Complaint for failure to state a claim and under the doctrine of qualified immunity.
The Court is sympathetic to Plaintiffs, who claim that, despite never posing a threat to aviation security, they were, for years,
unable to visit ailing loved ones outside of the United States, burdened financially with the loss of job opportunities which
required them to travel, and repeatedly forced to endure the basic indignity of being denied boarding passes for flights to which
they had legitimately purchased tickets. Accepting their allegations as true, Plaintiffs were subjected to this treatment by way
of the FBI's misuse of the No Fly List simply because they were Muslim, and because they refused to spy on other members
of their faith.
*2 Nevertheless—and notwithstanding varied criticisms of the doctrine of qualified immunity, see, e.g., Baxter v. Bracey, 140
S. Ct. 1862 (2020) (Thomas, J., dissenting from denial of certiorari); Kisela v. Hughes, 138 S. Ct. 1148, 1162 (2018) (Sotomayor,
J., dissenting)—the Court is required to apply the law faithfully to the issues before it. Accordingly, for the reasons that follow,
Defendants are entitled to qualified immunity and the motion to dismiss is granted.
BACKGROUND
The allegations of the tactics undertaken by the FBI giving rise to this action are by now familiar to counsel and the parties.
In the main, Plaintiffs allege that they were “among the many innocent people” who were “swept up” in the years since 9/11
by the federal government's “secretive watch list dragnet.” Compl. ¶ 4. Plaintiffs claim that the process for placing individuals
on the No Fly List, which is maintained by the Terrorist Screening Center (“TSC”), id. ¶ 40–41, is “shrouded in secrecy and
ripe for abuse,” id. ¶ 63. “To be properly placed on the No Fly List, an individual must be a ‘known or suspected terrorist’
” and “there must be some additional ‘derogatory information’ demonstrating that the person ‘poses a threat of committing a
terrorist act with respect to an aircraft.’ ” Id. ¶ 42. Despite never posing a threat—or even being accused of posing a threat—to
aviation safety, Plaintiffs allege that they were each either placed or kept on the List merely for refusing to become informants
for the FBI against fellow Muslims. Id. ¶¶ 8–9, 65–67, 68, 118, 145. They urge that their inclusion on the No Fly List was thus
the product of abusive investigative practices by the FBI which violated their clearly established constitutional and statutory
rights, including under RFRA. Id. ¶¶ 205–15.
I. Plaintiff Muhammad Tanvir
Muhammad Tanvir is a lawful permanent resident of the United States who last resided in Queens, has family in Pakistan, and
is Muslim. Id. ¶¶ 14, 68. Tanvir interacted with Defendants FNU Tanzin, John Doe 1, John Doe 2/3, Garcia, and John LNU. Id.
¶¶ 68–113. He was first approached by Defendants Tanzin and John Doe 2/3 in February 2007 at his workplace in the Bronx,
and was asked about a former acquaintance who they claimed had attempted to enter the country illegally. Id. ¶ 69. Two days
later, Tanvir was contacted by Tanzin who asked him “what people in the Muslim community generally discussed, and whether
there was anything that he knew about within the American Muslim community that he ‘could share’ with the FBI.” Id. ¶ 70.
Tanvir told Tanzin that “he did not know of anything that would concern law enforcement.” Id.
Initially, Tanvir's life continued unaltered following these early interactions with the FBI. He was able to fly to Pakistan in July
2008, for instance, and to return in December 2008. Id. ¶ 71. But after returning from Pakistan, Tanvir alleges that his passport
was confiscated by government officials, he was detained for five hours at the airport, and was given an appointment with the
Department of Homeland Security (“DHS”) to retrieve his passport. Id. Before the date of that meeting, however, Tanzin and
John Doe 2/3 came to his new workplace in Queens and asked him to accompany them to the Manhattan office of the FBI.
Id. ¶¶ 73–74.
There, he was brought to an interrogation room and subjected to questioning about terrorist training camps near the village
where he grew up, whether he had trained with the Taliban, and whether he would work as a government informant in Pakistan or
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Afghanistan. Id. ¶¶ 75–78. To incentivize Tanvir to work as an informant, the agents offered him financial assistance, including
for his parents in Pakistan so that they could go on religious pilgrimage to Saudi Arabia; nevertheless, Tanvir refused, telling
them that he was “afraid” and that working as a “United States government informant” in Pakistan would be “very dangerous.”
Id. ¶¶ 76–78.
*3 The next day, Tanvir alleges that Tanzin called and “threatened” him, saying he would “authorize the release of [Tanvir's]
passport if [he] agreed to become an informant,” but that, if he declined, he “would be deported if he went to the airport to pick
up his passport.” Id. ¶ 79. Tanvir again refused, and was able to retrieve his passport notwithstanding the threats of deportation.
Id. ¶¶ 79–80. In the weeks that followed, Tanvir was repeatedly called by agents who urged him to become an FBI informant.
Id. ¶¶ 82–84. Time and again, Tanvir refused. Id. Tanzin and John Doe 2/3 eventually asked him to take a polygraph test and
threatened to arrest him if he declined. Id. ¶¶ 86–87. He declined, and the agents left without placing him under arrest. Id.
In key part, Tanvir alleges that he repeatedly refused to serve as an FBI informant because he had “sincerely held religious and
personal objections to spying on innocent members of his community,” and that the agents had placed “significant pressure on
[him] to violate his sincerely held religious beliefs.” Id. ¶ 84. Speaking to Tanvir's religious objections more generally, as well
as those of the other Plaintiffs, the Amended Complaint alleges that:
Many American Muslims, like many other Americans, and many followers of other religions, have
sincerely held religious and other objections against becoming informants in their own communities,
particularly when they are asked to inform on the communities as a whole rather than specific individuals
reasonably suspected of wrongdoing. Acting as an informant would require them to lie and would
interfere with their ability to associate with other members of their communities on their own terms. For
these American Muslims, the exercise of Islamic tenets precludes spying on the private lives of others
in their communities.
Id. ¶ 65.
After his interactions with Defendants Tanzin and Doe 2/3, Tanvir discovered that he had been placed on the No Fly List. “Upon
information and belief,” he alleges that he was “placed on the No Fly List ... because he refused to become an informant against
his community and refused to speak or associate further with the agents.” Id. ¶ 90. In October 2010, while traveling for work, he
made plans to fly from Atlanta to New York City but was told by an airline employee that he was unable to fly when he tried to
check in for the flight. Id. ¶ 91. FBI agents then approached him at the airport, told him that he should contact the agents in New
York with whom he had previously spoken, and escorted him to a bus station in Atlanta, where Tanvir was forced to take a 24-
hour bus ride to return home to New York. Id. ¶ 93. Two days later, Tanvir was contacted by Defendant Garcia, who told him that
his name could be removed from the No Fly List if he would agree to speak with her and answer her questions. Id. ¶ 94. Tanvir
insisted that he had repeatedly answered the FBI's questions and that he did not wish to speak with agents of the FBI again. Id.
Tanvir next purchased airline tickets when he was trying to visit his sick mother in Pakistan in November 2011. Id. ¶¶ 98–100.
The day before his scheduled departure, however, Garcia contacted him again, informing him that he would not be permitted
to fly the next day because he had “hung up on her” in October 2010. Id. She again insisted that he would not be able to fly
without answering her questions. Id. Tanvir reluctantly agreed to meet Garcia and John LNU at a restaurant in Queens, where
he was again questioned about his family, religion, and politics; Tanvir answered their inquiries, believing that he needed to do
so in order to be able to fly to Pakistan. Id. ¶ 101. Although Garcia initially told Tanvir that she would obtain a one-time waiver
to allow him to travel because he had answered the FBI's questions, she called the next day to inform him that he would not
be able to travel after all. Id. ¶ 102. Instead, Garcia now insisted that her offer of a one-time waiver was contingent on Tanvir
going to FBI headquarters to take a polygraph test. Id. ¶ 104. He cancelled his flight to Pakistan thereafter. Id.
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*4 Tanvir again bought a ticket to see his mother in Pakistan in December 2011, after engaging counsel to file a Traveler
Redress Inquiry Program (“TRIP”) complaint, but was again denied boarding because he was on the No Fly List. Id. ¶ 109. Tanvir
learned that, despite his TRIP complaint, no changes or corrections would be made to the List, and appealed that determination.
Id. ¶¶ 110, 112. In November 2012, he again purchased a ticket to travel to Pakistan, and once again was denied boarding. Id.
¶ 113. This time, Tanvir was approached by an FBI agent and told that he would need to meet once again with Garcia in order
to be removed from the List. Id.
On March 28, 2013, Tanvir finally received a response to his TRIP appeal indicating that the government had “made updates”
to its records based on his complaint. Id. ¶ 114. Tanvir then successfully flew to Pakistan from New York on June 27, 2013.
Id. ¶ 115. He did not receive official confirmation of his removal from the No Fly List, however, until June 2015, after filing
the present action. Dkt. 92.
II. Plaintiff Jameel Algibhhah
Jameel Algibhah is a United States citizen, resides in the Bronx, has a wife and three daughters in Yemen, and is Muslim.
Compl. ¶¶ 15, 118. He alleges that he interacted with Defendants Artousa, John Doe 4, and John Doe 5 between 2009 and 2013.
Id. ¶¶ 119–40. Artusa and John Doe 4 first tried to recruit Algibhah to serve as an informant in Muslim communities, including
in his own neighborhood, by approaching him at his workplace and asking him to accompany them to an FBI van. Id. ¶¶ 119–
20. After Aglibhah answered their initial questions, they specifically asked that he infiltrate a mosque in Queens, and that he act
like an “extremist” in online Islamic forums. Id. ¶ 121. Algibhah claims he refused because doing so violated his sincerely held
religious and personal beliefs and would have required him to act in a deceptive manner in his community. Id. ¶ 122; see also
id. ¶ 65 (alleging there are “Islamic tenets preclud[ing] spying on” fellow Muslims). Upon information and belief, he alleges
that, in retaliation for his refusal to act as an informant for the FBI, and in order to pressure him to reconsider his decision, he
was placed on the No Fly List shortly after this encounter. Id. ¶ 124.
Algibhah attempted to visit his wife and daughters in Yemen in May 2010, but was denied a boarding pass at JFK International
Airport and told that he was not permitted to fly. Id. ¶ 125. Algibhah filed a TRIP complaint, and attempted again to fly to
Yemen in September of the same year, but was again denied a boarding pass. Id. ¶¶ 126–27.
In June 2012, after seeking assistance from his elected representatives, Algibhah was stopped by Artusa and John Doe 5 who
allegedly said: “Congressmen can't do shit for you; we're the only ones who can take you off the list.” Id. ¶ 131. Artusa told
Algibhah that he would need to answer more questions from the FBI, and that if he chose to cooperate, he would be removed
from the No Fly List. Id. After answering their questions, however, Algibhah was told that in order to be removed from the List,
he would need to work as an informant, including by going on Islamic websites and “act[ing] extremist.” Id. ¶ 133. Algibhah
retained counsel, to whom Artusa reiterated the same offer: Algibhah's name could be removed from the List, but only if he
would agree to go onto Islamic websites to seek out “extremist” discussions and undertake “aggressive information gathering.”
Id. ¶ 136. When Artusa called Algibhah directly once again in May 2013, Algibhah directed him to his counsel. Id. ¶ 139–40.
*5 Like Tanvir, Algibhah did not receive confirmation that he had been removed from the No Fly List until June 2015, after
filing this action. Dkt. 92.
III. Plaintiff Naveed Shinwari
Naveed Shinwari is a lawful permanent resident living in Connecticut, has family in Afghanistan, and is Muslim. Id. ¶¶ 16,
145. He alleges that he interacted with Defendants Steven LNU, Harley, Grossoehmig, Michael LNU, John Doe 6, Dun, and
Langenberg in 2012. Id. ¶¶ 146–64. In February 2012, Shinwari was traveling with his mother from Kabul, Afghanistan to
Omaha, Nebraska, where he was living at the time, when he was denied boarding on his connecting flight departing from Dubai
and told that he needed to contact the U.S. embassy before he would be permitted to fly. Id. ¶ 146.
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The next day, Shinwari met with Defendants Steven LNU and Harley at the U.S. consulate in Dubai, where he was taken to an
interrogation room and questioned for several hours about whether he had visited any “training camps” while in Afghanistan
and whether he was associated with “bad guys.” Id. ¶ 148. He was also questioned about his mosque and religious activities,
asked to take a polygraph test, and told that doing so would allow him to return home to Nebraska. Id. ¶ 149. Several days
later, Shinwari was permitted to fly after purchasing new tickets on a U.S.-based airline. Id. ¶¶ 150–51. After landing at Dulles
International Airport in Virginia, Shinwari was interrogated for two hours by Defendants Michael LNU and Grossoehmig, who
said that they needed to “verify” what he had told the other agents in Dubai. Id. ¶¶ 152–53. After he answered their questions,
Shinwari was released and flew home to Omaha. Id. ¶ 154.
The next month, in March 2012, Defendants Michael LNU and John Doe 6 appeared at Shinwari's home, and again questioned
him about his religion and personal background. Id. ¶ 155. This time, the agents said that they knew Shinwari was then
unemployed, and offered to pay him to work as an informant with the FBI. Id. ¶ 156. Based on his sincerely held religious and
personal beliefs, Shinwari alleges, he declined the invitation to work as an informant. Id. ¶¶ 156–57; see also id. ¶ 65 (asserting
that many Muslims “have sincerely held religious and other objections against becoming informants in their own communities”).
When Shinwari tried to board a flight from Omaha to Orlando for temporary work later that month, he was denied a boarding
pass and approached by police officers who told him that he was on the No Fly List. Id. ¶ 158. His placement on the List caused
Shinwari significant financial hardship, as he was unable to take the temporary job, and was also prevented from visiting his
family in Afghanistan. Id. ¶160. After Shinwari emailed Harley for help in getting removed from the No Fly List, Michael LNU
and Doe 6 returned to his home and again asked that he become an informant, telling him that if he helped the FBI, the FBI
would “help” him. Id. ¶ 161. Shinwari declined to serve as an informant, although he understood the agents to be offering to
remove him from the No Fly List. Id.
Thereafter, Shinwari retained counsel and submitted two TRIP complaints about his inclusion on the List. Id. ¶¶ 165–68. He
did not receive confirmation that he had been removed from the List until June 2015, after filing this action. Dkt. 92.
PROCEDURAL HISTORY
*6 As relevant to the present motion, this Court previously dismissed Plaintiffs' RFRA claims, holding that the relief afforded
by the statute—which provides that, where a person's “religious exercise has been burdened,” that person “may assert that
violation as a claim” and “obtain appropriate relief against a government,” 42 U.S.C. § 2000bb-1(c)—did not include money
damages against officials in their personal capacities. Tanvir v. Lynch, 128 F. Supp. 3d 756, 780–81 (S.D.N.Y. 2015). Because
the Court found that “appropriate relief” under RFRA did not provide for money damages, it did not address whether Defendants
were entitled to qualified immunity. 2
Plaintiffs appealed, and the Second Circuit reversed in part, determining RFRA “permits a plaintiff to recover money damages
against federal officers sued in their individual capacities.” Tanvir v. Tanzin, 894 F.3d 449, 453 (2d Cir. 2018). The Circuit
remanded for this Court to determine in the first instance whether Defendants are entitled to qualified immunity, expressly noting
that it was “sensitive to the notion that qualified immunity should be resolved at the earliest possible stage in the litigation,”
including “in a Rule 12(b)(6) motion.” Id. at 472 (cleaned up).
Prior to remand, however, the Supreme Court granted certiorari. Tanzin v. Tanvir, 140 S. Ct. 550 (2019). It ultimately affirmed
the Second Circuit's statutory construction, holding that “appropriate relief” within the meaning of RFRA includes claims for
money damages for officials sued in their individual capacities. Tanzin v. Tanvir, 141 S. Ct. 486, 489 (2020). Like the Court of
Appeals before it, however, the Supreme Court expressly cautioned that Defendants may be entitled to qualified immunity—
and indeed that Plaintiffs had themselves repeatedly argued as much on appeal—stating:
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Both the Government and respondents agree that government officials are entitled to assert a qualified immunity defense
when sued in their individual capacities for money damages under RFRA. Indeed, respondents emphasize that the “qualified
immunity defense was created for precisely these circumstances,” Brief for Respondents 22, and is a “powerful shield” that
“protects all but the plainly incompetent or those who flout clearly established law,” Tr. of Oral Arg. 42, see District of
Columbia v. Wesby, 138 S. Ct. 577, 589–91 (2018).
Id. at 492 n.2. 3
*7 On remand, Defendants have thus filed a renewed motion to dismiss the remaining claims in the Amended Complaint for
failure to state a claim and under the doctrine of qualified immunity. 4 Plaintiffs timely opposed the motion, after which the
Court heard oral argument.
LEGAL STANDARDS
On a Rule 12(b)(6) motion, the Court must accept all factual allegations in the complaint as true and draw all reasonable
inferences in the plaintiff's favor. See Cnty. of Erie v. Colgan Air, Inc., 711 F.3d 147, 149 (2d Cir. 2013). “To survive a motion
to dismiss, a complaint must contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its
face.’ ” Ashcroft v. Iqbal, 556 U.S 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 533, 570 (2007)). “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.” Id. The Court need not accept “legal conclusions” or “threadbare recitals of the
elements of the cause of action,” Harris v. Mills, 572 F.3d 66, 72 (2d Cir. 2009), and a plaintiff must provide “more than labels
and conclusions” to make out a claim upon which relief can be granted, Twombly, 550 U.S. at 555.
“RFRA prohibits the government from ‘substantially burden[ing] a person's exercise of religion’ unless ‘application of the
burden ... (1) is in furtherance of a compelling governmental interest; and (2) is the least restrictive means of furthering that
compelling governmental interest.’ ” Sabir v. Williams, 52 F.4th 51, 59 (2d Cir. 2022) (quoting 42 U.S.C. § 2000bb-1(a)–(b)). To
establish a “prima facie RFRA violation, the plaintiffs must demonstrate that they sought to engage in the exercise of religion and
that the defendant-officials substantially burdened that exercise.” Id. The government then faces an “exceptionally demanding”
burden to show “that it lacks other means of achieving its desired goal without imposing a substantial burden on the exercise
of religion by the objecting parties.” Burwell v. Hobby Lobby Stores, Inc., 573 U.S. 682, 728 (2014).
In assessing whether officials are entitled to qualified immunity, a court conducts a two-step analysis, considering (1) whether
the facts presented “make out a violation of a constitutional [or statutory] right, and (2) whether the right at issue was ‘clearly
established’ when it was allegedly violated.” Torcivia v. Suffolk Cnty., 17 F.4th 342, 367 (2d Cir. 2021) (cleaned up). Although
the Supreme Court previously required courts to consider the two prongs sequentially in all circumstances, see Saucier v. Katz,
533 U.S. 194 (2001), courts are now free to use “sound discretion in deciding which of the two prongs of the qualified immunity
analysis should be addressed first in light of the circumstances in the particular case at hand,” Pearson v. Callahan, 555 U.S.
223, 236 (2009). Thus, where “prior case law has not clearly settled the right, and so given officials fair notice of it, the court
can simply dismiss the claim for money damages.” Camreta v. Greene, 563 U.S. 692, 705 (2011).
*8 While often invoked as a defense to constitutional claims, qualified immunity may also be invoked against statutory claims.
See Harlow v. Fizgerald, 457 U.S. 800, 818 (1982). More specifically, qualified immunity may apply to actions brought under
RFRA. See Sabir, 52 F.4th at 58–60; Fazaga v. FBI, 965 F.3d 1015, 1061 (9th Cir. 2020), rev'd on other grounds, 141 S. Ct.
2720 (2021); Lebron v. Rumsfeld, 670 F.3d 540, 557 (4th Cir. 2012); Walden v. Centers for Disease Control & Prevention, 669
F.3d 1277, 1285 (11th Cir. 2012); Rasul v. Myers, 563 F.3d 527, 533 n.6 (D.C. Cir. 2009) (per curiam). Indeed, as the Supreme
Court noted in this very action, Plaintiffs have themselves conceded that “government officials are entitled to assert a qualified
immunity defense” under RFRA. Tanzin, 141 S. Ct. at 492 n.2.
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DISCUSSION
In their effort to allege that Defendants here violated clearly established law, such that they are not entitled to qualified immunity,
Plaintiffs make two main arguments. First, they assert that caselaw existing at the time of their interactions with the FBI
articulated a general “right to be free from government pressure that forces an individual to violate sincerely held religious
beliefs,” and that such precedent provided clear notice that Defendants' alleged conduct violated RFRA. Opp. at 36. Second,
they argue that, in any event, “the RFRA statute itself”—given its general prohibition against imposing a “substantial burden”
on religious exercise—is sufficient to have put Defendants on notice of the purported illegality of their alleged conduct. See
Opp. at 36–37.
For the reasons articulated below, the Court disagrees. Accepting each of the factual allegations in the Amended Complaint
as true, a reasonable officer in Defendants' position would not have known—much less “known for certain,” Ziglar v. Abassi,
137 S. Ct. 1843, 1867 (2017)—that their conduct would impose a substantial burden on Plaintiffs' religious exercise and thus
violate RFRA. Defendants are accordingly entitled to qualified immunity, and the renewed motion to dismiss the Amended
Complaint is granted.
I. Clearly Established Law Analysis
To be clearly established, the contours of the right at issue must be “sufficiently clear that every reasonable official would have
understood that what he is doing violates that right.” Mullenix v. Luna, 577 U.S. 7, 11 (2015) (per curiam) (quoting Reichle
v. Howards, 566 U.S. 658, 664 (2012)). The Supreme Court has “repeatedly told courts ... not to define clearly established
law at a high level of generality.” Mullenix, 577 U.S. at 11 (quoting Ashcroft v. al-Kidd, 563 U.S. 731, 742 (2011)). Instead,
“the dispositive question is whether the violative nature of particular conduct is clearly established.” Ziglar, 137 S. Ct. at
1866 (emphasis in original) (quoting Mullenix, 577 U.S. at 12); see also Wesby, 138 S. Ct. at 590 (“The ‘clearly established’
standard ... requires that the legal principle clearly prohibit the officer's conduct in the particular circumstances before him.”).
The inquiry regarding whether a right was clearly established must therefore be “undertaken in light of the specific context
of the case, not as a broad general proposition.” Mullenix, 577 U.S. at 12. While there need not be “a case directly on point,”
“existing precedent must have placed the statutory or constitutional question beyond debate.” Id. “It is not enough that the rule
is suggested by then-existing precedent.” Wesby, 138 S. Ct. at 590. In other words, “[t]he precedent must be clear enough that
every reasonable official would interpret it to establish the particular rule the plaintiff seeks to apply.” Id.; see also Garcia v.
Does, 779 F.3d 84, 92 (2d Cir. 2015) (to determine whether a right is clearly established, courts look to prior Supreme Court and
circuit precedent “directly addressing the right at issue” or “clearly foreshadow[ing] a particular ruling on the issue”). An officer
is immune from liability if “a reasonable officer might not have known for certain that the conduct was unlawful.” Ziglar, 137
S. Ct. at 1867. “Put simply, qualified immunity protects all but the plainly incompetent or those who knowingly violate the
law,” Mullenix, 577 U.S. at 12 (cleaned up), and affords “breathing room to make reasonable but mistaken judgments about
open legal questions,” al-Kidd, 563 U.S. at 743; accord Wesby, 138 S. Ct. at 589 (2018).
*9 As a threshold matter, the Court must evaluate the parties' competing definitions of the particular right at issue. Defendants
define the right as the right not to be “recruit[ed] as [a] confidential government informant[ ] through the retaliatory or coercive
use of the No Fly List.” Mot. at 22. Plaintiffs, meanwhile, articulate it as the “right to be free from government pressure that
forces an individual to violate sincerely held religious beliefs.” Opp. at 36. By characterizing the right in such a generalized
and vague fashion, however, Plaintiffs render their definition legally meaningless. The Supreme Court has held that “clearly
established law must be particularized to the facts of the case.” White v. Pauly, 580 U.S. 73, 79 (2017). “Otherwise, plaintiffs
would be able to convert the rule of qualified immunity into a rule of virtually unqualified liability simply by alleging violation
of extremely abstract rights.” Id. (quoting Anderson v. Creighton, 438 U.S. 635, 639 (1987)); see also Mullenix, 577 U.S. at 12.
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Unsurprisingly, then, courts considering qualified immunity defenses against claims brought under RFRA regularly delineate
the right at issue with a considerable degree of particularity—and much more narrowly than Plaintiffs propose. See, e.g., Smadi
v. Michaelis, 2020 WL 7491296, at *4–6 (S.D. Ill. Dec. 21, 2020) (the “right to accommodation for an inmate's idiosyncratic
dietary restrictions associated with his religion”); Fernandez-Torres v. Watts, 2017 WL 9485591, at *3 (S.D. Ga. Jan. 30, 2017),
report and recommendation adopted by 2017 WL 1173923 (S.D. Ga. Mar. 29, 2017) (the right for prisoners to receive “religious
property from outside sources when the religious items available through authorized means are not sufficient to meet the
prisoner's religious needs”). Indeed, considering—and ultimately rejecting—claims similar to those presented here, the district
court in El Ali v. Barr construed the complaint to concern the right not to be subjected to “persistent inquiry into [one's] religious
beliefs and practices” with “pressure ... to modify or violate those beliefs or risk being subjected to the pattern of detentions
and interrogations in connection with their travel.” 473 F. Supp. 3d 479, 526 (D. Md. 2020).
The Court therefore construes the right presented by Plaintiffs' claims here as the right not to be pressured by law enforcement to
inform on members of their religious communities through the coercive or retaliatory use of the No Fly List. So understood, for
the reasons set forth below, the Court concludes that such a right was not clearly established at the time of the alleged violations.
Even if the right were defined more broadly, such as the right not to be pressured to inform on members of one's religious
community through the coercive or retaliatory use of any governmental tool, the Court nevertheless concludes that such a right
was still not clearly established at the time of the events giving rise to the Complaint.
A. Precedent at the Time Did Not Clearly Establish that Defendants Violated RFRA
At the time of Defendants' alleged activity, no federal court had addressed claims—let alone actually held—that law enforcement
pressuring individuals to inform on members of their religious communities through retaliatory or coercive means substantially
burdened their religious exercise in violation of RFRA. Plaintiffs point to four cases in an attempt to make out their claim of
clearly established law at the time of the alleged violations, but each of those cases are plainly distinguishable.
First, Lee v. Weisman, 505 U.S. 577 (1992), involved Establishment Clause challenges to prayer held during a public school
graduation ceremony. Observing that “there are heightened concerns with protecting freedom of conscience from subtle coercive
pressure in the elementary and secondary public schools,” id. at 592, the Supreme Court in Weisman found an Establishment
Clause violation because “young graduates who object [to the prayer] [we]re induced to conform,” id. at 599; see also id. (“No
holding by this Court suggests that a school can persuade or compel a student to participate in a religious exercise.”). It was the
specific context of the “prayer exercises in public schools” which the Court found carried a “particular risk of indirect coercion.”
Id. at 592. While acknowledging that the “heightened concern” of such coercion “may not be limited to the context of schools,”
the Court observed that “it is most pronounced there.” Id.
*10 None of the allegations in the Complaint here, of course, concern the purported coercion of school-age children to engage
in religious exercise, nor do Plaintiffs contend that they were coerced to engage in prayer to which they objected. Rather, their
particular complaint is that they were “placed or kept on the [No Fly] List when [they] refused to become [ ]informant[s] for the
FBI against fellow American Muslims” because informing on their fellow Muslims would have violated their sincerely held
religious beliefs. Opp. at 2. Plaintiffs' attempt to stretch Weisman’s holding to fit the facts alleged in the Complaint is unavailing,
as the Supreme Court has plainly instructed that the clearly established inquiry must be “undertaken in light of the specific
context of the case, not as a broad general proposition.” Mullenix, 577 U.S. at 12 (cleaned up). Weisman, put simply, does not
place the statutory question of whether Defendants were violating RFRA “beyond debate.” Id.
The Second Circuit's decision in DeStefano v. Emergency Housing Group, Inc., 247 F.3d 397 (2d Cir. 2001), is also inapposite,
as it concerned state funding of a treatment facility that hosted Alcoholics Anonymous sessions which were religious in nature.
In that case, the Circuit found that the mere inclusion of A.A. programs in services offered by the state-funded facility did not
violate the Establishment Clause, nor, moreover, did the facility employees' “strong[ ] urg[ing]” and “actively encourage[ment]”
of client participation in the programs. Id. at 408–10. The Court found that, to the extent there were facts sufficient to establish
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that employees were involved in the “inculcation of religious beliefs,” such facts could constitute governmental indoctrination
in violation of the Establishment Clause, but that factual questions remained about whether the staff's behavior rose to the level
of “inculcation.” Id. at 420. 5
Here, there is no suggestion that Defendants' actions were in any way “designed to inculcate the views of a particular religious
faith” or to “indoctrinate.” Id. at 411, 414. Rather, Defendants were engaged in the discrete task of seeking intelligence about
Muslim adherents in the interest of national security, by, among other things, encouraging Plaintiffs to attend services or engage
in conversation in online Islamic chatrooms. And, as DeStefano itself held, “[u]rging people to attend [religious] meetings or
explaining to them why, in the view of the speaker, it is in their best interests to attend [such meetings] is not, without more,
indoctrination.” Id. at 415. Such encouragement “does not imbue clients with [a religious] point of view, nor does it inculcate
or impress [ ] beliefs upon the mind of the listener by frequent instruction or repetition.” Id. (cleaned up).
Third, the seminal case of Wisconsin v. Yoder, 406 U.S. 205 (1972), involved the wholly unrelated application of state
compulsory education laws to Amish students whose religious beliefs prevented them from attending school beyond the eighth
grade. In fact, the Supreme Court's holding in Yoder was as much grounded in the so-called Meyer-Pierce line of cases
establishing parents' due process rights to control their children's upbringing as it was a case about religious liberty. See Yoder,
406 U.S. at 232–33 (“Under the doctrine of Meyer v. Nebraska, 262 U.S. 390 [(1923)], we think it entirely plain that the Act of
1922 unreasonably interferes with the liberty of parents and guardians to direct the upbringing and education of children under
their control.”); see also id. at 233 (“However read, the Court's holding Pierce [v. Society of Sisters, 268 U.S. 510 (1925)] stands
as a charter of the rights of parents to direct the religious upbringing of their children.”). To the extent that the case established
any broad right of religious exercise, it was, at most, limited to the “power of the State to promulgate reasonable” educational
standards which did not “impair[ ] the free exercise of religion” for schoolchildren. Id. at 236. 6 It had nothing to do with law
enforcement officers pressuring religious adherents to inform on co-religionists. Yoder thus did not “directly address[ ] the right
at issue,” and did not “clearly foreshadow[ ] a particular ruling” on Plaintiffs' RFRA claims. Garcia, 779 F.3d at 92.
*11 It is thus unsurprising that the Ninth Circuit, considering claims analogous to those at issue here, determined that “it
was not clearly established in 2006 or 2007 that covert surveillance conducted on the basis of religion would meet the RFRA
standards for constituting a substantial burden on individual congregants.” Fazaga, 965 F.3d at 1061. Considering the state of
the law at a time long after Weisman and Yoder were decided, it held that “[t]here simply was no case law in 2006 or 2007 that
would have put the Agent Defendants on notice that covert surveillance on the basis of religion could violate RFRA.” Id.
Finally, Plaintiffs insist that the general definition of a religious “burden” used by the Supreme Court in Thomas v. Review Bd.
of the Indiana Emp. Sec. Div., 450 U.S. 707, 718 (1981) (and restated by the Second Circuit in Jolly v. Coughlin, 76 F.3d 468,
477 (2d Cir. 1996)) was alone sufficient to put Defendants on notice of the purported illegality of their requests. See Oral Arg.
Tr. at 29 (counsel seemingly changing their argument and stating “I don't think you need to use” the three cases relied upon in
Plaintiffs' brief and discussed above, and arguing, instead, “you can rely on the Supreme Court precedent of Thomas and the
Second Circuit precedent of Jolly”). The Court is unpersuaded.
To start, Thomas stated simply that “[w]here the state conditions receipt of an important benefit upon conduct proscribed by a
religious faith, or where it denies such a benefit because of conduct mandated by religious belief, thereby putting substantial
pressure on an adherent to modify his behavior or violate his beliefs, a burden upon religion exists.” 450 U.S. at 717–18. This
broad proposition, however, says nothing about when such a “burden” becomes a “substantial burden”—let alone when such a
substantial burden, within the meaning of RFRA (a statute not yet enacted when Thomas was decided), is no longer justified in
“furtherance of a compelling governmental interest.” 42 U.S.C. § 2000bb-1(a)–(b). Moreover, Thomas did not address factual
circumstances even remotely akin to those presented here. Instead, it concerned whether a State's denial of unemployment
benefits to an employee allegedly terminated because of his religious convictions violated his free exercise rights. See 450 U.S.
707–20.
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Although Jolly reiterated Thomas’s language in weighing a claimed RFRA violation some fifteen years later, the case's
procedural posture limits its reach. There, the Second Circuit held only that an inmate had demonstrated a substantial likelihood
of success on the merits of his RFRA claim, such that a district court's issuance of a preliminary injunction was not an abuse
of discretion. See 76 F.3d at 471–73. But even if Jolly did constitute a decision on the merits of the RFRA claim, it too is
distinguishable, as it involved a plaintiff-inmate who argued that his confinement to a “medical keeplock” for three-and-a-half
years for refusing to submit to a test for tuberculosis based upon religious objections violated RFRA. Id. at 470–72. The clearly
established law analysis must be “undertaken in light of the specific context of the case” in which qualified immunity has been
asserted, and, at bottom, neither Thomas nor Jolly would have placed the statutory [ ] question” presented by Plaintiffs here
“beyond debate.” Mullenix, 577 U.S. at 12.
Each of the two additional cases which Plaintiffs cite to make out their claim of clearly established law were decided after
Defendants' last alleged interactions with Plaintiffs in November 2011 (Tanvir), March 2012 (Shinwari), and May 2013
(Algibhah). See Burwell v. Hobby Lobby Stores, Inc., 573 U.S. 682 (2014); Washington v. Gonyea, 538 F. App'x 23 (2d Cir.
Sept. 10, 2013). Thus, even to the extent those cases squarely addressed the claimed violation of RFRA—and they do not—
they could not possibly have provided any relevant notice to Defendants because they did not “exist[ ] at the time of the alleged
violation.” Okin, 577 F.3d at 433. (Never mind, moreover, that the Second Circuit's unpublished summary order in Washington
could not constitute “precedent” for purposes of establishing clearly established law. See Cerrone v. Brown, 246 F.3d 194, 202
(2d Cir. 2001) (observing an unpublished decision “does not determine whether a right was clearly established”)).
*12 Even if given the benefit of all available precedent today, a decade after the last alleged violations in the Amended
Complaint, Plaintiffs' argument that Defendants' actions violated clearly established law would likely still fail. For one, Burwell
and Washington involved factual circumstances plainly distinguishable from the alleged violations in the Complaint. See
Burwell, 573 U.S. at 688–91 (holding that RFRA prohibited the Department of Health and Human Services from enforcing
regulations requiring employers to provide health-insurance coverage for contraception against closely-held corporations whose
owners had religious objections to contraception); Washington, 538 F. App'x at 26–27 (construing a pro se complaint to state a
First Amendment retaliation claim where prison officials had allegedly denied religious services to the plaintiff for providing a
Quran to another inmate); see also id. (observing that “the contours of the burden standard are not precisely drawn” for RFRA
claims).
Indeed, the only federal court to have directly addressed the claims at issue here rejected the argument that they stated a RFRA
violation. See El Ali v. Barr, 473 F. Supp. 3d 479, 527 (D. Md. 2020). In that case, as here, the plaintiffs claimed that “offers
to act as informants for the FBI in exchange for resolution of their travel woes substantially burden[ed] their free exercise of
religion,” because “their religious beliefs restrict[ed] bearing false witness and betraying the trust of their religious community,”
and thus prohibited them from agreeing to serve as informants. Id. The district court held that law enforcement's efforts to
persuade the plaintiffs to serve as informants on their religious community members—even if accompanied by an offer of
assistance to remove them from a watchlist—did not impose a substantial burden on religious exercise. See id. A “mere ‘ask’
for assistance in exchange for favorable treatment,” it reasoned, “does not constitute a substantial burden on free exercise.”
Id. The court continued:
As with all potential law enforcement informants, the relationship begins with an “ask,” and possible
favorable treatment in exchange for helpful information. Also, as with many “asks,” they too begin
with the potential informant having something to gain, and often something to lose, from saying yes.
Suspects are sometimes paid for their testimony or “work off charges” in exchange for turning on their
friends, coworkers, family, and community leaders. This Hobson's choice is the same faced by scores of
suspects who enter into cooperation agreements with the government on a daily basis. Plaintiffs' choice
is a variation on this theme.
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Id. Finding the requests from law enforcement analogous to any number of standard requests for information, the court in El Ali
“discern[ed] no principled reason to find the mere offer of a chance to cooperate as placing a substantial burden on the exercise
of religion sufficient to support a RFRA violation.” Id.; cf. Fikre v. FBI, 2019 WL 2030724, at *8–9 (D. Or. May 8, 2019)
(expressing similar “concerns regarding the pleading adequacy of Plaintiff's RFRA claim” where the complaint alleged that the
defendants “attempted to use Plaintiff's presence on the No-Fly List as leverage to coerce [him] into becoming an informant
regarding activities in [his] mosque,” but ultimately rejecting claim on timeliness grounds).
Accordingly, the Court concludes that precedent did not clearly establish at the time of the alleged violations that pressuring an
individual to inform on members of their religious community, in violation of their sincerely held beliefs, substantially burdened
religious exercise in violation of RFRA.
B. The Statute Itself Does Not Clearly Establish that Defendants Violated RFRA
Plaintiffs alternatively insist, relying on the Second Circuit's recent decision in Sabir v. Williams, 52 F.4th 51 (2d Cir. 2022),
that the language of RFRA, itself, should have provided clear notice to the agents, such that their activity which is the subject
of this action violated clearly established law. “Based on RFRA's requirements” alone, they quote from Sabir, “it is not difficult
for an official to know whether an unjustified substantial burden on religious exercise will be deemed reasonable.” Id. at 65
(cleaned up).
*13 By selectively quoting Sabir, Plaintiffs cite the case for a proposition broader than the one articulated by the Second
Circuit. As an initial matter, Sabir concerned textbook violations of law clearly establishing that “preventing a prisoner from
engaging in congregational prayer constitutes a substantial burden on the prisoner's religious exercise.” 52 F.4th at 65 n.9;
see also id. (“[W]e have consistently recognized that policies restricting access to group prayer impose a burden on prisoners'
free exercise rights.”) (citing Salahuddin v. Coughlin, 993 F.2d 306, 308 (2d Cir. 1993)). Moreover, in Sabir, unlike here, the
plaintiffs specifically and repeatedly raised their religious objections to the defendant wardens' conduct preventing them from
participating in group prayer. See, e.g., 52 F.4th at 55–56.
But even accepting Plaintiffs’ premise that Sabir also stands for the proposition that RFRA itself may, in some contexts, provide
clear notice to would-be offenders, their reliance on the case remains unavailing. To be sure, statutory provisions in existence at
the time of an individual's conduct can create “fair warning” for the officer that their conduct would violate a plaintiff's rights.
Okin v. Village of Cornwall-on-Hudson Police Department, 577 F.3d 415, 433–34 (2d Cir. 2009). Accordingly, Sabir reasoned
that there are “some contexts in which a higher degree of specificity is required to establish the law for purposes of qualified
immunity than in others.” 52 F.4th at 65. “For example, the Fourth Amendment's prohibition of ‘unreasonable searches and
seizures’ is an ‘abstract right[ ]’ because ‘it may be difficult for an officer to know whether a search or seizure will be deemed
reasonable given the precise situation encountered.” Id. (quoting Ziglar, 137 S. Ct. at 1866). But the Circuit emphasized that
“[n]o such concerns [were] present” in Sabir, because, “[b]ased on RFRA's requirements, it is not difficult for an official to know
whether an unjustified substantial burden on religious exercise will be deemed reasonable.” Id. at 65 (cleaned up). “As the text
of the statute itself explains: ‘Government may substantially burden a person's exercise of religion only if it demonstrates that
application of the burden ... is in furtherance of a compelling governmental interest.’ ” Id. (emphasis in original). Because the
prison wardens in Sabir denied the plaintiffs' requests for group prayer “with no justification” whatsoever, RFRA itself provided
clear warning that doing so—without justification—violated the law. Id. at 66. “Put another way, if an official substantially
burdens a sincere religious exercise but cannot point to evidence that the application of the burden was in service of any interest
—let alone a compelling one—the official has violated RFRA.” Id.
Accepting further that Defendants could have known from RFRA's text, let alone “known for certain,” Ziglar, 137 S. Ct. at
1867, that their attempts to pressure Plaintiffs to inform on fellow Muslims “substantially burdened” their religious exercise, it
cannot be said Defendants made the requests “with no justification,” Sabir, 52 F.4th at 66. Defendants, like the FBI and DHS
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more broadly, were actively engaged in an effort to gather intelligence related to national security in the aftermath of the 9/11
terrorist attacks. The Complaint itself acknowledges that the No Fly List existed to reduce “significant threats to aviation safety,”
and was maintained by the TSC with the goal of “coordinating the government's approach to terrorism screening.” Compl. ¶¶
2, 20. Put differently, even to the extent that the Complaint plausibly alleges that Defendants improperly burdened religious
exercise, it does not allege that they did so with no justification whatsoever. Contra Sabir, 52 F.4th at 66 (where the wardens
could not point to evidence “that the application of the burden was in service of any interest”).
*14 The text of RFRA itself is thus not dispositive to the question of whether clearly established law would have put Defendants
on notice that their requests to Plaintiffs violated RFRA, and the Court must look to the state of Supreme Court and Second
Circuit precedent in existence at the time. See supra, pp. 16–21.
II. Leave to Amend
Finally, whether to grant leave to further amend a complaint is committed to the “sound discretion of the district court,” and
may be denied when amendment would prove futile. McCarthy v. Dun & Bradstreet Corp., 482 F.3d 184, 200 (2d Cir. 2007).
For instance, “[g]ranting leave to amend is futile if it appears that plaintiff cannot address the deficiencies identified by the court
and allege facts sufficient to support the claim.” Panther Partners Inc. v. Ikanos Commc'ns, Inc., 347 F. App'x 617, 622 (2d Cir.
2009). Here, Plaintiffs do not specifically seek leave for further amendment. The Court has concluded, given the state of the law
at the time of the interactions at issue, that it was not clearly established that Defendants' pressuring of Plaintiffs to inform on
their fellow Muslims would have violated RFRA. Further amendment would thus be futile, as no amendment to the pleadings
could change the state of the law then in existence. Accordingly, the Court thus finds dismissal with prejudice to be warranted.
CONCLUSION
For the foregoing reasons, Defendants' motion to dismiss is granted. The Clerk of Court is respectfully directed to terminate
the motions pending at docket entry 127, and to close this action.
SO ORDERED.
All Citations
Not Reported in Fed. Supp., 2023 WL 2216256
Footnotes
1 Pursuant to the Stipulation and Order filed July 24, 2014, Defendants FNU Tanzin, John LNU, Steven LNU, Michael
LNU, and John Does 1–6 are currently proceeding under the pseudonyms specified in the Amended Complaint. See
Dkt. 30 ¶¶ 1–2. John Doe 2 is proceeding as John Doe 2/3. See id. ¶ 1(f). A fourth Plaintiff, Awais Sajjad, did not assert
claims under RFRA, see Dkt. 15, and thus is no longer party to the remaining claims in this action. Accordingly, there
are no longer pending claims against Defendants John Does 9–13, Michael Rutowski, or William Gale. Finally, John
Does 7 and 8 were previously dismissed from this action. See Dkt. 104 at 36.
2 The claims against Defendants in their official capacities were previously stayed on consent of all parties after Plaintiffs
were apprised that they were no longer on the No Fly List. See Dkt. 92, 93. The Court also previously dismissed Plaintiffs'
First Amendment claims brought against Defendants in their individual capacities, reasoning that the Supreme Court
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had “declined to extend Bivens to a claim sounding in the First Amendment.” Tanvir, 128 F. Supp. 3d at 769. That
determination was not appealed, and thus is not at issue on remand. See Tanvir v. Tanzin, 894 F.3d 449, 457 (2d Cir. 2018).
3 See also Tanzin v. Tanvir, Tr. of Oral Arg. at 35–36 (Oct. 6, 2020) (Justice Thomas asking counsel for Plaintiffs how
an officer is to know whether the “burden they're imposing is the least restrictive means of furthering a governmental
interest,” and counsel answering, “that is, of course, an argument ... that [Defendants] could have presented in ...
the qualified immunity defense that they made”); id. at 52–54 (counsel for Plaintiffs further explaining that “the law
accounts for [this concern] ... due to well-established and robust doctrine of qualified immunity,” and Justice Kavanaugh
responding “that's a good answer about qualified immunity”).
4 Defendants Steven LNU, Harley, Grossoehmig, Michael LNU, John Doe 6, Dun, and Langenberg also renewed their
Rule 12(b)(2) motion to dismiss the claims against them for lack of personal jurisdiction. Because the Court concludes
that, accepting all allegations in the Amended Complaint as true, none of the Defendants violated clearly established
law, and thus are all entitled to dismissal under the doctrine of qualified immunity, it does not reach the jurisdictional
question raised by this subset of Defendants.
5 Contrary to Plaintiffs' claim that DeStefano held that “[p]ressure from government officials rises to the level of a
substantial burden when it prevents an individual from participating in religious activity as a matter of a genuine personal
choice,” Opp. at 36, the Second Circuit expressly declined to “decide the issue of coercion,” finding that it “ha[d] not
been squarely presented,” 247 F.3d at 411. Any discussion of “coercion” was therefore dicta, and cannot be construed
as clearly established law. See, e.g., Jones v. Treubig, 963 F.3d 214, 226 n.7 (2d Cir. 2020) (“[W]e do not rely on any
dicta ... for the purpose of determining clearly established law.”).
6 Given the emphasis Yoder placed on the unique position of Amish children in American life, it is unclear what, if any,
applicability the case has in in the context of other religious communities. See, e.g., id. at 235 (observing that, given
a unique “history of three centuries as an identified religious sect and a long history as a successful and self-sufficient
segment of American society, the Amish in this case have convincingly demonstrated the sincerity of their religious
beliefs, the interrelationship of belief with their mode of life, [and] the vital role that belief and daily conduct play in
the continued survival of Old Order Amish communities and their religious organization”). The Court need not address
that question here.
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2022 WL 3154142
Only the Westlaw citation is currently available.
United States District Court, N.D. New York.
Juneau WANG, Plaintiff,
v.
BETHLEHEM CENTRAL SCHOOL DISTRICT and Jody Monroe, Defendants.
1:21-CV-1023 (LEK/DJS)
|
Signed August 8, 2022
Attorneys and Law Firms
Gerald B. Sweeney, Sweeney Lev LLC, Montclair, NJ, for Plaintiff.
Gabriella Levine, Monica Rose Lenahan, Whiteman, Osterman Law Firm, Albany, NY, for Defendants.
MEMORANDUM-DECISION AND ORDER
LAWRENCE E. KAHN, United States District Judge
I. INTRODUCTION
*1 Plaintiff Juneau Wang brings this action against the Bethlehem Central School District (“the District”) and Jody Monroe, the
superintendent of the District, alleging violation of his rights as set forth in the Constitution of the United States and federal law
as well as violation of various state laws and rights created by state common law doctrines. Dkt. No. 4 (“Amended Complaint” or
“Complaint”). Now before the Court is Defendants’ motion to dismiss. Dkt. Nos. 14 (“Motion to Dismiss”), 14-1 (“Defendant's
Memorandum”). Plaintiff has responded, Dkt. Nos. 17 (“Response”), and Defendant has replied, Dkt. No. 18 (“Reply”).
For the reasons that follow, the Court grants Defendants’ Motion to Dismiss in part and denies in part.
II. BACKGROUND
The following factual allegations are assumed to be true in evaluating the Motion to Dismiss. See Vega v. Hempstead Union
Free Sch. Dist., 801 F.3d 72, 76 (2d Cir. 2015).
In January 2018, when Plaintiff was a sophomore at Bethlehem Central High School, he created a computer-generated,
tournament-style bracket (“Bracket”) that reflected voting by Plaintiff and a few friends regarding 64 girls, mostly classmates,
to determine “the two most liked or admired girls.” Compl. ¶ 59. The Bracket was created off-campus at Plaintiff's home using
software available through the internet. Id. ¶ 60. The Bracket did not use photos, but merely listed the names of the girls. Id. ¶
62. Plaintiff and the other boys intended that the bracket and opinions expressed therein would remain private and would not
be disclosed to others or publicly disseminated. Id. ¶ 63.
Months later, a female student in Plaintiff's class discovered the Bracket while doing an internet search. Id. ¶ 19. This female
student and others then disseminated the Bracket publicly. Id.
In April of 2018, the Principal of Bethlehem Central High School, David Doemel, investigated the Bracket, finding that Plaintiff
and his friends had not intended to harm, harass, or objectify anyone and had expected the Bracket to remain private. Id. ¶ 32.
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Nonetheless, Principal Doemel instituted “remedial directives,” including a written apology by Plaintiff for his actions, and
guided Plaintiff in resolving the matter. Id. ¶¶ 34, 42, 46.
In 2019, Plaintiff published a book ostensibly concerning his experiences creating the Bracket and the backlash to it. Id. ¶ 64.
On page 186 of his book, Plaintiff observes that “if girls made a bracket of guys, guys would laugh it off.” Id.
In Spring of 2020, during Plaintiff's senior year, the Bethlehem Central High School Speech Committee, comprised of Principal
Doemel, Hall Principal Nicole Conway, and 7 other teachers and advisors, instituted a competition to choose a student who
would be given the opportunity to speak at the upcoming graduation ceremony. Id. ¶¶ 6–7. The Speech Committee stated it
would choose a speech based on merit, in accordance with the contest goals, standards, and rules. Id. ¶ 7.
Plaintiff submitted a speech for consideration, referred to as the “Resilience Speech,” which focused on overcoming adversity.
Id. ¶ 9. On June 1, 2020, Plaintiff's speech was unanimously selected by the Committee and publicly announced. Id. ¶¶ 10–12.
*2 That same month, Defendant Monroe, the superintendent of Bethlehem Central School District, received complaints from
female students and their parents objecting to Plaintiff's selection as a graduation speaker due to his creation of the Bracket
two years earlier. Id. ¶¶ 18–19. Plaintiff does not specify how many complaints there were overall, but asserts that Monroe
eventually relied upon four of these complaints that were sent by email to overturn the Speech Committee's decision. Id. ¶ 20.
These four email complaints inaccurately stated that Plaintiff had disseminated the Bracket himself and refused to apologize.
Id. ¶ 21. The complaints said initial handling of the matter was insufficient and requested additional punishment in the form of
excluding Plaintiff from speaking at the graduation ceremony. Id. ¶ 22.
In relying on these complaints and overruling the Speech Committee, Monroe did not investigate the details of the Bracket or
Principal Doemel's 2018 resolution of the matter, and erroneously believed the Bracket “ranked photos” of female students. Id.
¶¶ 27–28. On June 4, 2020, Monroe officially ordered that Wang would not be allowed to speak at the graduation ceremony. The
next day, Monroe assured one complaining parent that her decision was final, and Plaintiff would not speak. Id. ¶ 24. Plaintiff
notes that the Speech Committee rules did not authorize Monroe or anyone else to overrule their selection. Id. ¶ 25.
Plaintiff was not informed of Monroe's decision until June 8, 2020, when he was told in person by Principal Doemel. Id. ¶
35. Plaintiff contacted Monroe that same day and requested an opportunity to be heard, but Monroe would not speak with him
until June 15, 2020. Id. ¶¶ 36–37.
During their discussion, Monroe told Plaintiff that some female classmates were upset by the Bracket and that permitting him
to speak would be perceived as honoring him. Id. ¶ 39. She claimed Plaintiff's speech was objectionable because it could be
perceived as providing advice, which might offend some of the female students, and that the statement in his book that boys
would have reacted differently to a bracket created by girls “rubbed her the wrong way.” Id. Monroe told Plaintiff it was “really
late” to change her mind, and that he would have to change the perspectives of the offended students and their families if he
wanted to be reinstated as speaker. Id. ¶ 40. Monroe did not inform Plaintiff of the nature of the complaints against him, what
her understanding of the Bracket was, or that she had assured parents that her decision was final. Id. ¶ 41. Monroe refused to
reinstate Plaintiff, but advised him to communicate in writing with the Board of Education (“Board”) before their meeting two
days later on June 17, 2020, “so it could consider her decision and his input.” Id. ¶ 43.
On June 16, 2020, Plaintiff submitted a written appeal to the Board requesting they reverse Monroe's decision. Id. ¶ 44. Prior to
or during the meeting on June 17, Monroe provided the Board with the four email complaints she had relied upon and excerpts
from Plaintiff's book. Id. ¶ 45. Monroe did not provide the Board with a copy of Plaintiff's Resilience Speech. Id. ¶ 45. Monroe
falsely described the Bracket as ranking photographs of classmates and falsely told the Board Plaintiff had never apologized
for his actions. Id. ¶¶ 45–46. Monroe also falsely stated to the Board that she had never told Plaintiff it was “really late” for
her to change her decision. Id. ¶ 46.
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On June 18, 2020, the Board rejected Plaintiff's appeal, stating in an email that they had considered Plaintiff's letter during
the meeting and chose to uphold Monroe's decision, but did not state their reasons for upholding the decision. Id. ¶ 47. When
Plaintiff requested an explanation and access to the minutes of the meeting, his request was denied. Id. ¶ 48. On June 20,
Plaintiff, now through an attorney, sought reconsideration of the Board's decision on the grounds that their actions violated his
rights to free speech, due process, and the requirements set forth in the District's Code of Conduct. Id. ¶ 49. The Board refused
to reconsider. Id. ¶ 50.
*3 On June 24, 2020, Plaintiff filed a petition with the Commissioner of Education appealing the Board's decision, asserting
violation of his right to free speech, due process, and to be free from discrimination, and requesting a stay of the Board's decision
so that Plaintiff's speech could be heard. Id. ¶ 51. The District opposed Plaintiff's request for a stay by filing a letter written
by Monroe. Id. ¶ 52. The letter falsely described the Bracket, falsely stated the substance of Monroe's phone conversation with
Plaintiff, asserted the Bracket was sexual harassment and that barring Plaintiff was necessary to protect female students from
being victimized, and included the email complaints Monroe relied upon to make her decision. Id. ¶ 52.
This was the first time Plaintiff was made aware of Monroe's erroneous understanding and description of the Bracket and the
content of the email complaints. Id. ¶ 53.
On June 25, 2020, the Commissioner denied Plaintiff's request for a stay, and the graduation ceremony took place the next day,
on June 26, 2020. Id. ¶ 55. The ceremony featured a female Caucasian student who spoke in Plaintiff's place. Id. ¶¶ 55–56, 70.
Nearly a year later, on June 21, 2021, the Commissioner dismissed Plaintiff's appeal as moot given that the graduation ceremony
had already occurred and the Commissioner could not grant meaningful relief. Id. ¶ 57. The Commissioner did, however, note
that Defendants’ “imposition of additional, punitive measures” years after a matter had been resolved “raise[d] substantial
questions of fairness ... and caution[ed] [Defendants] from taking similar action in the future.” Id.
Plaintiff instituted this action on September 16, 2021. See Dkt. No. 1. Plaintiff's Complaint sets forth federal claims brought
under 42 U.S.C. § 1983 (“Section 1983”) for First Amendment Retaliation (Count I), violation of First Amendment rights
(Count II), violation of Fourteenth Amendment substantive due process rights (Count III), violation of Fourteenth Amendment
procedural due process rights (Count IV), violation of Title IX of the Education Amendments of 1972, 20 U.S.C § 1681, due
to discrimination on the basis of sex in an educational program (Count V), and violation of Title VI of the Civil Rights Act, 42
U.S.C. § 2000d, due to discrimination on the basis of race or national origin (Count VI). Compl. at 20–24. Plaintiff also brings
state law claims alleging violation of New York Human Rights Law and District policies and Code of Conduct (Count VII),
breach of a contract created by the speech competition rules and procedures (Count VIII), violation of the District's express and
common law due process standards (Count IX), and negligent infliction of emotional distress (Count X). Id. at 24–30.
Defendants move to dismiss the Complaint under Federal Rule of Civil Procedure (“FRCP”) 12(b)(1) arguing that Plaintiff
lacks standing to obtain the relief he requests, and thus the Court does not have subject matter jurisdiction. See Defs.’ Mem at
3–5. Defendants also move for dismissal under FRCP 12(b)(6), arguing that (1) Plaintiff has not adequately pled the necessary
factors under Monell v. Dept. of Social Services, 436 U.S. 658, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978) to state a Section1983
claim against the District, (2) that Plaintiff's state law claims are barred due to Plaintiff's failure to timely serve a notice of claim
as required by state law, and (3) that even if Plaintiff's claims are not barred under Monell or notice of claim requirements,
Plaintiff has not pled facts sufficient to state a claim. Id. at 5–25.
III. LEGAL STANDARD
In evaluating a motion to dismiss made under Rule 12(b)(1) or (6), a court must accept as true “all material [factual] allegations
of the complaint” and “draw[ ] all reasonable inferences in favor of the plaintiff.” 1 Carter v. HealthPort Techs., LLC, 822 F.3d
47, 56–57 (2d Cir. 2016) (giving standard for Rule 12(b)(1)); Allaire Corp. v. Okumus, 433 F.3d 248, 249–50 (2d Cir. 2006)
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(same regarding Rule 12(b)(6)). “Nonetheless, conclusory allegations are not entitled to the assumption of truth.” Francis v.
Kings Park Manor, Inc., 992 F.3d 67, 72 (2d Cir. 2021).
*4 “To survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to ‘state a claim to
relief that is plausible on its face.’ ” Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009) (quoting
Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007)). A claim is plausible on its face
“when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for
the misconduct alleged.” Id. (citing Twombly, 550 U.S. at 556, 127 S.Ct. 1955). “[T]he pleading standard Rule 8 announces
does not require ‘detailed factual allegations,’ but it demands more than an unadorned, the-defendant-unlawfully-harmed-me
accusation.” Id. (citing Twombly, 550 U.S. at 555, 127 S.Ct. 1955).
IV. DISCUSSION
Defendants argue that the Complaint should be dismissed because (A) Plaintiff does not have standing, (B) Plaintiff's claims
are moot, (C) the Complaint does not establish municipal liability, (D) the Complaint does not establish Monroe's personal
involvement, and (E) Plaintiff has not met the notice of claim requirements necessary to bring his state law claims. Defs.’ Mem.
at 3–11. In addition, Defendants argue the Complaint does not allege facts sufficient to state a claim for (F) First Amendment
retaliation, (G) First Amendment viewpoint discrimination, (H) violation of Fourteenth Amendment substantive due process
rights, (I) violation of Fourteenth Amendment procedural due process rights, (J) violation of Title IX, and (K) violation of Title
VI. Id. at 11–23.
A. Rule 12(b)(1) Standing
Any party seeking to invoke the jurisdiction of a federal court to decide a case or controversy as contemplated in Article III of the
Constitution must demonstrate standing. Hollingsworth v. Perry, 570 U.S. 693, 704, 133 S.Ct. 2652, 186 L.Ed.2d 768 (2013).
To establish standing, a plaintiff must show that (1) he has suffered a concrete and particularized “injury in fact” that is actual or
imminent, rather than merely conjectural, (2) the injury is “fairly traceable to the challenged action of the defendant,” and (3) the
injury is “likely to be redressed by a favorable decision.” Id. at 704, 133 S.Ct. 2652 (citing Lujan v. Defs. of Wildlife, 504 U.S.
555, 560–61, 112 S.Ct. 2130, 119 L.Ed.2d 351 (1992)). The party invoking jurisdiction bears the burden of establishing these
elements and each “must be supported in the same way as any other matter on which the plaintiff bears the burden of proof, i.e.,
with the manner and degree of evidence required at the successive stages of the litigation.” Lujan, 504 U.S. at 561, 112 S.Ct.
2130. “[S]tanding is not dispensed in gross, and, accordingly, a plaintiff must demonstrate standing for each claim he seeks to
press and for each form of relief that is sought.” Davis v. FEC, 554 U.S. 724, 734, 128 S.Ct. 2759, 171 L.Ed.2d 737 (2008).
1. Concrete and Actual Injury in Fact
Plaintiff alleges in support of each of his claims that he suffered the following injuries: economic harm; Compl. ¶¶ 85, 88,
91, 94, 100, 104; prior and ongoing reputational damage; id. ¶¶ 77–81, 85, 88, 91, 94, 100, 104; emotional and psychological
distress; id. ¶¶ 85, 88, 91, 94, 100, 104; and legal expenses; id. ¶ 82. In support of Counts I–VI, Plaintiff also alleges harm in
the form of violations of his constitutional rights. Id. ¶¶ 83–104.
The Complaint does not allege any facts to support Plaintiff's assertion that he has suffered direct economic injuries as a result
of Defendants’ actions other than accumulation of attorney's fees. 2 Similarly, Plaintiff does not assert any facts supporting
his claim of emotional and psychological distress, other than to conclusorily state that Plaintiff “sustained emotional, [and]
psychological” injuries. Compl. ¶ 85. This is insufficient to confer standing. See Harry v. Total Gas & Power N. Am., Inc., 889
F.3d 104, 110 (2d Cir. 2018) (A plaintiff must “plead enough facts to make it plausible that they did indeed suffer the sort of
injury that would entitle them to relief.”); cf. Doe v. City of N.Y., No. 18-CV-670, 2018 WL 3824133, at *13 (E.D.N.Y. Aug. 9,
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2018) (finding plaintiff sufficiently alleged concrete emotional and psychological harm because she “allege[d] that she suffered
from ‘fright, anguish, shock, nervousness, and anxiety’ as a result of defendants’ action).
*5 However, the Court finds the facts alleged in the Complaint create a reasonable inference that Plaintiff suffered violations
of certain constitutional rights, which will be discussed further in Sections IV(F)–(K) of this opinion. See TransUnion LLC v.
Ramirez, ––– U.S. ––––, 141 S.Ct. 2190, 2204, 210 L.Ed.2d 568 (2021) (finding that “concrete harms” sufficient to establish
standing “include ... harms specified by the Constitution itself” such as violation of free speech rights) (citing Spokeo, Inc. v.
Robins, 578 U.S. 330, 340, 136 S.Ct. 1540, 194 L.Ed.2d 635 (2016)).
The Court holds similarly regarding Plaintiff's claim of reputational harm, which is also a concrete injury sufficient to confer
standing. See id. (“[C]oncrete harms” sufficient to establish standing “include, for example, reputational harms ...”) (citing
Meese v. Keene, 481 U.S. 465, 473, 107 S.Ct. 1862, 95 L.Ed.2d 415 (1987)). Plaintiff alleges that Defendants’ decision to
bar him from speaking “caused some classmates to believe [Plaintiff] had engaged in misconduct,” and that as a result he was
excluded from certain post-graduation activities. Compl. ¶ 78. Plaintiff further asserts that Defendants’ actions led classmates
to believe he “had not honored his commitments to Principal Doemel, [and] had not apologized for his 2018 errors” and that
this resulted in “continued vilification and stigmatization.” Id. ¶ 80–81. These allegations are sufficient to create a reasonable
inference that Plaintiff suffered concrete reputational harm. See Bernheim v. Litt, 79 F.3d 318 (2d Cir. 1996) (finding “legally
cognizable harm” in part due to plaintiff's claim that her reputation had been damaged by defendant's accusations of dishonesty).
2. Traceability of the Harm to the Challenged Actions of Defendants
At the pleading stage of litigation, a plaintiff's “burden ... of alleging that their injury is fairly traceable to the challenged act
‘is relatively modest,’ ” and is a standard lower than proximate cause. Rothstein v. UBS AG, 708 F.3d 82, 92 (2d Cir. 2013)
(quoting Bennett v. Spear, 520 U.S. 154, 171, 117 S.Ct. 1154, 137 L.Ed.2d 281 (1997)).
Here, Plaintiff's alleged injuries are “fairly traceable” to Defendants’ challenged actions. Plaintiff alleges that he suffered
reputational and constitutional injuries as a direct result of Defendants’ decision to disinvite him from speaking at graduation
and the process by which they made that decision. See generally Compl. ¶¶ 83–125. Indeed, Defendants do not argue that the
alleged injuries are not traceable to their alleged conduct. See generally Defs.’ Mem.
3. Likelihood that Alleged Injuries will be Redressed by a Favorable Decision
Finally, these harms, if proven, are likely redressable by a favorable decision. It is well-settled that violations of constitutional
rights may be remedied with money damages under Section 1983. Carey v. Piphus, 435 U.S. 247, 266, 98 S.Ct. 1042, 55 L.Ed.2d
252 (1978) (“[T]he denial of procedural due process should be actionable for nominal damages without proof of actual injury
Section 1983.”) Beyah v. Coughlin, 789 F. 2d 986, 989 (2d Cir. 1986) (“[I]t is now well established that if [a plaintiff] can
prove that he was deprived of a constitutionally protected right, ... [he] will be entitled to recover at least nominal damages.”).
Further, reputational injury is adequately redressed by both money damages and declaratory relief. See Under Seal v. Under
Seal, 273 F. Supp. 3d 460, 473 (S.D.N.Y. 2017) (“[R]eputational harm ... is generally compensable with money damages.”);
Derrick Storms v. United States, No. 13-CV-811, 2015 WL 1196592, at *21 (E.D.N.Y. Mar. 16, 2015) (exercising discretion in
deciding whether to grant declaratory relief to remedy reputational harm because “[f]ederal courts have ‘unique and substantial
discretion in deciding whether to declare the rights of litigants’ under the Declaratory Judgment Act.” (quoting Wilton v. Seven
Falls Co., 515 U.S. 277, 286, 115 S.Ct. 2137, 132 L.Ed.2d 214 (1995))). 3
*6 The Court thus finds Plaintiff has standing to bring each of his claims.
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4. Standing for Injunctive and Declaratory Relief
As stated above, a Plaintiff must establish standing, not only for each claim he brings, but also “for each form of relief that is
sought.” Davis, 554 U.S. at 734, 128 S.Ct. 2759. Although the Court has decided that Plaintiff has alleged injuries sufficient to
establish standing to bring each of his claims, it must determine whether Plaintiff has standing to request the declaratory 4 and
injunctive 5 and declaratory relief requested in sections (a) through (n) of his prayer for relief. See Compl. at 30–32.
“A plaintiff seeking injunctive or declaratory relief cannot rely on past injury to satisfy the injury requirement but must show
a likelihood that he or she will be injured in the future.” Deshawn E. by Charlotte E. v. Safir, 156 F.3d 340, 344 (2d Cir. 1998)
(citing City of Los Angeles v. Lyons, 461 U.S. 95, 105-06, 103 S.Ct. 1660, 75 L.Ed.2d 675 (1983)). Defendants argue Plaintiff
does not have standing to pursue injunctive or declaratory relief because “Plaintiff has not and cannot possibly allege that any of
the alleged harms he suffered are likely to recur” given that he has graduated and no longer attends a District school. Defs.’ Mem.
at 4. Plaintiff responds that the requests for relief set forth in sections (a) through (m) of the Prayer for Relief “are necessary to
correct the record, to prevent future harm to Wang, [and] to clear his reputation.” Resp. at 4 n.1.
*7 Defendants are correct that when requesting prospective injunctive relief for a past, discrete harm, a plaintiff must allege
facts from which it may be inferred that the harm is likely to recur. See Deshawn, 156 F.3d at 344. A plaintiff is not, however,
required to demonstrate a likelihood of future harm where he alleges not only past damage but continuing reputational injury. 6
See Pungitore v. Barbera, 506 F. App'x 40, 41 (2d. Cir 2012) (to establish standing “when seeking prospective injunctive relief,
the plaintiff must prove the likelihood of future or continuing harm.” (emphasis original)); Storms, 2015 WL 1196592, at
*23 (“The Court's authority to adjudicate claims for declaratory relief is discretionary” to remedy ongoing reputational injury.
(quoting Wilton, 515 U.S. at 286, 115 S.Ct. 2137)). The Complaint here alleges precisely this type of continuing reputational
injury. See Compl. ¶ 81 (“The District's improper decisions and actions undermined and damaged Wang's reputation ... resulting
in continued vilification and stigmatization[.]”); Resp. at 4 (“Nothing indicates that Defendants have corrected Monroe's false
statements or sought to eliminate or minimize continuing harm to Wang.”). Plaintiff has thus established standing for the relief
requested in sections (a) through (m) of his Prayer for relief—which deals with declarations that Defendants’ actions were
improper, expunging the records of Plaintiff's disciplines, and otherwise remedying the harm to his reputation, Compl. at 30–
32—may reasonably remedy this alleged ongoing reputational harm.
*8 The Court finds differently regarding section (n) of the Prayer for Relief. Here, Plaintiff requests that the Court order
the District to “implement The Dignity For All Students Act to minimize the continuing District discrimination and harm to
Wang and others similarly situated and to file applicable reports required by such law regarding the Defendants’ unlawful
discrimination against Wang.” Id. at 32. Plaintiff claims this relief “is necessary to prevent harm to Wang and similarly situated
District students.” Resp. at 4 n.1. The Complaint does not contain any allegations of specific continuing or future discriminatory
acts against Wang perpetrated by the District. Further, given that Plaintiff no longer attends a District school and has not alleged
any interaction with the District beyond this litigation, the Complaint does not contain allegations from which the Court could
reasonably infer a future, recurring, or continuing harm to Wang that would be addressed by this relief. Plaintiff also does
not have standing to request relief on behalf of other students who are not parties to this litigation, regardless of whether they
are “similarly situated.” See Lujan, 504 U.S. at 560–61, 112 S.Ct. 2130 (1992) (“[T]he irreducible constitutional minimum of
standing is [in part] that ... the injury must affect the plaintiff in a personal and individual way.”); Kiryas Joel All. v. Vill. of
Kiryas Joel, 495 F. App'x 183, 189 (2d Cir. 2012) (upholding dismissal of claims made on behalf of non-parties due to lack of
standing because “the rights [§ 1983] secures [are] personal to those purportedly injured” (quoting Nnebe v. Daus, 644 F.3d
147, 156 (2d Cir. 2011)).
Thus, the Court finds Plaintiff does not have standing to request the relief set forth in section (n) of his Prayer for Relief.
B. Mootness
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Defendants argue that Plaintiff's claims for declaratory relief are moot because Plaintiff has graduated. Reply at 2–3; Defs.’
Mem. at 3.
The mootness doctrine, mandated by the Article III “case or controversy” requirement, forbids federal courts from adjudicating
matters “that no longer present an actual dispute between parties.” Catanzano v. Wing, 277 F.3d 99, 107 (2d Cir. 2001). Thus,
courts may not entertain any federal action “when the question sought to be adjudicated has been mooted by subsequent
developments.” Velvet Underground v. Andy Warhol Found. for the Visual Arts, Inc., 890 F. Supp. 2d 398, 403 (S.D.N.Y. 2012)
(citation omitted).
An issue is moot “if the defendant can demonstrate that (1) there is no reasonable expectation that the alleged violation will
recur and (2) interim relief or events have completely and irrevocably eradicated the effects of the alleged violation.” NextG
Networks of NY, Inc. v. City of New York, 513 F.3d 49, 54 (2d Cir. 2008) (citing Granite State Outdoor Adver., Inc. v. Town
of Orange, Conn., 303 F.3d 450, 451 (2d Cir. 2002)).
Defendants have failed to establish the second prong of the mootness test. As stated above, the Complaint alleges, not only
past infringement on constitutional and federal statutory rights, but present and ongoing reputational harm. See e.g., Compl.
¶ 81 (“The District's improper decisions and actions ... result[ed] in continued vilification and stigmatization of Wang.”).
Accordingly, Defendants have not demonstrated that “interim relief or events have completely and irrevocably eradicated the
effects of the alleged violation[,]” and the issue is not moot. See Storms, 2015 WL 1196592, at *22 (finding claim not moot in
part because the defendants’ actions “continue[d] to destroy Plaintiffs’ reputations ...”) (quoting Clear Channel Outdoor, Inc.
v. City of New York, 594 F.3d 94, 110 (2d Cir. 2010)).
C. Municipal Liability Against the District Under Rule 12(b)(6)
Plaintiff attempts to establish municipal liability against the District under Monell v. Dep't of Soc. Services, 436 U.S. 658,
98 S.Ct. 2018, 56 L.Ed.2d 611 (1978). Plaintiff argues the District deprived him of his constitutional rights, first through the
actions of Superintendent Monroe when she initially decided to remove Plaintiff as graduation speaker, failed to investigate the
complaints made against him, and provided false information to the Board of Education, Compl. ¶¶ 23, 27, 45, and then through
the Board of Education when they “ratified and approved Monroe's decision and actions,” id. ¶ 47.
“Municipal entities, including school districts, are ‘persons’ within the meaning of § 1983 and therefore subject to suit under
that provision.” Kimble v. Kingston City School Dist., 792 Fed. App'x 80, 81 (2d Cir. 2019) (citing Nagle v. Marron, 663 F.3d
100, 116 (2d Cir. 2011)). To establish Monell liability against a municipal entity under Section 1983, a plaintiff must show “(1)
a municipal policy or custom that (2) causes the plaintiff to be subjected to (3) the deprivation of a constitutional right.” Agosto
v. N.Y.C. Dep't of Educ., 982 F.3d 86, 97 (2d Cir. 2020).
*9 A plaintiff may establish the first Monell prong—existence of policy or custom—against a school district by establishing
one of the following: (A) “that a district employee was acting pursuant to an expressly adopted official policy;” (B) “that a
district employee was acting pursuant to a longstanding practice or custom;” or (C) that “an official with final policymaking
authority took action regarding, or made the specific decision with respect to” the adverse action. Kimble, 792 Fed. App'x at
81 (quoting Hurdle v. Bd. of Educ., 113 F. App'x 423, 424–25 (2d Cir. 2004)).
When it is alleged under prong (1)(C) that the violative action or decision was made by a final policymaker, a municipality
may be liable “for [even] a single decision.” Pembaur v. City of Cincinnati, 475 U.S. 469, 480, 106 S.Ct. 1292, 89 L.Ed.2d 452
(1986). Further, whether a particular official possessed final policymaking authority is a legal question that must be answered
based on state law and resolved by the court. Agosto, 982 F.3d at 97. To have final policymaking authority, the official in question
“with respect to the conduct challenged, [ ] must be ‘responsible under state law for making policy in that area of the
[municipality's] business’ or must ‘have the power to make official policy on a particular issue,’ or must ‘possess[ ] final
authority to establish municipal policy with respect to the action ordered.’ ”
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Hurdle, 113 Fed. App'x at 425 (emphasis in original) (citations omitted) (quoting Jeffes v. Barnes, 208 F.3d 49, 57 (2d Cir.
2000)). In sum, the Court should search through “state and local positive law, as well as custom or usage having the force of
law,” Jeffes, 208 F.3d at 57 (2d Cir. 2000), to determine who has “authority to adopt rules for the conduct of government” with
respect to the area of conduct at issue, Hurdle, 113 Fed. App'x at 427.
Finally, where an official with policymaking authority approves a subordinate's decision and the basis for it, this ratification
is chargeable to the municipality as a decision by one with final policymaking authority. City of St. Louis v. Praprotnik, 485
U.S. 112, 127, 108 S.Ct. 915, 99 L.Ed.2d 107 (1988).
Defendants argue, and the Court agrees, that Plaintiff has not alleged the existence of an official policy or a longstanding custom
sufficient to meet prongs (A) or (B) of Kimble. 7 Thus, to establish Monell liability, Plaintiff must have alleged under Kimble
prong (C) that the allegedly violative actions were committed by officials with final policymaking authority in the particular
area of the municipality's business related to the actions. See Jeffes, 208 F.3d at 57 (where a plaintiff does not allege actions
were taken pursuant to a policy or custom, “but rather that they were taken or caused by an official whose actions represent
official policy, the court must determine whether that official had final policymaking authority in the particular area involved.”).
*10 This raises two additional issues. The Court must determined, first, the appropriate “area” of the municipality's business
at issue, and second, whether the relevant actors here, Monroe and the Board of Education, had final policymaking authority
in that area.
1. Appropriate Area of the Municipality's Business
In most disputes, the area of the municipality's business at issue is readily apparent and need not be directly analyzed by a court.
See, e.g., Hurdle, 113 Fed. App'x at 426 (dealing with authority to transfer employees); Kimble, 792 Fed. App'x at 82 (dealing
with hiring authority); Konits v. Valley Stream Cent. High Sch. Dist., No. 01-CV-6763, 2006 WL 224188, at *5 (E.D.N.Y
2006) (dealing with hiring authority). In other cases, such as this, the question is more nuanced. See, e.g., Jeffes, 208 F.3d 49,
57 (where plaintiff alleged First Amendment retaliation due to “code of silence” at county jail, finding correct policymaking
“area” to be “the duties and obligations of the sheriff's staff members toward each other with respect to their exercise of First
Amendment rights” and not generally “ ‘personnel’ and ‘employment’ ” matters as district court had determined).
Here, Defendants appear to argue that the relevant policymaking area is policy regarding the selection of graduation ceremony
speakers. Defs.’ Mem. at 6. Defendants argue Plaintiff cannot establish that either Monroe or the Board are final policymakers
because the Complaint alleges “no ‘other person’ had the authority to ‘reject or overrule the Speech Committee's selections.”
Id. (citing Compl. ¶ 25); see also Reply at 3.
Even assuming Defendants have correctly identified “selection of graduation speakers” as the correct area of policymaking
authority, there are two problems with this argument. First, it is evident that, whether Monroe and the Board officially given
authority to overrule the Selection Committee or not, they did in reality overrule them, and thus had power to do so. Compl.
¶¶ 20, 47. Accordingly, it seems unlikely that the Committee was the final decisionmaker in practice. Second, even if the
Committee was the final decisionmaker on this issue, there is a meaningful distinction between a final decisionmaker and
a final policymaker. See Agosto, 982 F.3d at 98 (“It is not enough that an official had discretion to make a decision that
was unreviewable ... [rather, he must be] responsible under state law for making policy in that area of the municipality's
business” (citing Anthony v. City of New York, 339 F.3d 129, 139 (2d Cir. 2003)); Hurdle, 113 Fed. App'x at 427 (“That a
particular agent is the apex of a bureaucracy makes the decision ‘final’ but does not forge a link between ‘finality’ and ‘policy.’
”). Regardless of whether Monroe and the Board had official authority to review and overrule the Committee, and therefore
may not have been final decisionmakers, they could still be considered final policymakers.
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However, Defendants’ argument suffers from a broader problem. As Defendants state multiple times, their actions were not
done in the course of simply choosing a speaker for a graduation ceremony, but rather in response to Plaintiffs’ past actions
and complaints received regarding those actions. Defs.’ Mem. at 8, 9, 14, 15, 16. Thus, according to the allegations in the
Complaint, Monroe and the Board's actions are more accurately described as punitive. Defendants were attempting to remedy
a past wrong committed by a student, as they saw it, and intended to deal with conduct they believed endangered the morals or
welfare of other students. Id. at 14 (“Defendants believed that ‘the bracket was sexual harassment and that barring [Plaintiff]
from speaking was needed to protect females from being victimized.’ ”). Indeed, even the Commissioner described their actions
as a “punitive measure in connection with a two-year old disciplinary incident.” Compl. ¶ 57. The specific policymaking area
at issue is then more accurately described as punishment of students and regulation of student behavior.
2. Defendants’ Final Policymaking Authority
*11 The Court thus reaches the second issue: whether Monroe or the Board had final policymaking authority regarding
disciplining students or remedying past behavior, such that their actions constitute a municipal policy, thereby allowing the
School District to be held liable under Monell?
The Court finds that Monroe, as Superintendent of the School District, cannot be considered a final policymaker regarding
disciplinary matters. New York law grants superintendents the power to enforce provisions of law and “all rules and regulations
relating to the management of the schools” but not to create rules or policies of their own. N.Y. Educ. Law § 1711(1)(b); see also
Port Washington Teachers’ Ass'n v. Bd. of Educ. of Port Washington Union Free Sch. District, 478 F.3d 494, 500–501 (2d Cir.
2007). The Superintendent may speak on all matters before the Board but has no vote on Board decisions. Id. § 1711(1)(a). The
Superintendent is also “under the direction of the board of education.” N.Y. Educ. Law. 1711(3). Because the Superintendent
does not have authority to create policy regarding student discipline and punishment, and acts under the direction of the Board,
the Court finds Monroe is not a final policymaker for the purposes of Plaintiff's claims. See Jones v. Bay Shore Union Free
Sch. Dist., 170 F. Supp. 3d 420, 438 (E.D.N.Y.) (holding that superintendent is not final policymaker regarding regulation of
conduct on district property) aff'd, 666 F. App'x 92 (2d Cir. 2016).
The Court reaches a different conclusion regarding the Board of Education. New York Education Law § 1709(2) grants boards
of education the power “[t]o establish such rules and regulations [as shall seem proper] concerning the order and discipline of
the schools.” The authority granted under § 1709 includes authority to enact policies to discipline students for misbehavior or
acts that endanger the morals or welfare of others, even where such behavior occurs off campus. See Hunt v. Wilson, 72 Misc. 2d
360, 363–64, 339 N.Y.S.2d 287 (N.Y. Sup. Ct. 1972) (finding that § 1709 grants a school board authority to establish rules and
regulations “concerning the order and discipline of the schools” and thus gives authority to “deal with pupils whose conduct may
endanger the safety, morals, health or welfare of others.”); Appeal of T.W. and P.K., 2006 NY Educ. Dept. LEXIS 134 at *5–6
(N.Y. St. Educ. Dep't September 26, 2006) (stating that a board's authority to impose discipline extends to “events which occur
off school property”). The Court “would not be justified in assuming that municipal policymaking authority lies somewhere
other than where the applicable law purports to put it.” Praprotnik, 485 U.S. 112 at 126, 108 S.Ct. 915, 99 L.Ed.2d 107.
Thus, while Superintendent Monroe is not a final policymaker regarding the punitive actions and process that Plaintiff complains
of, the Board is. See T.E. v. Pine Bush Cent. Sch. Dist., 58 F. Supp. 3d 332, 372–73 (S.D.N.Y. 2014) (finding principal and
superintendent not final policymakers because the boards of education have rule-making authority to handle order and discipline
of schools under § 1709); Bay Shore, 170 F. Supp. 3d at 438 (E.D.N.Y.) (“[W]hile a Superintendent may be a decision-maker,
the Board of Education is the final policymaker” regarding regulation of conduct on district property, due to authority given
board in N.Y. Educ Law §§ 1708–1709).
*12 Further, the Complaint alleges the Board directly took actions that violated Plaintiff's rights by rescinding his invitation to
speak, determining the process by which the decision was made, and providing allegedly false information to the Commissioner
to oppose Plaintiff's stay, Compl. ¶¶ 47–52, and also purportedly ratified Monroe's decision and the basis for it, which in
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themselves violated Plaintiff's rights, Compl. ¶47; see also Praprotnik, 485 U.S. 112, 127, 108 S.Ct. 915, 99 L.Ed.2d 107 (“If
the authorized policymakers approve a subordinate's decision and the basis for it, their ratification would be chargeable to the
municipality because their decision is final”).
Returning briefly to the overarching standard, it is not disputed that Plaintiff has sufficiently alleged that Defendants’ action
caused the asserted constitutional violations, and thus has met the second and third prongs of Monell. The Court will discuss
further below whether Plaintiff has alleged facts sufficient to establish the respective constitutional violations, but for now the
Court finds Plaintiff has alleged sufficient facts to establish Monell liability against the District. Accordingly, the Court denies
Defendants’ motion to dismiss on Monell grounds.
D. Personal Involvement
Defendants contend Plaintiff has not established that Monroe 8 was personally involved in the alleged constitutional violations as
required by Tangreti v. Bachmann, 983 F.3d 609, 618 (2d Cir. 2020). 9 Defendants’ argue that “Plaintiff has failed to adequately
plead underlying constitutional violations against the District or Superintendent Monroe, and thus cannot establish any of the
elements of these claims against Superintendent Monroe directly.” Defs.’ Mem. at 8. Because Defendants merely argue Plaintiff
has not adequately pled federal claims, their personal involvement argument merges with their Rule 12(b)(6) arguments and
will be addressed in the respective sections below that discuss whether Plaintiff has adequately pled his federal law claims.
See infra Sections IV(F)–(L).
E. Notice of Claim Requirements for State Law Claims
State notice of claim requirements are substantive law that must be applied by federal courts in deciding pendent state law
claims. Felder v. Casey, 487 U.S. 131, 151, 108 S.Ct. 2302, 101 L.Ed.2d 123 (1988); Promisel v. First American Artificial
Flowers, 943 F.2d 251 (2d Cir.1991) (“If a state would not recognize a plaintiff's right to bring a state claim in state court, a
federal court ... [must] not allow that claim to be appended to a federal law claim in federal court.”).
*13 New York Education Law § 3813(1) (“Section 3813”) mandates that:
No ... claim against the district ... shall be prosecuted or maintained against any school district, board of
education, ... or any officer of a school district, board of education, ... unless it shall appear by and as an
allegation in the complaint ... that a written verified claim upon which such action or special proceeding
is founded was presented to the governing body of said district or school within three months after the
accrual of such claim, and that the officer or body having the power to adjust or pay said claim has
neglected or refused to make an adjustment or payment thereof for thirty days after such presentment.
Section 3813(2) sets out one exception, requiring actions “founded upon tort” against a party named in § 3813(1) to instead
comply with the notice of claim requirements set forth in New York General Municipal Law § 50-i (“Section 50-i”), which in turn
incorporates the requirements of General Municipal Law § 50-e (“Section 50-e”). See Amorosi v. S. Colonie Ind. Cent. School
Dist., 9 N.Y.3d 367, 370, 849 N.Y.S.2d 485, 880 N.E.2d 6 (N.Y. 2007) (“Tort claims against a school district are excepted from
[Section 3813’s] notice requirements, and must comply with the notice requirements found in General Municipal Law § 50-e.”).
The requirements in Sections 50-i and 50-e are similar to those found in Section 3813(1). These two sections mandate that a
verified notice of claim be served “on the public corporation against which the claim is made” by personal delivery, certified
mail, or electronically if the public corporation pertains to a city with a population over one million. Section 50-e(1)–(3). It
also must “appear by and as an allegation in the complaint or moving papers that at least thirty days have elapsed since the
service of such notice.” Section 50-i(1).
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New York's notice of claim requirements are strictly interpreted by New York courts, and no variation is tolerated. See Santiago
v. Newburgh Enlarged City Sch. Dist., 434 F. Supp. 2d 193, 196 n.2 (S.D.N.Y. 2006) (holding that, regarding notice of
claim requirements, “[t]he New York Court of Appeals has clearly stated that no variation from the law's requirement will be
countenanced.”); Parochial Bus Sys., Inc. v. Bd. of Educ., 60 N.Y.2d 539, 548, 470 N.Y.S.2d 564, 458 N.E.2d 1241 (1983)
(“[W]here the ‘legislature has said that a particular form of notice, conveyed with particular details to particular public officers,
shall be a prerequisite to the right to sue [,] [the] courts are without power to substitute something else.’ ”) (quoting Thomann
v. Rochester, 256 N.Y. 165, 172, 176 N.E. 129 (1931)).
Plaintiff's state law claims comprise claims for discrimination in violation of New York Human Rights Law, breach of contract,
violation of common law due process, and negligent infliction of emotional distress. Compl. ¶¶ 105–25. Each of these claims is
subject to either the notice of claim requirements in Section 3813 or Sections 50-i, and 50-e. Lewinter v. New York City Dept.
of Educ., 2010 WL 2746334, at *2 (S.D.N.Y. 2010) (“The Legislature has spoken unequivocally that no action or proceeding
may be prosecuted or maintained against any school district or board of education unless a notice of claim has been presented
to the governing body.”). 10
*14 Plaintiff argues he met the notice requirements by filing various documents with the Commissioner of Education. Resp. at
8–9. But it is not sufficient that Plaintiff now attempts to factually establish that he met the notice requirements; rather, he must
have pled in the Complaint that he did so. Santiago, 434 F. Supp. 2d at 196 (“The Education Law requires that it appear from the
face of the complaint that the plaintiff filed a timely notice of claim.”); Dodson v. Bd. of Educ. of the Val. Stream Union Free
School Dist., 44 F. Supp. 3d 240, 250 (E.D.N.Y. 2014) (“Under New York General Municipal Law § 50-e, a plaintiff must, inter
alia, serve a notice of claim within ninety days after the claim arises and plead that it has been served.” (emphasis in original)).
The Complaint does not explicitly allege that Plaintiff served a “notice of claim” in any form. See generally Compl. It does
briefly discuss the verified petition Plaintiff filed with the Commissioner of Education as part of his appeal, with a copy “emailed
to the District.” Compl. ¶ 51.
The Court finds these allegations in the Complaint, on their own, are insufficient to meet the requirements of either Section
3813 or 50-i and 50-e. There are no allegations from which it appears the petition was verified as required by Sections 3813(1)
and 50-i, that it was served specifically on the Board of Education as required by Section 3813(1), 11 or that it was served in
a form acceptable under Section 50-e(3): by personal delivery, certified mail, or, if the public corporation pertains to certain
cities, “by electronic means in a form and manner prescribed by such city.”
Plaintiff, however, implores the Court to look beyond the Complaint and consider the contents of three documents that he
attaches to his Response: a declaration submitted by his attorney, Dkt. No 17-1 (“Sweeney Declaration”), the verified petition
he sent to the Commissioner of Education on June 24, 2020, Dkt. 17-2 (“Wang Petition”), and the supporting affidavit dated
August 10, 2020, which was also served as part of Plaintiff's appeal to the Commissioner, Dkt. 17-3 (“Wang Affidavit”). Resp.
at 2, 9. Plaintiff asserts these documents establish that he has complied with the New York State notice requirements. Id.
Before determining whether these documents indeed establish that Plaintiff served a valid notice of claim, the Court must first
determine if it can take the contents of these documents into account at this stage of litigation.
1. Consideration of Verified Petition, Affidavit, and Attorney Declaration
A court adjudicating a 12(b)(6) motion to dismiss may only review a narrow set of materials. 12 Generally, courts may not look
beyond “facts stated on the face of the complaint, ... documents appended to the complaint or incorporated in the complaint by
reference, and ... matters of which judicial notice may be taken.” Goel v. Bunge, Ltd., 820 F.3d 554, 558 (2d Cir. 2016) (quoting
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Concord Assocs., L.P. v. Entm't Props. Tr., 817 F.3d 46, 51 n.2 (2d Cir. 2016)). In some cases, a document that is neither attached
nor incorporated by reference may still be considered on a motion to dismiss where it is “integral” to the complaint. Id. at 559.
*15 It is undisputed that none of the documents Plaintiff now produces were appended to the Complaint or are documents
of which the court may take judicial notice. Thus, the Court must determine if the documents are integral to the Complaint or
incorporated therein by reference.
A document is integral “where the complaint relies heavily upon its terms and effect.” Chambers v. Time Warner, Inc., 282 F.3d
147, 153 (2d Cir. 2002). Generally, an integral document is “a contract or other legal document containing obligations upon
which the plaintiff's complaint stands or falls” but which was not attached to the complaint. Goel, 820 F.3d at 559.
Incorporation by reference requires more than merely referencing a document; even quoting from a document in limited form
does not render the document incorporated. Cosmas v. Hassett, 886 F.2d 8, 13 (2d Cir. 1989) (“Limited quotation does not
constitute incorporation by reference.”) (quoting Goldman v. Belden, 754 F.2d 1059, 1066 (2d Cir. 1985)) (additional citations
omitted); United States v. Int'l Longshoremen's Ass'n, 518 F. Supp. 2d 422, 452 (E.D.N.Y. 2007) (“[A]n extraneous document
is not incorporated by reference into the complaint where [t]he amended complaint merely discussed these documents and
presented short quotations from them.”) (citation omitted). The line between incorporating by reference and not doing so is fine,
and, when the document is merely referenced or quoted, the determination “depends on the extent to which it is relied upon and
made use of in the Complaint.” Kassover v. Essence Partners, No. 04-CV-5505, 2007 WL 9672541, at *3 (E.D.N.Y. Mar. 31,
2007) (citing Kas v. Chase Manhattan Bank, N,A,, No. 90-CV-44, 1990 WL 113185, at *3 n.2 (S.D.N.Y. July 30, 1990)).
a. Sweeney Declaration
It is well-settled that a court may not consider factual averments contained in an attorney's declaration at the motion to dismiss
stage. Fair Hous. Justice Ctr. Inc. v. Lighthouse Living LLC, No. 20-CV-4066, 2021 WL 4267695, at *3 (S.D.N.Y. Sep. 20,
2021) (citing Amadei v. Nielsen, 348 F. Supp. 3d 145, 155 (E.D.N.Y. 2018)). Accordingly, the Court will not consider the factual
assertions made by Plaintiff's attorney in the Sweeney Declaration.
b. Wang Affidavit
The Court does not find the Wang Affidavit integral or incorporated by reference. The Complaint does not so much as mention
the Wang Affidavit, and thus it cannot be said the Complaint relies “heavily” upon the affidavit's terms and effect. See Chambers
v. Time Warner, Inc., 282 F.3d 147, 154 (2d Cir.2002) (finding document not integral in part because “[t]he Amended Complaint
does not refer to the [it]”); Yang Zhao v. Keuka Coll., 264 F. Supp. 3d 482 (W.D.N.Y. 2017) (finding document not integral
where “the amended complaint makes no mention of [it]”). Additionally, a document that is not referenced could clearly not
be said to be incorporated by reference.
c. Wang Petition
As noted above, the Complaint does briefly refer to the Wang Petition:
To pursue his N.Y. administrative appeal rights and remedies, Wang filed a Petition with the
Commissioner of Education by email on June 24, 2020 (with copy emailed to the District) and by direct
delivery on June 25, 2020 that appealed the District's decisions and exclusionary actions, asserting that
the District had violated Wang's rights to freedom of speech, to due process of law, and to be free from
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illegal discrimination, and sought a stay to allow Wang's recorded speech to be heard at the graduation
ceremony.
*16 Compl. ¶ 51. The Complaint's only other reference to the Wang Petition is to state it was dismissed by the Commissioner.
Id. ¶ 57.
The Court does not find that this mention in a single paragraph allows for a reasonable inference that the Complaint relies
“heavily” on the Wang Petition's terms and effects. Plaintiff merely references a document from a separate proceeding. The
terms and content of that document do not form the basis upon which Plaintiff's claims will stand or fall, such that the document
is “integral” to the Complaint. Compare Goel, 820 F.3d at 560 (finding document from separate, related case not integral to
complaint because complaint could not be said to “heavily rely on the terms and effect of [the] testimony.”); with Optionality
Consulting Pte. Ltd. v. Nekos, No. 18-CV-5393, 2019 WL 4523469, at *6 (S.D.N.Y. Sep. 18, 2019) (finding written draft
agreement integral where it was a written version of the oral agreement upon which plaintiff's claims were based); and Cruz
v. United Auto. Workers Union Local 2300, No. 18-CV-0048, 2019 WL 3239843, at *15 (N.D.N.Y. July 18, 2019) (finding
collective bargaining agreement and union constitution integral because plaintiff's claim relied heavily on their terms and effects
of the documents).
Neither does the Court find the Wang Petition is incorporated by reference. As stated above, merely referencing a document,
even quoting from it in limited form, does not render the document incorporated. Cosmas, 886 F.2d at 13. A determination,
“depends on the extent to which it is relied upon and made use of in the Complaint.” Kassover v. Essence Partners, No. 04-
CV-5505, 2007 WL 9672541, at *3 (E.D.N.Y. Mar. 31, 2007) (citing Kas v. Chase Manhattan Bank, N.A., No. 90-CV-44, 1990
WL 113185, at *3 n.2 (S.D.N.Y. July 30, 1990)). Here, the Court finds the scant references to the Petition, merely informing
the Court of the fact of its filing in a separate proceeding, are insufficient to render it incorporated by reference. Compare
Cosmas, 886 F.2d at 13 (finding documents not incorporated by reference where complaint “merely discussed these documents
and presented short quotations from them.”) with Holloway v. King, 161 F. App'x 122, 124 (2d Cir. 2005) (finding document
incorporated where the complaint was “replete” with references to it.).
2. Even if the Wang Petition is Considered, Plaintiff has not Pled Compliance with New York Notice of Claim Requirements
Further, even if the Court were to construe the Wang Petition as incorporated by reference, Plaintiff would still not have
sufficiently pled conformance with the requirements of either Section 3813 or 50-e. While the Wang Petition is verified, it does
not establish that service was effected upon the Board of Education as required by Section 3813, or in a manner acceptable
under 50-e(3).
Again, New York Courts apply the requirements of the notice of claim laws strictly, even if the results are harsh. See Varsity Tr.,
Inc. v. Bd. Of Educ. Of City of New York, 5 N.Y.3d 532, 536, 806 N.Y.S.2d 457, 840 N.E.2d 569 (2005) (“We have repeatedly
rejected, and now reject again, proposals to compromise the strict statutory notice of claim requirement, because to do so would
lead to uncertainty and vexing disputes.”); Parochial, 60 N.Y.2d at 548, 470 N.Y.S.2d 564, 458 N.E.2d 1241 (“Nor may a
claimant be relieved of a positive statutory mandate simply because no prejudice has resulted, even to avoid a harsh result.”).
Thus, the Court finds that Plaintiff has not pled compliance with New York State notice of claim requirements and Plaintiff's
state law claims must be dismissed. Lewinter, 2010 WL 2746334, at *2 (“[F]ailure to plead compliance with New York's notice
of claim requirements mandates dismissal”). 13
F. First Amendment Retaliation
*17 The Court notes at the outset of its analysis of Plaintiff's First Amendment claims that the facts presented in this case
are unique. First Amendment cases brought in the scholastic context usually deal either with school officials punishing past
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speech, see, e.g., Mahanoy Area Sch. Dist. v. B.L., ––– U.S. ––––, 141 S. Ct. 2038, 2043, 210 L.Ed.2d 403 (2021) (removing
student from cheerleading squad after she criticized school and team); Cox, 654 F.3d at 272 (suspending student for writing
essay describing how he would commit suicide in front of friends), or school officials censoring or preventing future speech,
see, e.g., A.M. ex rel. McKay v. Taconic Hills Cent. School Dist., 510 Fed. App'x 3, 6 (2d Cir. 2013) (forcing student to remove
sentence from graduation speech that was deemed “too religious”); Peck v. Baldwinsville Cent. School Dist., 426 F. 3d. 617,
622 (2d Cir. 2005) (preventing student from displaying poster containing religious imagery at assembly). Here, by contrast,
there are two relevant sets of speech: the speech embodied in the Bracket and Plaintiff's book, and the speech Plaintiff intended
to give at the graduation ceremony. The motivation and intent of defendant government officials is key to inquiries regarding
First Amendment violations. The existence of these two, separate instances of speech potentially adds a layer of complexity
to that inquiry.
Plaintiff's first speech-related claim alleges that Defendants retaliated against him due to the first set of speech, contained in the
Bracket and book. See Compl. ¶¶ 83–85. To succeed on a claim of First Amendment retaliation, a plaintiff must establish that:
“(1) his speech or conduct was protected by the First Amendment; (2) the defendant took an adverse action against him; and (3)
there was a causal connection between this adverse action and the protected speech.” Cox v. Warwick Val. Cent. School Dist.,
654 F.3d 267, 272 (2d Cir. 2011) (citing Scott v. Coughlin, 344 F.3d 282, 287 (2d Cir. 2003)).
1. Protected Speech
“[S]tudents do not ‘shed their constitutional rights to freedom of speech or expression,’ even ‘at the school house gate.’ ”
Mahanoy, 141 S. Ct. at 2044 (quoting Tinker v. Des Moines Indep. Cmty. School Dist., 393 U.S. 503, 506, 89 S.Ct. 733,
21 L.Ed.2d 731 (1969)). But courts must apply the First Amendment “in light of the special characteristics of the school
environment.” Id. (quoting Hazelwood School Dist. v. Kuhlmeier, 484 U. S. 260, 266, 108 S.Ct. 562, 98 L.Ed.2d 592 (1988)).
Thus, student's constitutional rights in public school “are not automatically coextensive with the rights of adults in other
settings.” Cox, 654 F.3d at 272 (quoting Morse v. Frederick, 551 U.S. 393, 396–97, 127 S.Ct. 2618, 168 L.Ed.2d 290 (2007)).
Given the special characteristics of the school environment, courts in the Second Circuit have established three circumstances
when school administrators may punish or censor student speech without offending the First Amendment. In other words,
student speech is not considered “protected” if one of these three standards is met. Id. (setting forth the three circumstances
when student speech is not “protected under the First Amendment”).
First, “school administrators may, as part of their responsibility to ‘teach[ ] students the boundaries of socially appropriate
behavior,’ punish student speech that is vulgar, lewd, or threatening, at least where that speech occurs publicly at school or
a school-related event.” Cox, 654 F.3d at 272 (quoting Bethel School Dist. No. 403 v. Fraser, 478 U.S. 675, 681, 106 S.Ct.
3159, 92 L.Ed.2d 549 (1986)).
Second, “[w]hen students speak pursuant to the school curriculum such that their speech may be perceived as being endorsed or
promoted by the school, e.g., school newspapers, theatrical productions—school administrators may exercise editorial control
over that speech ‘so long as their actions are reasonably related to legitimate pedagogical concerns.’ ” Cox, 654 F.3d at 272
(quoting Hazelwood, 484 U.S. at 271–73, 108 S.Ct. 562).
Third, for all other speech, “meaning speech that is neither vulgar, lewd, indecent or plainly offensive under Fraser, nor school-
sponsored under Hazelwood,” administrators may only regulate it if it would “materially and substantially disrupt classwork
and discipline in the school,” or invade the rights of others. Guiles v. Marineau, 461 F.3d 320, 325 (2d Cir. 2006); see also
Mahanoy, 141 S. Ct. at 2045 (quoting Tinker, 393 U.S. at 513, 89 S.Ct. 733).
*18 The Court must determine which of these three standards to apply in deciding whether Plaintiff's speech is protected.
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a. Determining the Proper Standard
Neither party argues the Fraser standard is relevant here. Indeed, interpreting the Complaint's allegations in the light most
favorable to Plaintiff, none of Plaintiff's speech at issue was made publicly and was vulgar, lewd, or threatening such that the
Fraser standard would apply.
Likewise, this is not a case where school administrators determined what “manner of speech in the classroom or in school
assembly is inappropriate.,” such that Hazelwood applies. Collins, 979 F.3d at 133. Neither is it an instance where educators
sought to “excercis[e] editorial control over the style and content of student speech.” Hazelwood, 484 U.S. at 272, 108 S.Ct. 562.
Defendants did not object to the content of Plaintiff's proposed graduation speech and seek to censor it to remove objectionable
messages. Indeed, Plaintiff was selected as a speaker by school administration precisely because of the content of his intended
speech, Compl. ¶¶ 10–12, and the Board, in ratifying Monroe's decision to remove Plaintiff, allegedly did so without a copy of
the speech and without reviewing its contents, id. ¶ 45. Rather, Defendants excluded Plaintiff as a response to his past speech,
i.e., his creation of the Bracket and a statement Plaintiff made in his book. Compl. ¶ 39 (“Monroe stated to Wang during the June
15th call as an explanation for her exclusionary decisions and actions: some girls were ‘very upset’ by the bracket in 2018 ...
and a statement in his book ... ‘rubbed her the wrong way’ ”).
Thus, because neither Fraser nor Hazelwood apply, the Court must utilize the Tinker standard to determine if Plaintiff's speech
is protected by the First Amendment. See Guiles, 461 F.3d at 513 (holding that where neither Hazelwood nor Fraser apply, “the
rule of Tinker applies.”); see also Cox, 654 F.3d at 272–73 (setting forth Fraser, Hazelwood, and Tinker as the three standards
that may be applied to determine if speech is protected for purposes of a First Amendment retaliation claim).
b. Application of the Tinker Standard to Determine if Plaintiff's Speech was Protected
As stated above, under Tinker, school administrators are allowed to punish or prevent student speech without offending the
First Amendment if they reasonably believe the speech will “materially and substantially disrupt classwork and discipline in the
school,” or substantially invade the rights of others. Guiles, 461 F.3d 325; Mahanoy Area School Dist. v. B. L, ––– U.S. ––––,
141 S. Ct. 2038, 2045, 210 L.Ed.2d 403 (2021); Tinker requires not only a potential for disruption, but also that “the concern
for disruption, rather than some other, impermissible motive, was the actual reason for” the punishment imposed. Locurto v.
Giuliani, 447 F.3d 159, 179 (2d Cir. 2006).
Defendants argue it was reasonable for them to believe that Plaintiff's past speech would cause material disruption of classwork
and invade the rights of others if he were to be allowed to participate at the graduation ceremony, and thus their exclusion of
him from “an after-school extracurricular activity” did not violate Plaintiff's First Amendment rights. Defs.’ Mem. at 12–14.
Plaintiff's past speech consists of the creation of the Bracket, as well a statement in his book that “if girls made a bracket of
guys, guys would laugh it off.” Compl. ¶ 59.
*19 The contours of what constitutes a sufficiently material disruption under Tinker are not firmly defined. Guiles v. Marineau,
461 F.3d 320, 322 (2d Cir. 2006) (“Nor is Tinker entirely clear as to what constitutes ‘substantial disorder’ or ‘substantial
disruption’ of or ‘material interference’ with school activities.”). Threats of violence against teachers or students are generally
considered sufficiently disruptive. See Cuff ex rel. B.C. v. Val. Cent. School Dist., 677 F.3d 109, 112-13 (2d Cir. 2012) (finding
substantial disruption where student drew a picture of an astronaut blowing up school with teachers inside and showed it to
other students); Cf. Tinker, 393 U.S. 503, 89 S.Ct. 733, 21 L.Ed.2d 731 (1969) (finding no material disruption in part because
“there were no threats or acts of violence on school premises”). Likewise, statements specifically directing students to disrupt
school activities have been found sufficiently disruptive. See Doninger v. Niehoff, 527 F.3d 41, 50 (2d Cir. 2008) (finding
plaintiff's statement directing other students to “call the ‘douchebags’ in the central office to ‘piss [them] off more’ ” sufficiently
disruptive). However, mere offense of a group of students is generally not viewed as sufficiently disruptive. See Mahanoy,
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141 S. Ct. at 2047–48 (finding students’ complaints of offense insufficient to create reasonable fear of substantial disruption);
Guiles, 461 F.3d at 330–331 (finding no sufficient disruption where school officials forced plaintiff to remove a shirt because
a student and parent had complained that it offended them).
Under Tinker it is relevant, but not dispositive, that Plaintiff's speech occurred away from school grounds. The additional leeway
granted to schools under the First Amendment due to their special characteristics is “diminished” when student speech takes
place off-campus. Mahanoy, 141 S. Ct. at 2045–46. Even so, a school's interest in preventing substantial disruption may still
remain “significant in some off-campus circumstances.” Id. at 2045.
Interpreting the allegations of the Complaint in the light most favorable to Plaintiff, the Court cannot say that Plaintiff's creation
of the Bracket represented a reasonable risk of substantial disruption to school discipline or classwork if Plaintiff were not
removed from the graduation ceremony. Rather than anything inherently obscene, the Complaint describes the Bracket as
seeking to identify “the two most liked or admired girls.” Compl. ¶ 59. The fact that the Bracket was communicated off-campus
to a small circle of friends beyond which it was not intended to spread, id. ¶ 63, and did not target any member of the school
community with abusive language, further diminishes the school's interest in removing Plaintiff from an extracurricular activity
as punishment for such speech. See Mahanoy, 141 S. Ct. at 2047 (holding school's interest in punishing speech by removing
student from extracurricular activity was diminished where student spoke off-campus, and “did not identify the school in her
posts or target any member of the school community with vulgar or abusive language. [And] also transmitted her speech ... to
an audience consisting of her private circle.”).
Likewise, Plaintiff's view, expressed in his book, that “if girls made a bracket of guys, guys would laugh it off,” while certainly
objectionable to some, does not present a reasonable risk of substantial disruption to the school's activities. Indeed, it does not
appear from the Complaint that this statement was referenced by, or known to, any students at Plaintiff's school, including those
who complained. See Compl. ¶ 39 (alleging that Monroe stated only that students had complained who were “ ‘very upset’ by
the bracket in 2018”). Also, during Plaintiff's initial discussion with Monroe regarding Plaintiff's removal, Monroe did not state
she was worried the statement in the book could cause disruption, but rather only that it “rubbed her the wrong way.” Id.
According to the allegations in the Complaint, the only disruption that was of concern to Defendants was the potential offense
of “some” students who had complained about Plaintiff's creation of the Bracket. Id. As stated above, the potential offense
of a small number of students is not sufficiently disruptive to justify removal of a student from an extracurricular activity as
punishment, especially where that speech occurs off-campus. See Mahanoy, 141 S. Ct. at 2047–48; Guiles, 461 F.3d at 330–331.
*20 Similarly, while Defendants argue the Bracket “invaded the rights of the female students who were included” in it, Defs.’
Mem. at 13, they do not specify which rights would be invaded by Plaintiff speaking at graduation, other than the right to not
be offended, which is insufficient under Tinker. See Mahanoy, 141 S. Ct. at 2047 (finding no “threatened harm to the rights of
others that might justify the school's action” despite several students complaining to administrators that they were offended).
Thus, the Court finds that Plaintiff's speech in creating the Bracket and writing a book are protected activity under the First
Amendment.
c. Plaintiff's Speech Does Not Constitute Unprotected Harassing Speech
Defendants argue that “the Bracket was a form of harassing speech,” and thus the speech is not protected under Tinker. Defs.’
Mem at 13–14. They contend that the Supreme Court held in Mahanoy that “serious or severe bullying or harassment targeting
particular individuals” is an off-campus behavior that calls for school regulation. Defs.’ Mem. at 14 (citing Mahanoy, 141 S.
Ct. at 2045).
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To begin, this argument is based on a subtly mistaken interpretation of the Supreme Court's Decision in Mahanoy. There, the
court describes a list of exceptions provided by the defendant where that party argued a school should maintain a regulatory
interest in off-campus speech. Mahanoy, 141 S. Ct. at 2045. Included in this list was “serious or severe bullying or harassment
targeting particular individuals.” Id. However, the court declined to adopt such a list, stating it was “uncertain as to the length or
content of any such list of appropriate exceptions or carveouts,” and instead relied on application of the general Tinker standard.
Id.; see also id. at 2057 (“Bullying and severe harassment are serious (and age-old) problems, but these concepts are not easy
to define with the precision required for a regulation of speech.”) (Alito, J., concurring).
In any event, it may very well be true that severe bullying or harassment targeting particular individuals presents a sufficient risk
of disruption under Tinker to warrant school discipline and/or removal from an extracurricular activity. But the Court cannot
characterize the Bracket as “severe” bullying or harassment at this point in litigation. As stated above, the Bracket was meant to
“communicate[ ] the votes by several boys ... following private discussions ... to identify the two most liked or admired girls.”
Compl. ¶ 59. The Court cannot say that this constitutes severe bullying or harassment, especially when it is reasonable to infer
that it was not intended to reach any other students or school grounds. Id. ¶ 32.
2. Adverse Action
Having established that Plaintiff's speech was protected by the First Amendment, the Court turns to whether the actions taken by
Defendants in revoking his position as a speaker at graduation constitutes an action sufficiently adverse to make out a cognizable
claim for retaliation.
While “there is no clear definition of ‘adverse action’ in the school context ... [o]utside the school context, an adverse action
in a First Amendment retaliation case is ‘conduct that would deter a similarly situated individual of ordinary firmness from
exercising his or her constitutional rights.’ ” Cox, 654 F.3d at 273 (quoting Zelnik v. Fashion Inst. of Tech., 464 F.3d 217, 225
(2d Cir. 2006)). This test is highly context-specific and must be applied “in light of the special characteristics of the school
environment.” Id. (quoting Tinker, 393 U.S. at 506, 89 S.Ct. 733).
*21 Defendants argue that the Court should follow the reasoning found in Vetrano v. Miller Place Union Free School Dist.,
369 F. Supp. 3d 462 (E.D.N.Y. 2019). Defs.’ Mem. at 12–13. In Vetrano, the court granted a defendant school district's motion
for summary judgment, finding that barring a student from participating in an extracurricular activity was at most a “de minimus
deprivation” because “the participation in extracurricular activities is a privilege, not a right.” Vetrano, 369 F. Supp. 3d at 473.
The Court declines to adopt a rule that removal from participation in an extracurricular activity is per se insufficiently
adverse because such participation is a “privilege.” There could very well be instances where revocation of participation in an
extracurricular activity is sufficiently adverse to dissuade an individual of ordinary firmness from exercising their constitutional
rights.
Specifically, making all reasonable inferences in favor of Plaintiff, the extracurricular activity at issue here, as alleged in the
Complaint, is of greater importance and more significance than that at issue in Vetrano. The activity in Vetrano was a “variety
show,” comprised of skits and talent acts performed by members of the senior class. Id. at 467. The Court granted the school
district summary judgment because the activity was a mere “voluntary, extracurricular activity.” Id. at 473. Such extracurricular
activities are likely similar to many such activities that take place throughout a student's time in school.
However, the graduation ceremony here is described as having “long term significance, as the selection and award would be
recorded in Wang's High School student records, and in records, reports and articles about his High School Graduation and
class.” Compl. ¶ 15. The speech would have enduring value and be shown at “future reunion events, with it viewed multiple
times by his classmates.” Id. ¶ 16. Additionally, a high school graduation is a one-time event. Further adding to the adverse
nature of Defendants’ actions, Plaintiff alleges that Monroe's allegedly false description of the Bracket as “sexual harassment,”
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dissemination of inaccurate complaints against him, and Defendants’ choice to remove him from his position based on these
false allegations against him, caused him to be subjected to “continued vilification and stigmatization.” Resp. at 11; Compl. ¶ 81.
Construing all allegations in the light most favorable to Plaintiff, the Court finds that Defendants’ actions would be sufficient
to deter a student of ordinary firmness from exercising his first amendment rights. Thus, the Court finds Plaintiff has alleged
facts sufficient to establish the existence of an adverse action.
3. Causal Connection
Finally, Plaintiff must establish that “there was a causal connection between this adverse action and the protected speech.” Cox
v. Warwick Val. Cent. School Dist., 654 F.3d 267, 272 (2d Cir. 2011) (citing Scott v. Coughlin, 344 F.3d 282, 287 (2d Cir.
2003)). This requires a plaintiff to show “some evidence of retaliatory intent to cause the adverse effect.” Brandon v. Kinter, 938
F.3d 21, 40 (2d Cir. 2019). A causal connection for retaliation claims can be shown either “(1) indirectly, by showing that the
protected activity was followed closely by discriminatory treatment, or through other circumstantial evidence; ... or (2) directly,
through evidence of retaliatory animus directed against the plaintiff by the defendant.” Littlejohn v. City of N.Y., 795 F.3d 297,
319 (2d Cir. 2015) (quoting Gordon v. N.Y.C. Bd. of Educ., 232 F.3d 111, 117 (2d Cir. 2000)).
*22 Plaintiff has alleged facts from which it may reasonably be inferred that Defendants rescinded his invitation to speak at
graduation in retaliation for the creation of the Bracket and his statements in his book.
While Defendants’ actions were not close in time to Plaintiff's creation of the Bracket or writing of the book, it may be reasonably
inferred that Defendants acted shortly after they first learned of this past speech. Compl. ¶ 32 (indicating the matter had initially
been handled by Principal Doemel in 2018, and that Defendants never “investigate[d] or ascertain[ed] the details regarding
Principal Doemel's resolution”); see also Dougherty, 282 F.3d at 91 (finding retaliatory intent sufficiently alleged in part because
defendants acted shortly after learning of protected conduct).
Further, Defendants’ actions were described as a “punitive measure” for Plaintiff's past speech by the Commissioner of
Education. Compl. ¶ 57. The complaints to which Defendants responded explicitly sought “additional disciplinary or punitive
sanctions” for Plaintiff's past speech. Id. ¶ 22. And Monroe stated that she was rescinding Plaintiff's invitation in part because
the statement he made in his book “rubbed her the wrong way.” Id. ¶ 39.
These facts, taken together and interpreted in the light most favorable to Plaintiff, are sufficient to create a reasonable inference
that Defendants acted with retaliatory intent and that there was a causal connection between the protected speech and the adverse
action.
Thus, the Court finds Plaintiff's speech was protected conduct, that Defendants’ actions were sufficiently adverse and were
causally connected to the protected speech. Therefore, the Court denies Defendants’ motion to dismiss regarding Plaintiff's
claim for First Amendment Retaliation.
G. First Amendment Viewpoint Discrimination
Viewpoint discrimination is forbidden even in non-public fora such as schools, and occurs when “the government targets not
subject matter but particular views taken by speakers on a subject.” Wandering Dago, Inc. v. Destito, 879 F.3d 20, 31 (2d Cir.
2018) (quoting Rosenberger v. Rector & Visitors of Univ. of Va., 515 U.S. 819, 828, 115 S.Ct. 2510, 132 L.Ed.2d 700 (1995)).
The government targets specific views when it seeks to regulate speech and “the specific motivating ideology or the opinion or
perspective of the speaker” is the rationale for the restriction. Id. (quoting Rosenberger, 515 U.S. at 829, 115 S.Ct. 2510).
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Defendants argue Plaintiff was not removed as a speaker because of concerns about the viewpoints or content of his speech,
but “because of complaints from female students and parents about Plaintiff's past conduct, and concerns about the reactions
from other students attending the graduation.” Defs.’ Mem. at 15.
Plaintiff responds that Defendants’ exclusion of him from speaking at graduation constitutes viewpoint discrimination because
he was excluded from speaking “because of the substance or advisory nature of his Resilience Speech, the perspective or
message they associated with Wang as a creator of the Bracket or of the message Monroe objected to in his book.” Resp. at 14
The Complaint alleges the following regarding the potential motivation for Defendants’ exclusion of Plaintiff as a graduation
speaker:
*23 Monroe stated to Wang during the June 15th call as an explanation for her exclusionary decisions and actions: some
girls were “very upset” by the bracket in 2018 but others “didn't really care”; the recent complaints were likely from those
very upset in 2018; she did not know how many classmates were still upset; permitting Wang to be the keynote speaker would
be perceived as honoring him; his Resilience Speech was objectionable because it would be perceived as providing advice to
students; honoring him or allowing him to give advice might offend or upset some girls or their parents; and a statement in
his book, A Teenage Boy's Perspective on Life, published in 2019, about the differing responses of girls and boys (“if girls
made a bracket of guys, guys would laugh it off”) had “rubbed her the wrong way”.
Compl. ¶ 39.
The viewpoints that Plaintiff alleges were discriminated against fall into two categories: viewpoints expressed prior to his
exclusion, Resp. at 14 (“the perspective or message [Defendants] associated with Wang as a creator of the bracket or of the
message Monroe objected to in his book”), and viewpoints expressed in his proposed graduation speech itself, id. (“Defendants
excluded him from speaking at the graduation ceremony because of the substance or advisory nature of his Resilience Speech”).
1. Viewpoints Espoused Prior to Exclusion
Plaintiff argues that exclusion of an individual due to a past viewpoint they have expressed constitutes viewpoint discrimination.
However, that, in and of itself, does not create a viable foundation for such a claim.
Viewpoint discrimination claims generally relates to actions by government officials taken to censor or prohibit a certain
message from being communicated at a certain future time and place due to the content of that message. See, e.g., Peck v.
Baldwinsville Cent. School Dist., 426 F. 3d. 617, 622 (2d Cir. 2005) (alleging viewpoint discrimination where school prevented
student from displaying poster containing religious imagery at assembly); McKay, 510 Fed. App'x at 6 (2d Cir. 2013) (alleging
viewpoint discrimination where school removed sentence from student's proposed speech that was deemed “too religious”).
It may be possible that a government action excluding a party from speaking in a certain forum may also support a claim of
viewpoint discrimination even if the viewpoint at issue is expressed previously outside the forum from which they have been
excluded and is not contained directly in the speech that has been excluded. For example, the Supreme Court's decision in
Cornelius, upon which Plaintiff relies, could be read to state that when the federal government did not allow the NAACP to
communicate solicitations for donations to employees, it did so because it disagreed with the NAACP's viewpoints generally,
rather than because the government objected to any viewpoint expressed in the excluded solicitation itself. See 473 U.S. at
812, 105 S.Ct. 3439 (remanding because organizations may have been excluded because the government “disagreed with their
viewpoints.”).
Even if the Court accepts this interpretation of Cornelius, to amount to viewpoint discrimination, a government action must
always be undertaken “to suppress the point of view” of the speaker in one form or another. Id. at 806, 105 S.Ct. 3439. This
necessarily requires a reasonable inference that the government action prevented spread of the viewpoint in the future, rather
than merely an objection to viewpoints stated in the past. Prevention of the future spread of a viewpoint was present in Cornelius
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as well, in that inhibiting the NAACP's ability to obtain donations would inhibit their ability to communicate their ideas in
the future. Cornelius, 473 U.S. at 799, 811, 105 S.Ct. 3439 (“without the funds obtained from solicitation ... the organization's
continuing ability to communicate its ideas and goals may be jeopardized.”); see also id. at 812, 105 S.Ct. 3439 (remanding
because “the issue whether the Government excluded respondents because it disagreed with their viewpoints was neither decided
below nor fully briefed before this Court.”).
*24 Here, the Court cannot reasonably infer that Defendants disinvited Plaintiff to suppress the future spread of his past
viewpoints. The speech he intended to give made no reference to either the Bracket or the book. See generally Dkt. No. 1-2
(“Resilience Speech). There are also no allegations that Defendants’ disinvitation could have inhibited Plaintiff's ability to
spread those points of view by other means, as in Cornelius, or allegations leading to a reasonable inference that it was intended
to do so.
2. Viewpoints Contained in Proposed Graduation Speech
Second, Plaintiff argues he was excluded due to the “advisory nature of his speech” and that this constitutes viewpoint
discrimination. Resp. at 14. The Complaint alleges that “Monroe stated ... some girls were ‘very upset’ by the bracket ... the
recent complaints were likely from those very upset in 2018 ... [and] his Resilience Speech was objectionable because ... allowing
him to give advice might offend or upset some girls.” Compl. ¶ 39.
The most natural inference created by these allegations is that Monroe removed Plaintiff as speaker because the fact of him
giving advice at all would be offensive due to his past conduct, not because the advisory viewpoints contained in the speech
themselves, were objectionable and should be suppressed. However, the test for a plaintiff's allegations at this stage of litigation
is not that an inference supporting their claims be the strongest possible given a set of allegations, or that it be the most intuitive,
but merely that it be plausible and more than a mere possibility. Lynch v. City of N.Y., 952 F.3d 67, 74 (2d Cir. 2020) (“[A]
complaint must contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’ ”)
(quoting Iqbal, 556 U.S. at 679, 129 S.Ct. 1937). Further, “[t]he assessment of whether a complaint's factual allegations plausibly
give rise to an entitlement to relief ‘does not impose a probability requirement at the pleading stage; it simply calls for enough
fact to raise a reasonable expectation that discovery will reveal evidence of illegal’ conduct.” Id. at 75.
As stated above, the existence of two distinct instances of speech somewhat obscures Defendants’ motivations for preventing
Plaintiff from speaking at the graduation ceremony. However, the Court finds Plaintiff's allegations are sufficient to create a
plausible inference that Monroe prevented Plaintiff from speaking due to the substance of the advisory viewpoints he intended
to express. 14 The Complaint alleges that Monroe reviewed the advisory content of Plaintiff's proposed speech, described it as
“objectionable,” and then stated Plaintiff should not be allowed to give advice because it would cause offense. Compl. ¶ 39.
While it is a close call—and it is certainly possible Monroe did not base her decision on the viewpoints expressed in the speech
whatsoever—these allegations create a plausible inference that the “specific ... perspective of the speaker” set forth in Plaintiff's
proposed speech was the rationale for Monroe's actions, and that discovery will reveal evidence supporting that claim. See
Wandering Dago, 879 F.3d at 31 (stating that viewpoint discrimination occurs when “the specific motivating ideology or the
opinion or perspective of the speaker” is the rationale for speech restriction.) (quoting Rosenberger, 515 U.S. at 829, 115 S.Ct.
2510); see also Peck, 426 F. 3d. at 631 (denying summary judgment as to viewpoint discrimination claim where it was possible
officials had prevented student speech due to particular viewpoint expressed, rather than other motivations also supported by
the evidence).
3. Defendants’ Alleged Actions do not Constitute Permissible Content-Based Discrimination
*25 Defendants argue that if the Court does find their actions were based on the content of Plaintiff's proposed speech, that
such actions constitute permissible content-based discrimination as opposed to viewpoint discrimination. Defs.’ Mem. at 14–15.
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In contrast with viewpoint discrimination which entails exclusion of a certain perspective on a given subject matter, “content
discrimination entails the exclusion of a ‘general subject matter’ from a forum.” McKay, 510 Fed. App'x at 8. Content-based
discrimination is generally allowed in schools, so long as the permissive standard set forth in Hazelwood is met, 484 U.S. at
273, 108 S.Ct. 562, but viewpoint-based discrimination is traditionally prohibited. See Peck, 426 F. 3d. at 630 (Stating that
content discrimination “is permissible in a non-public forum [such as a school], and viewpoint discrimination ... traditionally
has been prohibited even in non-public fora.”).
As discussed above, it is reasonable to infer from the allegations in the Complaint that Monroe acted to suppress the specific
advisory viewpoints contained in Plaintiff's speech. Defendants did not exclude a “general subject matter.” It is not alleged, for
example, that Defendants excluded all advice from the graduation ceremony, but rather only the advice Plaintiff wished to give.
Thus, Monroe's conduct cannot be described as content-based discrimination.
Because Plaintiff plausibly alleges Monroe prevented him from speaking out of a desire to suppress the advisory viewpoints
contained in his speech, Defendants’ Motion to Dismiss is denied regarding Plaintiff's claim for viewpoint discrimination.
H. Fourteenth Amendment Substantive Due Process
For a substantive due process claim to survive a 12(b)(6) motion to dismiss, it must (1) identify a constitutional right or property
interest protected by the Fourteenth Amendment and (2) allege governmental conduct that “is so egregious, so outrageous, that
it may fairly be said to shock the contemporary conscience,” or that is arbitrary in the constitutional sense. See Valez v. Levy,
401 F.3d 75, 85, 93 (2d. Cir. 2005); see also Horton v. Westling, 284 F. Supp. 3d 213, 222 (N.D.N.Y. 2018) (citing Lowrance
v. Achtyl, 20 F.3d 529, 537 (2d Cir. 1994)). An action is sufficiently arbitrary if it “is so outrageously arbitrary as to constitute
a gross abuse of governmental authority.” Harlen Assocs. v. Inc. Vill. of Mineola, 273 F.3d 494, 505 (2d Cir. 2001).
Plaintiff argues that he has several property interests, including an interest in his reputation, and a contract-based interest in
speaking at graduation, all of which were infringed by Defendants’ actions. Resp. at 17–18.
Even assuming Plaintiff has established constitutionally cognizable property interests, the Complaint does not allege conduct
that is sufficiently egregious or arbitrary to implicate Plaintiff's substantive due process rights.
In support of his claim for substantive due process, Plaintiff points to three actions the Defendants undertook that he argues
are sufficiently outrageous:
i) the District imposed an additional sanction on Wang with respect to a matter that had been fully resolved in April 2018; ii)
the sanctions were imposed without a finding that Wang engaged in “prohibited student conduct” as defined in the District
Code of Conduct V.; and iii) the sanctions were imposed by the District without identifying or basing it on any express
standard, rule, regulation, Speech Competition specification, or stated authority but basing it upon Monroe's (and the BOE's)
subjective views, assumptions, and biases.
*26 Compl. ¶ 90.
While these allegations, if true, could be considered distasteful, substantive due process protections “are available only against
egregious conduct which goes beyond merely offend[ing] some fastidious squeamishness or private sentimentalism and can
fairly be viewed as so brutal and offensive to human dignity as to shock the conscience.” Nicole Dayes v. Watertown City
School District et al., No. 20-CV-964, 2021 WL 4407385, at *4 (N.D.N.Y. 2021) (quoting Smith v. Half Hollow Hills Cent. Sch.
Dist., 298 F.3d 168, 173 (2d Cir. 2002)). The threshold for establishing egregious conduct sufficient to warrant substantive due
process claims in a school environment is high. See, e.g., Dayes, 2021 WL 4407385, at *4 (“[T]he threshold for establishing a
constitutional tort in a school environment is high.”); B.A. v. City of Schenectady Sch. Dist., 209 F. Supp. 3d 515, 523 (N.D.N.Y.
2016) (“[A] review of the applicable case law from our Circuit makes clear that ‘the threshold for establishing a constitutional
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tort in a school environment setting [remains] high.” (quoting J.E. ex rel. Edwards v. Ctr. Moriches Union Free Sch. Dist., 898
F. Supp. 2d 516, 538 (E.D.N.Y. 2012))).
Accordingly, courts commonly find conduct much more egregious than that at issue to be insufficiently outrageous to support
a substantive due process claim. See e.g., Smith, 298 F.3d at 173 (holding that striking a student with full force in the face
“without any pedagogical or disciplinary justification ... [was] undeniably wrong,” but not sufficiently egregious to warrant
substantive due process protection); B.A., 209 F. Supp. 3d at 524 (finding teacher's conduct not sufficiently egregious where
teacher “grabbed him by both arms, shook him by the shoulders, slammed him into a chair, and yelled in his face that he should
“stop crying” between thirteen and twenty times.”). 15
Even so, school officials’ conduct has been deemed sufficiently egregious in some circumstances. See, e.g., Johnson v.
Newburgh Enlarged Sch. Dist., 239 F.3d 246, 249 (2d Cir. 2001) (finding teacher's conduct conscience-shocking where he
dragged student across gym floor, choked him, slammed back of his head against bleachers four times, rammed his forehead
into a metal fuse box, and punched him for no legitimate purpose); Knicrumah v. Albany City School District, 241 F. Supp. 2d
199, 205, 211 (N.D.N.Y.2003) (finding conduct sufficiently conscience-shocking where teacher grabbed student, slammed him
against a brick wall “without reason or provocation,” held him there and threatened to “have him kicked off the track team.”).
*27 Given the guideposts provided in caselaw, and even viewing the allegations in the light most favorable to Plaintiff,
Defendants’ imposition of additional sanctions years after a matter was resolved and without a specific finding as required
by the District's Code of Conduct are not sufficiently “brutal” and “offensive to human dignity” to invoke the protections of
substantive due process.
Nor does the Court find it sufficiently egregious or arbitrary that Defendants imposed sanctions based on subjective views and
biases without identifying specific rules or authority. Substantive due process does not protect against all improper government
actions even when they “might fairly be deemed arbitrary or capricious.” Harlen Assocs. v. Inc. Vill. of Mineola, 273 F.3d 494,
505 (2d Cir. 2001) (quoting Natale v. Town of Ridgefield, 170 F.3d 258, 263 (2d Cir. 1999)). Rather, a governmental action
must be “so outrageously arbitrary as to constitute a gross abuse of governmental authority.” Id. The protections of substantive
due process are aimed at government decisions undertaken with no legitimate justification or state interest. Compare Valez,
401 F.3d at 93 (stating that the purpose of substantive due process is to protect the individual ‘against ... the exercise of power
without any reasonable justification in the service of a legitimate governmental objective.’ ” (quoting Cnty. of Sacramento v.
Lewis, 523 U.S. 833, 845–46, 118 S.Ct. 1708, 140 L.Ed.2d 1043 (1998))); Brady v. Town of Colchester, 863 F.2d 205, 215 (2d
Cir. 1988) (finding potential substantive due process violation where property interest destroyed with “no rational basis”); and
Newburgh, 239 F.3d at 252 (finding teacher's assault on student conscience-shocking in part due to “the absence of a discernible
government interest.”); with Lowrance v. Achtyl, 20 F.3d 529, 537 (2d Cir. 1994) (finding government action not “arbitrary
in the constitutional sense” where it had “reasonable grounds.”). Such protections are not meant for government acts that are
merely “incorrect or ill-advised.” Lowrance, 20 F.3d at 537.
Here, the allegations in the Complaint establish legitimate grounds for Defendants’ actions: the complaints received from parents
and students about Plaintiff speaking and potential disruption of the graduation ceremony. 16 Compl. ¶ 23 (“In reliance upon
and deference to such complaints, Monroe, acting under color of New York law and her claimed statutory and District authority,
revoked the Speech Committee's selection of Wang's speech and Wang.”). Thus, the Court does not find that Defendants’ actions
are so arbitrary as to constitute a “gross abuse of governmental authority.” Harlen, 273 F.3d at 505.
*28 The Court declines to follow the reasoning set forth in Soglin v. Kauffman, 418 F.2d 163, 168 (7th Cir 1969), a fifty-year-
old case from the Seventh Circuit that Plaintiff argues stands for the proposition that a school violates substantive due process
when it punishes students without identifying specific rules that were been violated. Resp. at 17. The Court declines to adopt a
rule that a school per se violates due process by undertaking such an action, and instead follows the more general Second Circuit
standard that conduct must be so arbitrary that it constitutes “gross abuse of governmental authority.” In doing so, the Court is
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cognizant of the “need to preserve the constitutional proportions of constitutional claims, lest the Constitution be demoted to ...
a font of tort law.” B.A., 209 F. Supp. 3d at 522 (N.D.N.Y. 2016); (quoting Smith, 298 F.3d 168, 173 (2d Cir.2000)).
Given the above, the Court dismisses Plaintiff's claim for violation of his substantive due process rights.
I. Fourteenth Amendment Procedural Due Process
To state a procedural due process claim, a plaintiff must show that (1) he possessed a constitutionally protected property or
liberty interest, (2) the state deprived him of that interest, and (3) the deprivation occurred without appropriate due process.
McMenemy v. City of Rochester, 241 F.3d 279, 285–86 (2d Cir. 2001); see also White Plains Towing Corp. v. Patterson, 991
F.2d 1049, 1061–62 (2d Cir. 1993).
1. Possession and Deprivation of Property Interests
Plaintiff argues he possessed two property interests of which he was deprived: his reputation under a “stigma plus” theory, and
a contractual right to speak at graduation. Resp. at 19.
a. Stigma Plus
To establish a stigma plus claim, a plaintiff must allege “(1) the utterance of a statement about [him] that is injurious to [his]
reputation, ‘that is capable of being proved false, and that he or she claims is false,’ ” (2) “[t]he defamatory statement must be
sufficiently public to create or threaten a stigma,” and (3) “some tangible and material state-imposed burden ... in addition to
the stigmatizing statement,” entailing the “termination or alteration of some other legal right or status.” Velez v. Levy, 401 F.3d
75, 87–88 (2d. Cir.2005) (quoting Doe v. Dep't of Pub. Safety ex rel. Lee, 271 F.3d 38, 47 (2d Cir. 2001)).
To meet the first prong of stigma plus, the alleged injurious statement must “call into question a plaintiff's ‘good name,
reputation, honor, or integrity.’ ” Paterson v. City of Utica, 370 F. 3d 322, 330 (2d Cir 2004) (quoting Quinn v. Syracuse Model
Neighborhood Corp., 613 F.2d 438, 446 (2d Cir. 1980)). While Plaintiff argues that Monroe “denigrated” him, he does not point
to specific statements from Monroe that were denigratory. See Resp. at 19. The only statement in the Complaint that reasonably
calls into question Plaintiff's good name, reputation, honor, or integrity is Monroe's description of his past conduct as “sexual
harassment” in her letter to the Commissioner on June 25, 2020. Compl. ¶ 52.
Such a statement is a matter of opinion that cannot be proven true or false and would thus fail the first prong of the stigma
plus test. See Wiese v. Kelley, No. 08-CV-6348, 2009 WL 2902513, at *6 (S.D.N.Y. Sept. 10, 2009) (“The Attorney General's
description of the conduct ... as ‘extremely troubling’ is a statement of opinion, rather than fact, and as such is not actionable
as a stigmatizing remark.”). Additionally, Monroe's statement in a letter to the Commissioner is not sufficiently public to meet
the stigma plus test absent any allegations that the statement spread further or was available to the public. See Petrone v.
Hampton Bays Union Free Sch. Dist., No. 03-CV-4359, 2013 WL 3491057, at *34 (E.D.N.Y. July 10, 2013) (finding statements
made during non-public proceedings insufficiently public to support stigma plus claim) aff'd, 568 F. App'x 5 (2d Cir. 2014).
Accordingly, the Court finds Plaintiff has not established his reputation as a constitutionally cognizable property interest,
deprivation of which gives rise to procedural due process protections.
b. Contractual Rights
*29 “[N]ot every contractual benefit rises to the level of a constitutionally protected property interest. It is neither workable
nor within the intent of section 1983 to convert every breach of contract claim against a state actor into a federal claim.” Radwan
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v. Univ. of Conn. Bd. of Trs., 465 F. Supp. 3d 75 (D. Conn. 2020) (quoting Ezekwo v. N.Y.C. Health & Hosps. Corp., 940
F.2d 775, 782 (2d Cir. 1991)). To warrant due process protection, a contract must protect the contract holder from the state's
revocation of “a status, an estate within the public sphere characterized by a quality of either extreme dependence in the case
of welfare benefits, or permanence in the case of tenure, or sometimes both.” Gizzo v. Ben-Habib, 44 F. Supp. 3d 374, 385–
86 (S.D.N.Y. 2014) (emphasis in original) (quoting S & D Maint. Co. v. Goldin, 844 F.2d 962, 966 (2d Cir. 1988)) (collecting
cases). This is distinct from contracts that merely arise from voluntary relationships. Id. at 386 (citing Rosenfeld v. Port Auth. of
N.Y. & N.J., 108 F. Supp. 2d 156, 166 (E.D.N.Y. 2000). Several courts have suggested “the Second Circuit has found cognizable
property interests in contracts only in the employment context.” Id. (quoting Malapanis v. Regan, 340 F. Supp. 2d 184, 190 (D.
Conn. 2004), aff'd, 147 F. App'x 219 (2d Cir. 2005)) (collecting cases).
The parties’ alleged contract, if indeed a contract existed, is not of the sort that gives rise to a cognizable property interest. It was
a single, voluntary interaction, that did not protect Plaintiff from deprivation of an estate within the public sphere. Likewise,
there was no element of “extreme dependence” or permanence in Defendants’ purported agreement to have Plaintiff speak at a
graduation ceremony. See Gizzo, 44 F. Supp. 3d at 387–388 (finding licensing agreement with city was merely the product of
voluntary contractual relationship, and did not have any elements of extreme dependence or permanence).
Therefore, the Court finds Plaintiff has not established a cognizable property interest sufficient to give rise to due process
protections.
2. Appropriate Due Process
Even assuming arguendo that Plaintiff possessed a constitutionally cognizable contract right, and further assuming that his
reputation, combined with his removal as speaker, was likewise a cognizable property interest, Plaintiff has still failed to
establish he was deprived of those interests without appropriate due process.
Due process requires “that a hearing be held at a meaningful time and in a meaningful manner.” Giglio v. Dunn, 732 F.2d 1133,
1135 (2d Cir. 1998). Usually, this requires that “individuals have ‘notice and opportunity for a hearing appropriate to the nature
of the case’ prior to a deprivation of life, liberty, or property.” Rosa R. v. Connelly, 889 F.2d 435, 438 (2d Cir. 1989) (quoting
Mullane v. Cent. Hanover Bank & Trust Co., 339 U.S. 306, 313, 70 S.Ct. 652, 94 L.Ed. 865 (1950)). Even so, “where the
state is effectively unable to anticipate and prevent a random deprivation of a [protected] interest ... post deprivation remedies
might satisfy due process.” Velez, 401 F.3d at 91 (2d Cir. 2005) (cleaned up). In other words, “where a pre-deprivation hearing
is impractical and a post-deprivation hearing is meaningful, the state satisfies its constitutional obligations by providing the
latter.” Giglio, 732 F.2d at 1135.
Plaintiff argues that Defendants violated due process by making a final decision without providing him notice or “any meaningful
opportunity to be heard” prior to the deprivation of his rights. 17 Resp. at 19; Compl. ¶ 93. However, if the interest of which
Plaintiff was deprived was his reputation, the deprivation of that interest did not occur, at the earliest, until June 25, 2020, when
Monroe made her allegedly stigmatizing comments characterizing Plaintiff's conduct as “sexual harassment.” See Compl. ¶ 52.
Similarly, if the interest deprived is Plaintiff's contract right to speak at graduation, that interest would not have been deprived
until the day of the ceremony, June 26, 2020, when his alleged contractual rights were violated.
*30 The Complaint establishes that Plaintiff was in fact given notice and some process prior to June 25, 2020. Plaintiff was
notified on June 8, 2020, that his invitation to speak was to be revoked. Compl. ¶ 35. That same day, Monroe granted Plaintiff
an opportunity to be heard regarding the revocation. Id. ¶ 36. On June 15, 2020, Monroe spoke with Plaintiff, heard his side of
the story, and explained the basis of her decision. Id. ¶ 39–42. Monroe advised Plaintiff he could communicate with the Board to
appeal her decision before their June 17, 2022 meeting. Id. ¶ 43. On June 16, Plaintiff submitted a written appeal to the Board. Id.
¶ 44. On June 24, 2020, Plaintiff filed an appeal of the Board's decision to the Commission of Education, seeking a stay. Id. ¶ 51.
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It is apparent that Plaintiff received notice and had multiple opportunities to be heard prior to the deprivation of his rights. Even
so, Plaintiff argues that this process was insufficient because Defendants failed to provide him with the facts and bases for their
decisions and actions, such that he could meaningfully defend himself. See Compl. ¶ 93; Resp. at 20. Namely, Plaintiff argues
Monroe did not “state the facts or documents she relied upon, including her misunderstanding of the substance or nature of the
bracket, [or] the substance of the email complaints she had relied upon,” and provided a false description of the Bracket and
the false complaints to the Broad. Resp. at 20. Plaintiff alleges he was not made aware of Monroe's misstatement regarding the
nature of the Bracket or the content of the complaints against him until June 25, 2020, when the District filed their opposition
to his request for a stay. Compl. ¶ 53.
Even if these omissions render the pre-deprivation hearings procedurally deficient, at least where some pre-deprivation process
is given, the Court must consider the full set of procedural safeguards afforded a plaintiff that may cure procedural defects in the
pre-deprivation process. Thus, an adequate post-deprivation remedy offered under state law may cure defects in initial process.
See Moccio v. N.Y. State Office of Court Admin., 95 F.3d 195, 200 (2d Cir. 1996) (determining due process claim was not
cognizable despite allegedly deficient termination proceeding because “a plaintiff must show that the ‘procedural safeguards ...
established by the state are insufficient to protect [his] rights” and post-deprivation Article 78 proceedings were available
(quoting Valmonte v. Bane, 18 F.3d 992, 1002 (2d Cir. 1994))); Cohn v. New Paltz Cent. Sch. Dist., 363 F. Supp. 2d 421,
433–34 (N.D.N.Y. 2005) (Where plaintiff alleged due process violation based on procedural errors in school decision, post-
deprivation options available under New York law “constituted part of the due process protection he received, and it cured any
procedural defect that may have occurred.”); Richardson v. Capt. Van Dusen, 833 F. Supp. 146, 153 (N.D.N.Y. 1993) (Holding
that, even assuming a pre-deprivation hearing “was conducted in [a] manner that deprived plaintiff of his due process rights, the
process afforded the plaintiff in the Article 78 proceeding cured any defect in the original hearing.”); see also Campo v. N.Y.C.
Emps.’ Ret. Sys., 843 F.2d 96, 103 n.7 (2d Cir. 1988) (“[I]n considering whether defendants have failed to afford plaintiffs
due process ... the Court evaluates the entire procedure, including the adequacy and availability of remedies under state law.”).
Additionally, where state actors act in violation of state procedures rather than pursuant to them, as Plaintiff alleges here, Compl.
¶¶ 29, 117, post-deprivation remedies are adequate to satisfy due process. See Capul v. City of N.Y., 2020 WL 2748274, at
*13 (S.D.N.Y. May 27, 2020) (finding post-deprivation remedies sufficient because “defendants had violated state procedures,
rather than acted pursuant to such procedures”) (citing Hellenic Am. Neighborhood Action Comm. v. City of N.Y., 101 F.3d
877 (2d Cir. 1996) and Carnell v. Myers, No. 17-CV-7693, 2019 WL 1171489, at *5–6 (S.D.N.Y. Mar. 13, 2019))).
*31 New York State law provides for a hearing under Article 78, in which a Plaintiff may raise the question, among others,
of whether a state officer's “determination was made in violation of lawful procedure, was affected by an error of law or was
arbitrary and capricious or an abuse of discretion.” N.Y. Civ. Prac. L. & R. 7803. Article 78 hearings are considered to constitute
sufficient process to challenge the actions of state officials. Newman v. SUNY Broome Cmty. College et al., 2021 WL 3518306,
at *4 (N.D.N.Y. May 6, 2021) (“Article 78 proceedings provide an adequate remedy for those who seek to challenge any action
or inaction by an administrative agency or officers of state or local government.” (quoting Hourihan v. Lafferty, 58 F. Supp.
2d 10, 15 (N.D.N.Y. 1999))).
Additionally, many courts have found the post-deprivation process afforded by Article 78 is per se sufficient to preclude a
procedural due process claim in the school discipline context. See Attallah v. N.Y. Coll. of Osteopathic Med., 643 F. App'x 7 at
9–10 (2d Cir. 2016) (holding disciplined student “could not plausibly claim the deprivation of a protected interest without due
process of law because an adequate post-deprivation remedy in the form of an Article 78 proceeding was available”); Moskowitz
v. Great Neck Union Free Sch. Dist., No. 20-CV-1659, 2021 WL 4268138, at *15 (E.D.N.Y. Aug. 4, 2021) (citing Cohn, 363
F. Supp. 2d at 433–34 (N.D.N.Y. 2005)) (finding availability of Article 78 proceeding precluded due process claim because
“it is well-established in the context of [school] disciplinary proceedings, such as those at issue here, that post-discipline due
process provides sufficient due process to satisfy the requirements of the Fourteenth Amendment.”). Plaintiff himself described
the proceedings at issue as disciplinary. See Resp. at 6, 17, 19, 20.
Had Plaintiff instituted an Article 78 hearing, he would have been able to confront and present the evidence that was allegedly
withheld from him until just before the Commissioner's adjudication. Such a hearing would have been meaningful in that it
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would have offered him the opportunity to answer any stigmatizing charges and clear his name of any false statements, thus
curing the alleged injury to his reputation. Paterson, 370 F. 3d at 335 (stating that appropriate remedy for stigma-plus claim “is a
post-deprivation name-clearing hearing ... [that] gives the plaintiff an opportunity to hear and answer first-hand any stigmatizing
charges, clearing his name of any false statements made about him, and curing the injury to his reputation.”); Rys v. Grimm, No.
6:19-CV-1251, 2021 WL 827671, at *10 (N.D.N.Y. Mar. 4, 2021) (“[E]ven assuming arguendo that Plaintiff had sufficiently
alleged the elements of a stigma-plus claim, the Court finds that Plaintiff fails to state a claim upon which relief can be granted
because she could have used an Article 78 proceeding to clear her name and did not do so.”). Further, the New York state court
could have meaningfully addressed any damage done by breach of Plaintiff's contract rights. See S & D Maint. Co. v. Goldin,
844 F.2d 962, 966 (2d Cir. 1988) (“[E]ven if all public contract rights warranted the procedural protections of due process, there
would be a substantial argument that in most circumstances post-deprivation state court remedies would provide all the process
that is due.”); Radwan, 465 F. Supp. 3d at 107 n.4 (finding that even if plaintiff had established cognizable contractual interest,
Article 78 proceedings afforded sufficient post-deprivation remedy). Indeed, Plaintiff has not argued that such a hearing would
be inadequate. 18
*32 Therefore, the Court grants Defendants’ Motion to Dismiss with respect to Plaintiff's procedural due process claim.
J. Title IX
Title IX mandates that “[n]o person in the United States shall, on the basis of sex, be excluded from participation in, be denied
the benefits of, or be subjected to discrimination under any education program or activity receiving Federal financial assistance.”
20 U.S.C. § 1681.
To state a claim under Title IX, a plaintiff must establish that (1) the defendant discriminated against him on the basis of gender
or sex, (2) the discrimination was intentional, and (3) discrimination was a substantial and motivating factor for the defendant's
action. Doe v. Columbia Univ., 101 F. Supp. 3d 356, 367 (S.D.N.Y. 2015) (citing Tolbert v. Queens Coll., 242 F.3d 58, 69 (2d
Cir. 2001)). Accordingly, Title IX bars imposition of discipline or sanctions by an educational institution that receives federal
funding “when gender is a motivating factor in the decision.” Doe v. Columbia Univ., 831 F.3d 46, 53 (2d Cir. 2016) (quoting
Yusuf v. Vassar College, 35 F.3d 709, 714 (2d Cir. 1994)).
In the Second Circuit, when a plaintiff attacks educational disciplinary proceedings on the grounds of gender bias, there are
generally two avenues by which they may meet the aforementioned three prongs to establish a Title IX claim. In the first avenue,
commonly referred to as a claim of “erroneous outcome,” “the claim is that the plaintiff was innocent and wrongly found to have
committed an offense.” Yusuf, 35 F.3d at 715. The second avenue, commonly referred to as a claim of “selective enforcement,”
asserts that, regardless of the student's guilt or innocence, the severity of the penalty and/or the decision to initiate the proceeding
was affected by the student's gender. Doe v. New York University, 438 F. Supp. 3d 172, 181 (S.D.N.Y. 2020). Under either
theory a plaintiff must “allege particular circumstances suggesting that gender bias was a motivating factor ...,” Yusuf, 35 F.3d
at 715, but a plaintiff's allegations need support only a “minimal plausible inference” of bias, Columbia, 831 F.3d at 55.
The Court finds Plaintiff has alleged sufficient facts to support a claim of erroneous outcome regarding the disciplinary
proceedings undertaken by Defendants.
To survive a motion to dismiss an erroneous outcome claim, a plaintiff must allege (1) “particular facts sufficient to cast some
articulable doubt on the accuracy of the outcome of the disciplinary process,” and (2) “particular circumstances suggesting that
gender bias was a motivating factor.” Haas, 427 F. Supp. 3d at 354 (quoting Yusuf, 35 F.3d at 715).
1. Articulable Doubt
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The pleading burden to satisfy the articulable doubt requirement has been described by the Second Circuit as “not heavy.”
Yusuf, 35 F.3d at 715. “[A] complaint may allege particular evidentiary weaknesses behind the finding of an offense such as
a motive to lie on the part of a complainant or witnesses, particularized strengths of the defense, or other reason to doubt the
veracity of the charge.” Id. A plaintiff may also allege procedural flaws that affected the proof. Id.
*33 Plaintiff attacks the veracity of the allegations of which he was found guilty. The Complaint states that (1) Monroe
provided a false description of the Bracket to the Board and this description informed their decision, id. ¶¶ 45–46, (2) Monroe
falsely represented to the Board the substance of her phone conversation with Plaintiff, id. ¶ 52, (3) Monroe stated that she was
personally offended by a passage in Plaintiff's book, id. ¶ 39, leading to a plausible inference that she had a motive to lie in
providing information to the board, (4) Plaintiff was not provided with notice of the false information Monroe gave to the board
until immediately before the Commissioner issued his decision denying Plaintiff's request for a stay, when it was too late to
refute, id. ¶ 53, (5) the Board refused to explain the reasoning for their decision, id. ¶ 48, and finally, (6) the District and Monroe
considered the opinions and allegations of a few girls and their parents who opposed Plaintiff speaking, but did not consider
the input of Plaintiff's “teachers, counselors, male students, and other students” who supported him, id. ¶¶ 67–68.
Further, Plaintiff alleges several procedural flaws. The Complaint states that the District Code of Conduct specified procedural
and substantive requirements for imposing sanctions on students, but that Defendants entirely discarded the Code when imposing
sanctions on Plaintiff. Compl. ¶ 29. Indeed, it is alleged Defendants openly admitted they did not comply with the procedural
requirements of the Code of Conduct. Id. ¶¶ 29, 56.
The Court finds these alleged procedural flaws, potential motive to mislead the board on part of Monroe, and evidentiary
weaknesses are sufficient to meet the “not heavy” requirement that Plaintiff allege facts sufficient to cast some articulable doubt
on the accuracy of the outcome of Defendants’ disciplinary proceedings.
2. Gender Bias as a Motivating Factor
The Court reaches a similar conclusion regarding the second prong of the erroneous outcome test, which requires a plaintiff to
allege particular circumstances suggesting that gender bias was a motivating factor leading to the erroneous outcome. As noted
above, to establish this prong, a plaintiff need only allege facts that support a “minimal plausible inference” of discriminatory
intent. Columbia, 831 F.3d at 55.
In support of his claim of gender bias, Plaintiff alleges that Monroe and the Board were predominantly female, Compl. ¶ 73,
they chose a lower ranked female student to replace Plaintiff as speaker, id. ¶ 70, Monroe had expressed displeasure regarding
the statement in Plaintiff's book regarding the differences between men and women, id. ¶ 39; Resp. at 21, and perhaps most
importantly, Plaintiff alleges Monroe and the Board relied solely on objections and statements from female students and their
parents, while ignoring statements of males, id. ¶¶ 68, 72.
The Court also finds these allegations sufficient to create a minimal inference that Defendants’ actions were motivated by
gender bias. 19 Plaintiff's allegation that Defendants only accepted statements from female students and their families, but not
from males, is sufficient to meet Plaintiff's minimal burden. General bias against an accused has been found to exist where an
educational institution considers statements form individuals with relevant knowledge, but declines to explore such statements
from persons supporting an accused. Menaker, 935 F.3d at 34; Columbia, 831 F.3d at 57. Similarly then, where defendants
decline to explore statements made by members of a plaintiff's protected group, but do take into account statements made
by individuals outside that group, this leads to a minimal inference that defendants’ actions are motivated by bias based on
plaintiff's membership in that group.
*34 Additionally, Plaintiff alleges he was replaced as graduation speaker by a female student who scored lower than he did in
the speech competition. Compl. ¶ 70. In similar contexts, removing a member of a protected group from a meaningful position
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and replacing them with someone outside of that protected group is regularly found sufficient to create a minimal inference
of bias related to that protected group. See e.g., Zimmermann v. Assocs. First Capital Corp., 251 F.3d 376, 381 (2d Cir. 2001)
(finding inference of gender-based discrimination in Title VII context because “the mere fact that a plaintiff was replaced by
someone outside the protected class will suffice for the required inference of discrimination”); Soderberg v. Gunther Int'l, Inc.,
124 F. App'x 30, 31–32 (2d Cir. 2005) (finding inference of discriminatory intent based on age in ADEA suit where plaintiff
was terminated and “defendants filled her position with a forty-two-year-old employee, twenty years her junior”).
Accordingly, Defendants’ Motion to Dismiss is denied as to Plaintiff's claim for violation of Title IX.
K. Title VI
To state a claim for a violation of Title VI, “a plaintiff must plausibly allege that (1) the defendant discriminated against [him]
on the basis of race, color, or national origin; (2) the discrimination was intentional; and (3) the discrimination was a substantial
or motivating factor for the defendant's actions.” Bailey v. New York Law School, 2017 WL 6611582, at *13 (S.D.N.Y. 2017)
(citing Tolbert, 242 F.3d at 69). Similar to Title IX claims, a plaintiff must only “alleg[e] facts giving rise to a plausible minimal
inference of bias” on the basis of race. Vengalattore v. Cornell Univ., 36 F.4th 87, 103–04 (2d Cir. 2022).
Defendants argue that, to the extent Plaintiff alleges Title VI claims based on a theory of disparate treatment, the claims must
be dismissed because Plaintiff has not identified other, similarly situated students who were treated differently, and Plaintiff has
not otherwise alleged facts from which it can be inferred discrimination was a substantial or motivating factor for Defendants’
action. Defs.’ Mem. at 21–22.
1. Similarly Situated Comparators
The Court agrees that Plaintiff has not sufficiently alleged a claim of disparate treatment. “A plaintiff relying on disparate
treatment evidence ‘must show [he] was similarly situated in all material respects to the individuals with whom [he] seeks to
compare [him]self.’ ” Mandell v. County of Suffolk, 316 F.3d 368, 379 (2d Cir. 2003) (quoting Graham v. Long Island R.R.,
230 F.3d 34, 39 (2d Cir. 2000)). Conclusory statements that a plaintiff was treated differently than other groups “are insufficient
to raise a plausible claim for relief under Title VI.” Id. (citing Kajoshaj v. N.Y. City Dep't of Educ., 543 Fed. Appx. 11, 14
(2d Cir. 2013) (collecting cases)).
Plaintiff has not adequately alleged facts identifying similarly situated individuals. Plaintiff points to one female white student
who was allowed to speak at graduation in his place. See Compl. ¶¶ 70, 72. However, the Complaint does not allege that this
student was similarly situated in all material respects. For instance, the Complaint does not indicate whether she, or any other
student, was the subject of complaints regarding her role at graduation or had been accused of conduct similar to Plaintiff's,
such that they were similarly situated when being considered for a position as a graduation speaker or facing punishment for
that conduct.
Plaintiff also argues that Defendants “considered the possible upset of their decisions only on some girls and families with
girls” and not on Plaintiff. Resp. at 22. However, this bare allegation that Plaintiff was treated differently than some members
of a different class, without factual allegations concerning how they were similarly situated, is insufficient. See Minto v.
Molloy Coll., No. 16-CV-276, 2019 WL 4696287, at *10 (E.D.N.Y. Sep. 26, 2019) (“[W]ithout specific factual allegations
concerning these allegedly similarly situated individuals, [plaintiffs’] bare conclusion cannot survive a motion to dismiss.”)
(quoting Kajoshaj v. City of N.Y., No. 11-CV-4780, 2013 WL 249408, at *2 (E.D.N.Y. Jan. 23, 2013)).
*35 Indeed, Plaintiff does not argue he has established similarly situated comparators beyond quoting a conclusory statement
from the Complaint. Resp. at 21 (“[T]he District and Monroe ‘intentionally treated Wang different from others similarly situated
and discriminated against Wang’ ”) (quoting Compl. ¶ 66).
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However, disparate treatment is only one avenue among several by which a plaintiff may raise an inference of discriminatory
motivation. Concha v. Purchase Coll. State Univ. of N.Y., No. 17-CV-8501, 2019 WL 3219386, at *7 (S.D.N.Y. July 17, 2019)
(describing establishing disparate treatment as one “recognized method of raising an inference of discrimination.”); Patane v.
Clark, 508 F.3d 106, 112 (2d Cir. 2007) (stating one way female could have supported her claim that defendants’ actions were
motivated by gender was to “allege that any male employees were given preferential treatment when compared to Plaintiff.”).
2. Discrimination as a Substantial or Motivating Factor
The Court finds that Plaintiff has otherwise alleged facts raising an inference that discrimination was a motivating factor for
Defendants’ actions sufficient to meet the standard set forth in Tolbert.
As stated above, at this stage of pleading, a plaintiff need only “alleg[e] facts giving rise to a plausible minimal inference of bias”
on the basis of race. Vengalattore, 36 F.4th at 103–04. “Courts should take an expansive approach to identifying evidence of
discriminatory intent, as ‘plaintiffs in discrimination suits often must rely on the cumulative weight of circumstantial evidence,’
and a defendant ‘is unlikely to leave a smoking gun.’ ” Minto, 2019 WL 4696287, at *8 (cleaned up) (quoting Norton v.
Sam's Club, 145 F.3d 114, 119 (2d Cir. 1998)) Courts must likewise be mindful that “[t]he plausibility standard is not akin to
a ‘probability requirement,’ ” a plaintiff must only “allege enough to ‘nudge[ ] their claims across the line from conceivable to
plausible.’ ” Vega, 801 F.3d at 87 (quoting Iqbal, 556 U.S. at 680, 129 S.Ct. 1937).
At this stage of litigation, a plaintiff is not required to establish a prima facie case of discrimination under the burden-shifting
framework of McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973). Vega, 801 F.3d at 84.
A court may, however, treat the elements of the prima facie case as an outline, or guideposts, to determine if a plaintiff's claim
of discrimination is plausible. See Vega, 801 F.3d at 84 n.7 (“The elements of a prima facie case may be used as a prism to shed
light upon the plausibility of the claim.”) (quoting Rodriguez-Reyes v. Molina-Rodriguez, 711 F.3d 49, 54 (1st Cir. 2013)); see
also Sosa v. New York City Dep't of Educ., 368 F. Supp. 3d 489, 495 (E.D.N.Y. 2019) (“[O]n a motion to dismiss, the court
treats the elements of a prima facie case as ‘an outline of what is necessary to render a plaintiff's ... discrimination claims for
relief plausible.’ ”) (quoting Barrett v. Forest Labs., Inc., 39 F. Supp. 3d 407, 429 (S.D.N.Y. 2014)).
When a plaintiff is denied a specific, meaningful position, or is removed from such a position, and the plaintiff alleges such denial
or removal was undertaken due to his membership in a protected class, he may establish a prima facie case by demonstrating
that (1) he is a member of a protected class; (2) he was qualified for the position, (3) he was rejected from a position he applied
for or removed from a position he held, and (4) the adverse action “occurred under circumstances giving rise to an inference of
discrimination.” See Aulicino v. New York City Dep't of Homeless Servs., 580 F.3d 73, 80 (2d Cir. 2009) (applying standard
where state officials denied plaintiff's application for a certain position at the Department of Homeless services); Soderberg
v. Gunther Int'l, Inc., 124 F. App'x 30, 31–32 (2d Cir. 2005) (applying standard where plaintiff was removed from position);
Zimmermann v. Assocs. First Capital Corp., 251 F.3d 376, 31 (2d Cir. 2001) (same).
*36 It is undisputed that Plaintiff, as an Asian male, is a member of a protected racial class, that he was qualified for the position
of graduation speaker by virtue of placing first in the speech competition and scoring higher than his eventual replacement,
Compl. ¶¶ 10, 70, and that he was either rejected or removed from that position after applying for it, id. ¶ 55. At issue is
whether Plaintiff has alleged sufficient facts to infer that this removal occurred under circumstances giving rise to an inference
of discrimination. The Court finds that he has.
Courts have consistently found a plausible inference of discrimination where a member of a protected class is rejected or
removed from a certain position, and a person outside that protected class is subsequently placed in that position. See, e.g.,
Howerton v. Bd. of Educ., No. 14-CV-0242, 2015 WL 4994536, at *9 (D. Md. Aug. 18, 2015) (finding plaintiff “has shown
that he was rejected under circumstances giving rise to an inference of unlawful discrimination” under Title VI and Title VII
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because plaintiff alleged he applied for position, but it was filled by individual outside his protected class). 20 The Complaint
clearly alleges that, after Plaintiff was removed from the position of graduation speaker, it was given to a white female who had
ranked lower than him in the speech competition. Compl. ¶ 70. This is thus sufficient to raise an inference of discriminatory
motive and intent.
While this specific issue arises most often in the Title VII employment context, Title VI and Title VII have almost identical
requirements, employ identical analytical frameworks, and employ the same pleading requirements at the motion to dismiss
stage. See Gabriel v. Albany Coll. of Pharmacy & Health Scis., No. 12-CV-14, 2013 WL 4456690, at *5 (D. Vt. Aug. 16, 2013)
(“As Title VI and Title VII cases employ the same analytical framework, the same pleading standard applies here.”) (citing
Williams v. N.Y. City Hous. Auth., 458 F.3d 67, 72 (2d Cir. 2006) and Edwards, 898 F. Supp. 2d 516, 557 (E.D.N.Y. 2012)).
Because Titles VI, VII, and IX have similar structures and goals, Courts addressing claims made under one Title often look to
similar claims made under the other Titles for guidance. See, e.g., Yusuf, 35 F.3d at 714 (“Because the statutes share the same
goals and because Title IX mirrors the substantive provisions of Title VI ... courts have interpreted Title IX by looking to the body
of law developed under Title VI, as well as the caselaw interpreting Title VII.”) (citations omitted); N.Y.C. Envtl. Justice All.
v. Giuliani, 214 F.3d 65, 69 (2d Cir. 2000) (observing that courts in Title VI cases look to similar Title VII cases for guidance).
Further, the factual parallels between Title VII employment cases applying this standard and the current circumstances are
strikingly similar. In both sets of circumstances, (1) the plaintiff holds a position or has applied for a position, (2) defendant
decisionmakers ostensibly must evaluate merit and other criteria to determine whether to allow the plaintiff to remain in that
position or determine to whom to give the position, (3) the plaintiff is removed or rejected, and (4) another is given it in his
place. Most importantly, the key issue in both sets of circumstances is whether the removal or rejection gives rise to an inference
of discriminatory motivation. 21 See supra n.18. Thus, the Court finds, as other courts have, that the replacement of Plaintiff
with a person outside his protected class is sufficient to provide a minimal plausible inference of discrimination. 22
*37 Defendants correctly state the Complaint sets forth other grounds on which it could be inferred Plaintiff was removed from
his position, namely that Defendants were motivated by “complaints the District received from other students and parents about
Plaintiff's past conduct,” Defs.’ Mem. at 22. However, even where a complaint gives other possible reasons for a defendant's
conduct, “[w]hether there existed non-pretextual, non-discriminatory explanations ... is not properly decided on a motion to
dismiss.” Feliciano, 2015 WL 4393163, at *6 (S.D.N.Y. July 15, 2015) (quoting Green v. District Council 1707, 600 F. App'x
32, 33 (2d Cir. 2015)).
L. Title VI and Title IX Claims Against Individuals
“The proper defendant in a Title VI action ‘is the entity that receives federal financial assistance, not an individual.’ ” Milione
v. City Univ. of New York, 950 F. Supp. 2d 704, 708–09 (S.D.N.Y. 2013) (quoting Kelly v. Rice, 375 F. Supp. 2d 203, 208
(S.D.N.Y. 2005)), aff'd, 567 F. App'x 38 (2d Cir. 2014). Similarly, Title IX “has consistently been interpreted as not authorizing
suit against school officials, teachers, and other individuals.” Fitzgerald v. Barnstable Sch. Comm., 555 U.S. 246, 257, 129
S.Ct. 788, 172 L.Ed.2d 582 (2009).
Thus, to the extent Plaintiff asserts Title IX and VI claims against Monroe in her individual capacity, those claims are dismissed.
V. CONCLUSION
Accordingly, it is hereby:
ORDERED, that Defendants’ Motion to Dismiss (Dkt. No. 14) is DENIED in part and GRANTED in part; and it is further
ORDERED, that Plaintiff's requested relief contained in section (n) of his prayer for relief is dismissed due to lack of standing;
and it is further
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ORDERED, that Plaintiff's claims for violation of Fourteenth Amendment substantive due process (Count III); Fourteenth
Amendment procedural due process (Count IV); N.Y. Human Rights Law and the District Policies and Code of Conduct (Count
VII); and claims for breach of contract (Count VIII); common law due process (Count IX); and negligent infliction of emotional
distress (Count X) are dismissed; and it is further
ORDERED, that Defendants’ Motion to Dismiss is denied as to Plaintiff's claims for First Amendment retaliation (Count I);
First Amendment Viewpoint Discrimination (Count II); violation of Title IX (Count V); and violation of Title VI (Count VI);
and it is further
ORDERED, that Plaintiff's claims for violation of Title IX (Count V); and violation of Title VI (Count VI) are dismissed to
the extent they are brought against Defendant Monroe in her individual capacity; and it is further
ORDERED, that the Clerk of the Court shall serve a copy of this Memorandum-Decision and Order on all parties in accordance
with the Local Rules.
IT IS SO ORDERED.
All Citations
Not Reported in Fed. Supp., 2022 WL 3154142
Footnotes
1 This is true for 12(b)(1) motions, at least where the attack on standing relies on the allegations in the complaint, rather
than an introduction of extrinsic facts. Russo v. City of Hartford, 184 F. Supp. 2d 169, 178 (D. Conn. 2002) (explaining
that, where a defendant proffers evidence beyond the pleadings in support of its Rule 12(b)(1) motion, “there is no
presumptive truthfulness to the facts alleged in the complaint, and the court may consider evidentiary matter presented
in an affidavit or otherwise in addition to the complaint.” (citing Kamen v. AT&T Co., 791 F.2d 1006, 1011 (2d Cir.
1986)); see also See Katz v. Donna Karan Co. Store, L.L.C., 872 F.3d 114, 119 (2d Cir. 2017).
2 However, the Court notes that New York State courts recognize standing for breach of contract claims even absent
measurable economic damages. 37 E. 50th St. Corp. v. Rest. Grp. Mgmt. Serv., LLC, 2014 N.Y. Slip Op. 31595(U), ¶
12 (Sup. Ct.) (“[H]arm is caused by the fact of one party's breaking its contractual promise to another, apart from any
measurable form of damages.”); see also Kronos, Inc. v. AVX Corp., 81 N.Y.2d 90, 95, 612 N.E.2d 289, 595 N.Y.S.2d
931 (1993) (“Nominal damages are always available in breach of contract actions.”).
3 Defendants argue the Complaint does not allege an “actual injury” because “courts have held that a school district's
denial of a student's opportunity to participate in an assembly is, at most, a de minimus [sic] deprivation rather than an
injury.” Defs.’ Mem. at 4. However, as the Court discusses in detail in Section IV(F)(2), the circumstances of this case
are distinguishable from those present in the case cited by Defendants, Vetrano v. Miller Place Union Free School Dist.,
369 F. Supp. 3d 462 (E.D.N.Y. 2019), and interpreting the allegations of the Complaint in the light most favorable to
Plaintiff, the Court finds the harm to Plaintiff is more than de minimis.
4 Plaintiff's claims for declaratory relief include a declaration that (a) the District's discipline of Plaintiff for his out-of-
school speech violated Plaintiff's free speech rights under the First and Fourteenth Amendments, (b) that Defendants’
actions constitute viewpoint discrimination in violation of the First and Fourteenth Amendments, (c) that Defendants’
actions punishing Plaintiff violated his procedural due process rights under the Fourteenth Amendment, (d) that
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Defendants’ actions punishing Plaintiff violated his substantive due process rights under the Fourteenth Amendment, (e)
that Defendants’ actions discriminated against Plaintiff in violation of Title IX, (f) that Defendants’ actions discriminated
against him in violation of Title VI of the Civil Rights Act, (g) that Defendants’ actions discriminated against Plaintiff
in violation of the Dignity For All Students Act, the District Code of Conduct, and District Policies, (h) that Defendants’
violation Common Law Due Process requirements, state law, and the District's Code of Conduct, (i) that Defendants’
actions breached Plaintiff's contract rights, (j) that Defendants’ actions constituted negligent infliction of emotional
distress. See Compl. at 30–32.
5 Plaintiff's claims for injunctive relief include (k) reinstating the Speech Committee's selection of Plaintiff as a designated
keynote speaker, annulling Defendants’ revocation, and directing that Plaintiff's recorded speech be included with the
other recordings or records for the Graduation Ceremony, (l) expunging school records regarding imposition of discipline
on Plaintiff after June 2020, and redaction of all false email statement received by District regarding Plaintiff, (m)
directing Defendants to inform the public that they will abide by the Constitutional free speech rights of students and that
the District erred in revoking the Speech Committee's selection, and (n) ordering the District to implement the Dignity
For All Students Act to minimize continuing discrimination to Wang and similarly situated students. See Compl. at 32.
6 Defendants rely on the Second Circuit's summary order in Peck v. Baldwinsville Cent. School Dist., 351 Fed. App'x 477
(2d Cir. 2009) to argue Plaintiff does not have standing because he has not alleged both a likelihood of future harm and
an official policy. Reply at 2. The Peck court does state that, to have standing for injunctive relief, “the plaintiff ‘must
demonstrate both a likelihood of future harm and the existence of an official policy or its equivalent.’ ” 351 Fed. App'x
at 479 (emphasis in original) (citing Shain v. Ellison, 356 F.3d 211, 216 (2d Cir. 2004); Lyons, 461 U.S. at 105–06, 103
S.Ct. 1660). However, an inspection of Peck and its progeny—Shain and Lyons—reveals that this doctrine addresses
situations where a state actor subjects a plaintiff to a discrete, past harm, and the plaintiff now seeks prospective injunctive
relief to prevent that harm from happening again in a hypothetical future encounter. See Lyons, 461 U.S. at 105–06,
103 S.Ct. 1660 (plaintiff alleging police illegally choked him during encounter and seeking injunctive relief to prevent
police from choking him again in hypothetical future encounter); Shain, 356 F.3d at 215 (alleging police performed
unconstitutional strip search and seeking injunctive relief to prevent future hypothetical unconstitutional searches).
This line of cases applies the general standard that a future injury must be “real and immediate” rather than “conjectural
or hypothetical,” Shain, 356 F.3d at 215, and thus requires a plaintiff to demonstrate that (1) the situation in which the
harm arose is likely to recur, and (2) there is some reason to believe that when that situation again arises, the harmful act
will again be committed, such as when a policy or custom directs the commission of such an act in the given situation.
See Lyons, 461 U.S. at 106, 103 S.Ct. 1660 (requiring plaintiff to establish he was likely to have another encounter
with police and “(1) that all police officers in Los Angeles always choke any citizen with whom they happen to have an
encounter, ... or, (2) that the City ordered or authorized police officers to act in such manner.”); Shain, 356 F.3d at 215–
16 (requiring plaintiff to establish “the likelihood of a future encounter with the Nassau County police likely to result in a
subsequent unconstitutional strip search”). This does not apply to cases, such as this, where a continuing harm is alleged.
See Deshawn, 156 F.3d at 344 (granting standing for injunctive relief in part because “unlike Lyons, the plaintiffs in
this case allegedly continue to suffer harm from the challenged conduct”); Marisol A. by Forbes v. Giuliani, No. 95-
CV-10533, 1998 WL 274472, at *8 n.4 (S.D.N.Y. May 26, 1998) (distinguishing from Lyons and granting standing for
injunctive relief where “plaintiffs were still alleging harm” from government's actions); see also O'Shea v. Littleton, 414
U.S. 488, 495–96, 94 S.Ct. 669, 38 L.Ed.2d 674 (1974) (“[P]ast exposure to illegal conduct does not in itself show a
present case or controversy regarding injunctive relief ... if unaccompanied by any continuing, present adverse effects”).
7 Plaintiff argues that a policy “to prevent girls and/or their parents from being upset at a final graduation ceremony
by blocking from speaking 1) a student who had previously created a writing or done something that upset girls or
their parents; or 2) or a student who Monroe deemed ‘unsuitable’ due to his prior writings or the substance, tone, or
implied message of him or his planned speech” may be “discerned” from Monroe's statements. Resp. at 6. However, this
description is contained entirely in Plaintiff's Response. The Complaint contains no allegations regarding the existence
of a formal policy or custom, and likewise does not contain any allegations of other similar instances that could raise an
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inference that Defendants maintain a relevant policy or custom. See Murray v. Admin, for Children's Servs., 476 F. Supp.
2d 436, 442 (S.D.N.Y. 2007), aff'd, 293 F. App'x 831 (2d Cir. 2008) (“The Amended Complaint does not allege other
similar instances ... that could raise an inference that [defendant] maintains a policy or custom of deliberate indifference
to these types of constitutional deprivations.”).
8 To the extent Defendants make the argument that Monroe is entitled to qualified immunity, the Court declines to address
this argument as it is made entirely in a footnote. See Diesel v. Town of Lewisboro, 232 F.3d 92, 110 (2d Cir. 2000) (“We
do not consider an argument mentioned only in a footnote to be adequately raised or preserved for appellate review.”);
Marino v. Coach, Inc., 264 F. Supp. 3d 558, 571 n.11 (S.D.N.Y. 2017) (“The Court will not consider arguments raised
entirely by footnote.”). This is especially appropriate given that Defendants have used footnotes extensively in their
brief to present arguments, see Defs.’ Mem. at 9, 11, 21, 23, possibly to circumvent the page limitations imposed by the
local rules. L. R. 10.1(a)(5) (“[E]xtensive footnotes must not be used to circumvent page limitations.”).
9 To the extent Defendants argue that Monroe is entitled to qualified immunity, the court declines to address this argument
as it is made entirely in a footnote. See Marino v. Coach, Inc., 264 F. Supp. 3d 558, 571 n.11 (S.D.N.Y. 2017) (“The Court
will not consider arguments raised entirely by footnote.”). This is especially appropriate given that Defendants have
used footnotes extensively in their brief to present arguments, see Defs.’ Mem. at 9, 11, 21, 23, possibly to circumvent
the page limitations imposed by the local rules, L. R. 10.1(a)(5) (“[E]xtensive footnotes must not be used to circumvent
page limitations.”).
10 See also Amorosi, 9 N.Y.3d at 373, 849 N.Y.S.2d 485, 880 N.E.2d 6 (applying Section 3813 to claims of discrimination
under New York Human Rights Law); Consol. Const. Group, LLC v. Bethpage Union Free School Dist., 39 A.D.3d
792, 835 N.Y.S.2d 630, 634 (N.Y. App. Div. 2007) (Section 3813 applied to breach of contract); Felmine v. City of New
York, 2012 WL 1999863, at *7 (E.D.N.Y. 2012) (state constitutional torts subject to Section 50-e requirements); Heim
v. Dougherty, No. 19-CV-01160, 2020 WL 5659440 at *7 (W.D.N.Y. 2020) (claim for negligent infliction of emotional
distress subject to Section 50-e).
11 See Parochial, 60 N.Y.2d at 548, 470 N.Y.S.2d 564, 458 N.E.2d 1241 (“[Plaintiff's] failure to present its notice of
claim ‘to the governing body of [the] district or school’, here the defendant Board, as required by the clear language
of subdivision 1 of section 3813 of the Education Law, is a fatal defect mandating dismissal of this action.”); Santiago
v, 434 F. Supp. 2d at 196 n.2 (same).
12 The text of both Section 3813 and 50-i states that compliance with the notice requirements must “appear by and as
an allegation in the complaint.” Section 3813(1); Section 50-i(1). It is not clear that this requirement is coextensive
with federal standards for what documents may be considered on a Rule 12(b)(6) motion to dismiss. In other words,
while a court may generally examine documents attached to a complaint or incorporated by reference at the motion
to dismiss stage, the New York state law requirement that notice of claim compliance appear “as an allegation in the
complaint” could potentially be narrower, and require the allegations appear in the complaint itself and not in an external
document. However, this is not addressed by the parties. Because Plaintiff has not established compliance with the notice
requirements even under the broader 12(b)(6) interpretation, the court will assume arguendo that the two requirements
are coextensive.
13 Because the Court dismisses Plaintiff's state law claims due to his failure to file a notice of claim, the Court will not
rule on Defendants’ arguments that the Complaint did not allege sufficient facts to support these claims. See Defs.’
Mem. at 23–25.
14 In analyzing Plaintiff's claim of retaliation, the Court interpreted the allegations in the light most favorable to Plaintiff
regarding that claim and found it was reasonable to infer Defendants were acting to punish Plaintiff for his past speech
rather than due to the content of Plaintiff's forthcoming graduation speech. See supra Section IV(F)(1)(a). The Court
now interprets the allegations in the light most favorable to Plaintiff regarding his claim for viewpoint discrimination
and finds it is reasonable to infer Defendants acted due to the content of his graduation speech. See Lynch, 952 F.3d at
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75 (“Because plausibility is a standard lower than probability, a given set of actions may well be subject to diverging
interpretations, each of which is plausible.”) (quoting Anderson News, L.L.C. v. American Media, Inc., 680 F.3d 162,
184-85 (2d Cir. 2012)).
15 See also Edwards, 898 F. Supp. 2d at 538 (holding that a security guard who punched and yelled racial epithets at students
while trying to break up a fight did not violate substantive due process); Perrin v. Canandaigua City Sch. Dist., No. 08-
CV-6135, 2008 WL 5054241, at *4 (W.D.N.Y. Nov. 21, 2008) (holding that a teacher forcing a student's arms behind his
back, pushing the student into the locker room, and punching and poking the student in the chest while berating him with
profane and demeaning language was insufficiently egregious); Yap v. Oceanside Union Free Sch. Dist., 303 F. Supp.
2d 284, 297 (E.D.N.Y. 2004) (holding racist statements made to a student by school staff insufficiently egregious).
16 Alternatively, the Court could interpret the facts alleged in the Complaint to infer that Defendants acted without a
legitime desire to avoid disruption and offense, but instead to punish Plaintiff for his past speech because they found such
speech objectionable, or to suppress viewpoints contained in his graduation speech. See supra Sections IV(H), IV(G).
Such an interpretation would certainly increase the arbitrariness and outrageousness of Defendants’ acts. However, were
the Court to do so, the facts that rendered the action outrageous would also give rise to more specific independent
constitutional violations, and Plaintiff's substantive due process claim would be subsumed by Plaintiff's more specific
First Amendment claims for retaliation and viewpoint discrimination. See Velez, 401 F.3d at 94 (“[W]here a specific
constitutional provision prohibits government action, plaintiffs seeking redress for that prohibited conduct in a § 1983
suit cannot make reference to the broad notion of substantive due process.”).
17 To the extent Plaintiff argues he was denied due process because “Defendants failed to investigate the facts and relied
upon erroneous and false complaints and false information to make their decisions,” Resp. at 20, such a failure would
constitute mere negligence, which cannot for the basis for a procedural due process claim. See Grune v. Rodriguez, 176
F.3d 27, 33 (2d Cir. 1999) (to establish deprivation, Plaintiffs must plausibly allege that Defendants “acted with more
than mere negligence.” (citing Daniels v. Williams, 474 U.S. 327, 328 (1986))); see also Folkerts v. City of Waverly,
707 F.3d 975, 981 (8th Cir. 2013) (“A negligent failure to investigate inconsistencies or other leads does not violate
due process”); Wright v. Orleans Cty., No. 14-CV-0622, 2015 U.S. Dist. LEXIS 121653, at *58, 2015 WL 5316410
(W.D.N.Y. Sep. 10, 2015) (“nor is negligent investigation a basis for § 1983 liability” (citing Daniels v. Williams, 474
U.S. 327, 332–33 (1986) (negligent inaction will not suffice to establish a constitutional violation because Due Process
clause is not implicated by a state official's negligent act causing unintended loss)).
18 The availability of a post-deprivation breach of contract action may also remedy any defects in the initial process given to
Plaintiff for deprivation of his alleged contract rights. Id. at 103 n.7 (noting that procedural due process may be satisfied
where plaintiff has available ‘in addition to Article 78 review, a breach of contract claim’); Attallah, 643 F. App'x 7 (2d
Cir. 2016) (holding that if a plaintiff's “claims are the type suitable for judicial review in a breach of contract action,
the availability of that remedy reinforces the conclusion that [they were] not denied procedural due process.”); Storey
v. Morris, No. 16-CV-0206, 2017 WL 933212, at *3 (N.D.N.Y. Feb. 1, 2017) (same).
19 The Court acknowledges that Plaintiff does not allege any general pressure on Defendants to find in favor of females and
against males like has existed in other cases. See, e.g., Menaker, 935 F.3d at 34; Columbia, 831 F.3d at 56. In these cases,
external pressure was noted to be sufficient for an inference of discriminatory intent, but it was not held to be required.
See id.; See also Doe v. Haas, 427 F. Supp. 3d 336, 356–57 (E.D.N.Y. 2019) (finding minimal inference of bias against
male student in disciplinary proceedings even absent allegations of public pressure regarding sexual assault claims).
20 See also, e.g., Feliciano v. City of N.Y., 2015 WL 4393163, at *4 (S.D.N.Y. July 15, 2015) (“The Circuit has held that
when a plaintiff applies for and is denied a position, the fact that the position was filled by someone outside of the
plaintiff's protected class is itself enough to give rise to [an inference of unlawful discrimination]” at the motion to
dismiss stage.) (collecting cases); see also Soderberg, 124 F. App'x at 31–32 (finding inference of discriminatory intent
in ADEA suit where plaintiff was terminated and “defendants filled her position with a forty-two-year-old employee,
twenty years her junior”); Zimmermann v. Assocs. First Capital Corp., 251 F.3d 376 (2d Cir. 2001) (holding that, in title
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VII termination context, “the mere fact that a plaintiff was replaced by someone outside the protected class will suffice
for the required inference of discrimination”); Anderson v. N.Y.C. Health & Hosps. Corp., No. 16-CV-1051, 2020 WL
2866960, at *12 (S.D.N.Y. Mar. 2, 2020) (“[To establish] circumstances giving rise to an inference of discrimination, ...
plaintiff need only show that he was denied the position sought and an individual outside of his protected class was
hired instead.”); see also
21 One potential difference is that, while employment is regularly found sufficiently important that actions affecting it are
deemed adverse and discriminatory, it may be that not all school-related positions held by students are important enough
that removing a student from that position would constitute a “discriminatory act” sufficient to meet the first prong of
Tolbert, 242 F.3d at 69. See Ikedilo v. Statter, No. 19-CV-9967, 2020 WL 5849049, at *8 (S.D.N.Y. Sep. 30, 2020)
(finding in Title VI discrimination case that “a plaintiff must establish ... she suffered an adverse ... action”) (quoting
McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802, 93 S. Ct. 1817, 36 L. Ed. 2d 668, (1973)); see also Vega, 801 F.3d
at 85 (2d Cir. 2015) (requiring adverse action in employment discrimination). But given the unique circumstances of this
case, and interpreting the allegations in the light most favorable to Plaintiff, the Court has already found it reasonable
to infer that Defendants’ actions constitute a sufficiently adverse action. See supra Section IV(F)(2).
22 At least one court in this Circuit has also imported the Title VII denial-of-position analysis when evaluating a factually
similar Title VI claim. See Ikedilo, 2020 WL 5849049, at *8 (importing Title VII framework for establishing a prima
facie denial of position claim for plaintiff's Title VI discrimination claim (citing Weinstock v. Columbia Univ., 224 F.3d
33, 42 (2d Cir. 2000))).
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