Sangare v. The City of Albany et al

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK
_____________________________________
SAMIRA SANGARÉ,
Plaintiff, 	1:24-CV-555
v. 	(DNH/PJE)
CITY OF ALBANY, et al.,
Defendants.
_____________________________________
APPEARANCES:
Samira Sangaré
7 Cold Springs Drive
Clifton Park, New York 12065
Plaintiff pro se
PAUL J. EVANGELISTA
U.S. MAGISTRATE JUDGE
REPORT-RECOMMENDATION AND ORDER
Presently before the undersigned is a review of plaintiff Samira Sangaré’s
Amended Complaint pursuant to 28 U.S.C. §§ 1915, 1915A. See Dkt. No. 5 (“Am.
Compl.”).1 Plaintiff seeks to bring her complaint against the City of Albany; Kathy
Sheehan, Mayor of Albany; Eric Hawkins, Former City of Albany Police Department
Chief of Police; Anthony DiGiuseppe, Sergeant, Albany Police Department; PJ
O’Donovan, Detective, City of Albany Police Department; and City of Albany Police
Officers John Does. See id. at 6.2
1 	The Court’s citations to the Amended Complaint refer to the pagination from Court’s electronic filing
system, located at the header of each page, not to the document’s original pagination.
2 Familiarity with the procedural history of this case is presumed. See generally Docket.
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I. Legal Standards
28 U.S.C. § 1915 directs that when a plaintiff seeks to proceed IFP, “the court
shall dismiss the case at any time if the court determines that . . . the action or appeal
(i) is frivolous or malicious; (ii) fails to state a claim on which relief may be granted; or
(iii) seeks monetary relief against a defendant who is immune from such relief.”
28 U.S.C. § 1915(e)(2)(B). Further, the court must dismiss the action if it “determines at
any time that it lacks subject matter jurisdiction.” FED. R. CIV . P. 12(h)(3). Thus, when a
plaintiff proceeds IFP, “it is a court’s responsibility to determine that a plaintiff may
properly maintain [a] complaint before permitting [the action] to proceed[.]” Praileau v.
Fischer, 930 F. Supp. 2d 383, 394 (N.D.N.Y. 2013).
The Second Circuit directs that courts must grant pro se plaintiffs “special
solicitude,” construe their submissions “liberally,” and read such submissions “to raise
the strongest arguments that they suggest.” Triestman v. Fed. Bureau of Prisons, 470
F.3d 471, 477 (2d Cir. 2006) (internal quotation marks omitted) (citing Ruotolo v. I.R.S.,
28 F.3d 6, 8 (2d Cir. 1994)). The rationale for this is because “a pro se litigant generally
lacks both legal training and experience and, accordingly, is likely to forfeit important
rights through inadvertence if [] not afforded some degree of protection.” Tracy v.
Freshwater, 623 F.3d 90, 101 (2d Cir. 2010) (citing Triestman, 470 F.3d at 475).
However, courts “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.” Triestman, 470 F.3d at 477 (citations omitted). Further,
the “special solicitude” standard does not excuse “frivolous or vexatious filings by pro se
litigants,” nor does it “exempt a party from compliance with relevant rules of procedural
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and substantive law.” Id.; see also Jones v. Westchester Cnty., 182 F. Supp. 3d 134,
147 (S.D.N.Y. 2016) (reminding that the “special solicitude afforded to pro se civil rights
litigants does not give them license to violate the Federal Rules of Civil Procedure[.]”)
(citations omitted).
Under Rule 8, a complaint shall contain “(1) a short and plain statement of the
grounds for the court’s jurisdiction”; (2) “a short and plain statement of the claim
showing that the pleader is entitled to relief”; and (3) “a demand for the relief sought.”
FED. R. CIV . P. 8(a). In deciding whether a complaint states a claim, a “the court must
accept the material facts alleged in the complaint as true and construe all reasonable
inferences in the plaintiff’s favor.” Dallio v. Hebert, 678 F. Supp. 2d 35, 54 (N.D.N.Y.
2009) (quoting Hernandez v. Coughlin, 18 F.3d 133, 136 (2d Cir. 1994)). However, “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)). “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.” Iqbal, 556 U.S. at
678. The purpose of Rule 8 “is to give fair notice of the claim being asserted so as to
permit the adverse party the opportunity to file a responsive answer, prepare an
adequate defense and determine whether the doctrine of res judicata is applicable.”
Burrell v. DOCCS, 655 F. Supp. 3d 112, 121 (N.D.N.Y. 2023) (quoting Powell v. Marine
Midland Bank, 162 F.R.D. 15, 16 (N.D.N.Y. 1995)); see also Spinner Consulting LLC v.
Stone Point Cap. LLC, 623 B.R. 671, 675 (D. Conn. 2020) (noting that while “detailed
allegations are not required . . . , conclusory assertions are insufficient), aff’d, 843 F.
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App’x 411 (2d Cir. 2021). A complaint that fails to comply with these pleading
requirements “presents far too a heavy burden in terms of defendants’ duty to shape a
comprehensive defense[,] and provides no meaningful basis for the Court to assess the
sufficiency of their claims.” Gonzales v. Wing, 167 F.R.D. 352, 355 (N.D.N.Y. 1996).
II. Plaintiff’s Amended Complaint
Plaintiff provides that on April 14, 2021, while marching “to protest the murder of
Daunte Wright and the ongoing violence against Black Americans by the police,” Albany
Police Department officers sprayed plaintiff multiple times with a chemical agent and
“physically pushed” her off of the ramp leading to the entrance of APD’s South Station,
“using both their hands and billy clubs.” Am Compl. at 7. Plaintiff explains that she
participated in “set[ting] up a peaceful encampment outside South Station” as “a
demonstration of solidarity and a call for accountability.” Id.
On April 22, 2021, plaintiff was at the encampment, “standing still, not moving
and recording the police action, when multiple officers, with their badges and name tags
covered, shoved me to the ground using riot shields.” Am. Compl. at 7. 	Plaintiff did not
resist but officers still “chose to violently shove [her] to the ground instead of employing
less forceful means.” Id. As a result of this encounter, her “phone was knocked from
my hand by an officer, and [she] was dragged approximately ten feet by one leg by two
officers including Sergeant DiGuiseppe.” Id. Plaintiff was “forcibly flip[ped] onto [her]
stomach and “at least two officers drove their knees into [her] back pinning [her] to the
ground as they carried out [her] arrest.” Id. Despite not moving, the officers “repeatedly
screamed for [her] to ‘stop resisting.” Id. While on the ground, “officers lifted [her] from
behind in a painful and unsafe manner – one officer grabbed [her] lower arm while
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another grabbed [her] upper arm, twisting [her] body unnaturally as they pulled [her] up.”
Id. Plaintiff contends that the above-described conduct was excessive force and was
unreasonable and unnecessary. Id. She “do[es] not know which of these officers was
detective PJ O’Donovan, but he signed by appearance ticket, and I believe he may
have been involved in my arrest.” Id. Plaintiff provides she does not know the names of
the officers involved because they covered their nametags and badge numbers. See id.
at 8.
Plaintiff was arrested and charged with disorderly conduct. See Am. Compl. at 8.
She contends that, at the time of her arrest, she was “peacefully protesting and
exercising my constitutional right to free speech[,]” and that her arrest was “motivated
by an intent to suppress protected speech, in violation of the First Amendment.” Id.
Plaintiff contends that Sergeant DiGiuseppe made comments “during the investigation
into the arrests” which “demonstrate a retaliatory motive based on my participation in
protests against police violence, despite the fact that I was not a member of Black Lives
Matter at the time of my arrest.” Id.
Plaintiff argues that she was subjected to discriminatory treatment in violation of
the Equal Protection Clause of the Fourteenth Amendment because “[t]he excessive
force used against me and the comments made by Sergeant Anthony DiGiuseppe
reflect not only a general bias but a specific racial bias.” Am. Compl. at 9. 	Plaintiff
contends that “[b]lack individuals, including myself, were disproportionately treated as
inherently violent or dangerous,” as supported by DiGuiseppe’s alleged statements
regarding Black Lives Matters protesters. Id. “The systemic failure to address racial
discrimination within the Albany Police Department is part of a broader pattern of
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unequal treatment.” Id. Plaintiff contends that the defendants' conduct of covering their
names and badge numbers “enabled this racial discrimination to go unchecked” and
deprived her ability to “seek accountability[.]” Id. at 10. She contends she “was
subjected to disparate treatment compared to non-Black individuals and individuals who
were not engaged in protests against police violence.” Id. She contends that the
“retaliatory nature of [her] arrest—informed by Sergeant DiGiuseppe’s anti-BLM bias—
suggests racial discrimination as a motivating factor.” Id.
Plaintiff contends that the City of Albany, Mayor Kathy Sheehan, and former City
of Albany Police Chief Eric Hawkins are liable for the police officers’ conduct under
Monell because they “failed to adequately train officers in handling peaceful civil
disobedience.” Am. Compl. at 10-11. She refers to Sheehan’s “inflammatory
comparison of peaceful protestors to the January 6 th insurrectionists” and “Chief
Hawkins’ vague and unsupported claims of a regional safety threat, further incited
hostility toward protesters.” Id. at 11. 	Plaintiff argues that Sheehan and Hawkins’
“inaction and poor leadership created conditions that escalated tensions and led to the
violations described above.” Id. She contends that “failure to implement a proper
system for tracking and securing property during my arrest demonstrates systemic
neglect.” Id. Plaintiff also contends that she was told she could return the next day to
retrieve her cell phone, but that when she did, she was told it was not in police custody,
which is “a clear deprivation of my property without due process of law.” Id.
Plaintiff contends, “[d]espite the Albany Community Police Review Board’s
investigation into these events,” Hawkins and Sheehan “failed to hold officers
accountable or ensure cooperation with independent investigators” which is a “willful
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disregard of oversight and accountability” that “violates the Equal Protection Clause of
the Fourteenth Amendment, as it denied [her] and others arrested the ability to seek
meaningful remedies under the law.” Am. Compl. at 11.
Plaintiff seeks “compensatory and punitive damages, along with injunctive relief”
for her First and Fourth Amendment claims, “compensatory damages and policy
reforms to prevent racial discrimination in Albany Police Department practices” for her
Fourteenth Amendment Equal Protection claim, and “compensatory damages, injunctive
relief, and policy reforms” for her Monell claims.” Am. Compl. at 13-16. More
specifically, she demands $1,000,000 in compensatory damages, punitive damages in
an amount to be determined at trial, a declaration that defendants violated her First,
Fourth, and Fourteenth Amendment rights. See id. at 17. She seeks “an injunction
requiring the City of Albany and the Albany Police Department to: [] Implement and
enforce policies to prevent excessive force during protests, [] Prohibit the concealment
of badge numbers and name tags by officers, [] Establish mandatory training on
constitutional rights, free speech protections, and anti-bias practices.” Id. at 18.
III. Discussion
A. Fourth Amendment Excessive Force
For the reasons set forth in the January 2, 2025, Report-Recommendation &
Order, dkt. no. 4, which the District Judge adopted, dkt. no. 6, plaintiff’s Fourth
Amendment claims as realleged in the Amended Complaint should be permitted to
proceed to the extent these claims are alleged against the individual officers in their
individual capacities.3
3 To the extent plaintiff refers to defendant police officers collective conduct or contends that she is not
sure whether the named officer was the one involved or not, the Court acknowledges that plaintiff has
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B. First Amendment
Liberally read and with due solicitude, plaintiff’s amended complaint raises two
claims under the First Amendment: (1) retaliatory arrest, and (2) “unlawful suppression
of free speech and assembly.” Am. Compl. at 8.
1. Retaliatory Arrest
Plaintiff’s claim for retaliatory arrest must be dismissed as pled. Plaintiff provides
that she was arrested for disorderly conduct; however, she has not indicated the result
of the arrest. “‘A person is guilty of disorderly conduct under New York law when [s]he
(among other things) makes unreasonable noise; uses abusive or obscene language in
a public place; or congregates with other persons in a public place and refuses to
comply with a lawful order of the police to disperse.” Chavez v. Finney, No. 19-CV-4109
(RA), 2022 WL 874716, at *6 (S.D.N.Y. Mar. 23, 2022) (quoting N.Y. Penal L. § 240.20)
(additional internal quotation marks omitted). “[T]he plaintiff pressing a retaliatory arrest
claim must plead and prove the absence of probable cause for the arrest.” Nieves v.
Bartlett, 587 U.S. 391, 402 (2019). If plaintiff pled guilty to a charge of disorderly
conduct or was found guilty, her claim for retaliation in violation of the First Amendment
could not proceed. See, e.g., Marom v. City of New York, No. 15-CV-2017 (PKC), 2016
limits that may be resolved by discovery once this claim proceeds. See 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) (noting personal
involvement is a prerequisite to an award of damages under section 1983)); see also Bass v. Jackson,
790 F.2d 260, 263 (2d Cir. 1986) (holding that in order to prevail on a section 1983 cause of action
against an individual, a plaintiff must show “a tangible connection between the acts of a defendant and
the injuries suffered.”). Plaintiff is advised that she is required to establish each defendant’s specific
personal involvement in the alleged misconduct. She is further advised, as she was in the January 2025
Report-Recommendation & Order, that the Court cannot serve John Doe defendants and that she will
have to take reasonable efforts to identify the Doe defendants and timely amend her complaint to identify
the Doe defendants and explain each defendants’ specific conduct and not refer to defendants’ conduct
collectively. See Moore v. Westchester Cnty., No. 18-CV-7782, 2019 WL 3889859, at *5 (S.D.N.Y. Aug.
19, 2019) (“[N]onspecific allegations that rely on group pleading and fail to differentiate as to which
defendant was involved in the alleged unlawful conduct are insufficient to state a claim.”).
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WL 916424, at *10 (S.D.N.Y. Mar. 7, 2016), on reconsideration in part, No. 15-CV-2017
(PKC), 2016 WL 5900217 (S.D.N.Y. July 29, 2016) (“Because ‘a conviction of the
plaintiff following the arrest is viewed as establishing the existence of probable cause,’
Cameron [v. Fogarty], 806 F.2d [380] at 387 [(2d Cir. 1986)], Fitzgerald's First
Amendment retaliation claim will be dismissed at this stage.”); Aho v. Chitteck, No.3:09-
cv-728(CFD), 2011 WL 2709836, at *4 (D.Conn. July 12, 2011) (“[W]hen probable
cause to arrest exists, police may arrest an individual even if the arrest could limit the
exercise of that individual's First Amendment rights.”). As the undersigned does not
have sufficient information on this claim, it fails under Rule 8. Out of special solicitude
to plaintiff’s pro se status, however, it is recommended that plaintiff be given a final
opportunity to amend to advise the Court of the status of the disorderly conduct charge
– whether she pled or was adjudicated guilty, the charge was dismissed, or otherwise.
2. Free Speech
Liberally read, plaintiff contends that defendant officers violated her First
Amendment right of free speech by preventing her from recording the police conduct.
See Am. Compl. at 14.
“The Free Speech Clause of the First Amendment constrains governmental
actors and protects private actors.” Manhattan Cmty. Access Corp. v.
Halleck, 587 U.S. 802, 804, 139 S.Ct. 1921, 204 L.Ed.2d 405 (2019). While
the 	First 	Amendment 	“guarantees 	freedom 	of 	speech,” 	it 	“‘does 	not
guarantee the right to communicate . . . at all times and places or in any
manner that may be desired.’” Kass v. City of New York, 864 F.3d 200, 207
(2d Cir. 2017) (quoting Heffron v. Int'l Soc'y for Krishna Consciousness, Inc.,
452 U.S. 640, 647, 101 S.Ct. 2559, 69 L.Ed.2d 298 (1981)). “A private
citizen asserting a First Amendment claim against a public official must
establish that: ‘(1) he has a right protected by the First Amendment; (2) the
defendant’s actions were motivated or substantially caused by his exercise
of that right; and (3) the defendant’s actions caused him some injury.’”
Hoefer v. Bd. of Educ. of the Enlarged City Sch. Dist. of Middletown, No. 10
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Civ. 3244 (ER), 2017 WL 2462660, at *4 (S.D.N.Y. June 6, 2017) (quoting
Dorsett v. Cnty. of Nassau, 732 F.3d 157, 160 (2d Cir. 2013)).
Chinese Am. Citizens All. Greater New York v. New York City Dep’t of Educ., 802 F.
Supp. 3d 483, 513 (S.D.N.Y. 2025).
“To establish a First Amendment free speech violation, a plaintiff must show, in
part, ‘defendants’ actions effectively chilled the exercise of his First Amendment right.’”
Siracusa v. New Hyde Park-Garden City Union Free Sch. Dist., No. 24-CV-01002
(NCM) (LGD), 2024 WL 3875793, at *10 (E.D.N.Y. Aug. 19, 2024) (quoting Curley v.
Vill. of Suffern, 268 F.3d 65, 73 (2d Cir. 2001)). “Where a party can show no change in
his behavior, he has quite plainly shown no chilling of his First Amendment right to free
speech.” Curley v. Village of Suffern, 268 F.3d 65, 73 (2d Cir. 2001). “However, ‘[t]he
type of allegations necessary to satisfy the injury element of a First Amendment
retaliation claim vary depending on the factual context.’” Boehner v. City of Rochester,
609 F. Supp. 3d 220, 230 (W.D.N.Y. 2022) (quoting Morales v. Valley Stream Union
Free Sch. Dist. 24, 527 F. Supp. 3d 470, 474 (E.D.N.Y. 2021)). “As a result, ‘[c]hilled
speech is not the sine qua non of a First Amendment claim. A plaintiff has standing if he
can show either that his speech has been adversely affected by the government
retaliation or that he has suffered some other concrete harm.’” Id. (quoting Dorsett v.
Cnty. of Nassau, 732 F.3d 157, 160, (2d Cir. 2013)); Norton v. Town of Brookhaven, 47
F.Supp.3d at 156 (“[A] criminal prosecution is a sufficient form of concrete harm for
purposes of a First Amendment retaliation claim.”). “If both proper and improper
motivations were behind defendants' conduct, the action may be upheld if it would have
been taken based on proper reasons alone.” Lozada v. Weilminster, 92 F. Supp. 3d 76,
99 (E.D.N.Y. 2015) (citing Santulli v. Russello, 519 F.Appx. 706, 709 (2d Cir. 2013)).
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Plaintiff refers to recording police action outside of the police station, while
present at a “peaceful encampment” intended to serve as a “demonstration of solidarity”
and “call for accountability” and to “protest the continued violence by APD against Black
citizens and the broader systemic racial injustice perpetuated by law enforcement.” Am.
Compl. at 7.
“Although the Second Circuit has not yet weighed in on whether recording the
police is protected First Amendment activity,”4 the Southern District of New York
concluded that “recording police performing their official duties in public is protected
under the First Amendment.” Reyes v. City of New York, No. 23-CV-6369 (JGLC), 2023
WL 7212192, at *5 (S.D.N.Y. Nov. 2, 2023) (citing cases and recognizing that “other
circuits have uniformly recognized a First Amendment right to record the police
performing their duties in public.”).5 “Even the courts that have recognized this right
have made clear that the right to videotape is ‘not without limitations’ and ‘may be
subject to reasonable time, place, and manner restrictions.’” Leibovitz v. City of New
York, No. 14-CV-7106(KAM)(LB), 2018 WL 1157872, at *8 (E.D.N.Y. Mar. 2, 2018)
(quoting Glik v. Cunniffe, 655 F.2d 78, 84 (1 st Cir. 2011)). However, the Court need not
decide this question yet.
As with the retaliatory arrest claim above, the Amended Complaint does not
provide the Court with sufficient information to assess her free speech claim. Plaintiff
appears to claim that she was arrested and force was used against her as a means of
4 Plaintiff cites a First Circuit case to support her argument that recording police conduct is protected
speech. See Am. Compl. at 14. The undersigned observes that cases from the First Circuit are not
precedential and not binding on this Court.
5 	See Camreta v. Greene, 563 U.S. 692, 709 n.7, (2011) (holding that a “decision of a federal district
court judge is not binding precedent”).
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preventing her from filming police activity or participating in the encampment. See Am.
Compl. at 14. However, if plaintiff pleaded guilty or was adjudicated to have committed
disorderly conduct,6 her claim that defendants interfered with her free speech rights
would be defeated because plaintiff would be unable to demonstrate that officers
“knocked the phone out of her hand” because of her speech – a potentially “improper
reason” – rather than due to her engaging in disorderly conduct – a potentially “proper
reason.” Leibovitz, 2018 WL 1157872, at *7 (quoting Rattner v. Netburn, 930 F.2d 204,
208 (2d Cir. 1991) (“To recover on a First Amendment claim under [section] 1983, a
plaintiff must demonstrate that his conduct is deserving of First Amendment protection
and that the defendants' conduct of harassment was motivated by or substantially
caused by his exercise of free speech.”)); see also id. at *8 (“‘[T]he right [to record
police officers in public] does not apply when the recording would impede police officers
in the performance of their duties.’”) (quoting Higginbotham v. City of New York, 105 F.
Supp. 3d 369,379-80 (S.D.N.Y. 2015)); Graham, 89 F.3d at 79.
3. Right of Peaceable Assembly
Plaintiff contends that defendants interfered with her right of assembly insofar as
she was prevented from being able to continue to participate in the encampment and/or
protest.
6 New York Penal Law § 240.20 provides, in pertinent part:
A person is guilty of disorderly conduct when, with intent to cause public inconvenience,
annoyance or alarm, or recklessly creating a risk thereof: . . . (2) He makes unreasonable
noise; or ... (6) He congregates with other persons in a public place and refuses to comply
with a lawful order of the police to disperse . . . .
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The First Amendment “guarantees ‘the right of the people to peaceably
assemble.’” Foote v. Bd. of Educ. of Whitehall Cent. Sch. Dist., No. 1:22-CV-0815
(GTS/CFH), 2024 WL 3376651, at *17 (N.D.N.Y. July 11, 2024) (quoting Johnson v.
Perry, 859 F.3d 156, 171 (2d Cir. 2017) (quoting U.S. CONST. A MEND. I.)); see Hansen v.
Town of Smithtown, 342 F. Supp. 3d 275, 288 (E.D.N.Y. 2018) (quoting De Jonge v.
Oregon, 299 U.S. 353, 364 (1937) (“‘The right of peaceable assembly is a right cognate
to those of free speech and free press and is equally fundamental.’”). “[C]ourts have
long held that the constitutional right to assembly—like the right to free speech—is not
absolute.” Amato v. Elicker, 460 F. Supp. 3d 202, 219 (D. Conn. 2020) (citing Parmley,
465 F.3d at 56). “Generally, government officials may stop or disperse public
demonstrations or protests where clear and present danger of riot, disorder,
interference with traffic upon the public streets, or other immediate threat to public
safety, peace, or order, appears.” Foote, 2024 WL 3376651, at *17 (quoting Johnson,
859 F.3d at 171) (quoting Papineau v. Parmley, 465 F.3d 46, 56-57 (2d Cir. 2006)
(internal quotation marks omitted)). “The First and Fourteenth Amendments do not
permit [the government] to make criminal the exercise of the right of assembly simply
because its exercise may be ‘annoying’ to some people.” Frierson v. Reinisch, No. 1:17-
CV-44 (MAD/CFH), 2021 WL 4405911, at *3 (N.D.N.Y. Sept. 27, 2021), aff'd sub nom.
Frierson v. Troy City Sch. Dist., No. 21-2555-CV, 2023 WL 4441980 (2d Cir. July 11,
2023) (quoting Coates v. City of Cincinnati, 402 U.S. 611, 615 (1971)). “On the other
hand, [n]othing in the Constitution requires the Government freely to grant access to all
who wish to exercise their right to free speech on every type of Government property
without regard to the nature of the property or to the disruption that might be caused by
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the speaker's activities.” Id. (quoting Cornelius v. NAACP Legal Defense & Educ. Fund,
Inc., 473 U.S. 788, 799-800 (1985) (internal quotation marks omitted))); see also
Mediavilla v. City of New York, 259 F. Supp. 3d 82, 101 (S.D.N.Y. 2016) (holding that
there is no First Amendment violation when the government “regulates by reasonable,
appropriate and non-discriminatory measures the time, place and manner of use of the
streets for public assemblies . . . .”) (quoting People v. Pearl, 321 N.Y.S.2d 986, 988
(N.Y. App. Div. 1971) (per curiam)). 	“‘[T]he level of judicial scrutiny that must be
applied to state actions inhibiting speech varies with the nature of the forum in which the
speech occurs, and the same analytical framework applies whether the First
Amendment right being exercised is speech . . . or other expressive activity such as
assembly.’” Butler v. City of New York, 559 F. Supp. 3d 253, 267 (S.D.N.Y. 2021) (citing
Johnson v. Perry, 859 F.3d 156, 171 (2d Cir. 2017)); Perry Educ. Ass'n v. Perry Local
Educators' Ass’n, 460 U.S. 37, 44 (1983) (“The existence of a right of access to public
property and the standard by which limitations upon such a right must be evaluated
differ depending on the character of the property at issue.”).
“Where there is no clear and present danger, ‘speech restrictions imposed
on persons on government-owned property are analyzed under a ‘forum-
based’ approach that divides government property into three principal
categories—the traditional public forum, the designated public forum, and
the nonpublic forum,’ along with ‘a subset of the designated public forum,’
referred to as the ‘limited public forum[.]’” Id. (quoting Byrne v. Rutledge,
623 F.3d 46, 53 (2d Cir. 2010)) (cleaned up).
Doe v. Salina, No. 23-CV-3529 (JMW), 2024 WL 5077629, at *17 (E.D.N.Y. Dec. 11,
2024); see also Minnesota Voters Alliance v. Mansky, 585 U.S. 1, 11 (2018).
In both traditional public forums, e.g., parks, streets, sidewalks, and the
like, and designated public forums, i.e., “spaces that have not traditionally
been regarded as a public forum but which the government has
intentionally opened up for that purpose[,]” . . . the government may
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impose reasonable time, place, and manner restrictions on private
speech, but restrictions based on content must satisfy strict scrutiny, and
those based on viewpoint are prohibited.”
Madden v. Town of Hempstead, 16-CV-6835 (SJF)(AKT), 2019 WL 1439935, at *13
(E.D.N.Y. Mar. 29, 2019) (quoting Mansky, 585 U.S. at 11)). “‘Accordingly, the initial
task of a court faced with a dispute regarding First Amendment activity on government
property is to define the nature of the property at issue.’” Id. (quoting Zalaski v. City of
Bridgeport Police Dept., 613 F.3d 336 (2d Cir. 2010)).
Plaintiff appears to contend that defendant police officers interfered with her
ability to continue participating in the encampment or protests – by arresting her –
because the encampment was protesting police misconduct. Plaintiff asserts that the
encampment was peaceful and suggests that she was not behaving in a threatening
manner. See Am. Compl. at 7, 13.
Here, plaintiff’s claim for the right of peaceable assembly is intertwined with her
retaliatory arrest. Indeed, she contends that she was not able to continue protesting
because defendants arrested her due to her speech. This claim, as pled, appears
duplicative of her retaliatory arrest claim. However, even if it is not, the undersigned
finds it necessary to know whether plaintiff pled guilty to disorderly conduct, whether
she was adjudicated guilty of disorderly conduct or if the charge was dismissed.
Indeed, if it is the case that plaintiff pled guilty or was adjudicated guilty of this conduct,
she would not be able to plausibly claim that defendants stopped her from protesting or
participating in the encampment because of her protected speech rather than due to her
conduct. See Am. Compl. at 14.
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Accordingly, insofar as plaintiff’s amended complaint raises a First Amendment
peaceable assembly claim, it is recommended that such claim be dismissed without
prejudice and with opportunity to amend.
C. Fourteenth Amendment Equal Protection
Plaintiff alleges that she, as a Black individual, “was treated differently from
similarly situated non-black individuals and non-protesters[.]” Am. Compl. at 15.
However, plaintiff’s apparent selective enforcement claim is insufficient and conclusory.
To prevail on a selective enforcement claim, “a plaintiff must prove that ‘(1) the person,
compared with others similarly situated, was selectively treated, and (2) the selective
treatment was motivated by an intention to discriminate on the basis of impermissible
considerations, such as race or religion, to punish or inhibit the exercise of constitutional
rights, or by a malicious or bad faith intent to injure the person.’” Hu v. City of New York,
927 F.3d 81, 91 (2d Cir. 2019) (quoting Zahra v. Town of Southold, 48 F.3d 674, 683
(2d Cir. 1995)). To be “similarly situated” under the first step of the analysis, “the
plaintiff's and comparator's circumstances must bear a reasonably close resemblance.”
Brown v. Daikin Am. Inc., 756 F.3d 219, 230 (2d Cir. 2014) (internal quotation marks
omitted). However, they need not be “identical.” Id. 	A plaintiff must show that “she
was ‘similarly situated in all material respects’ to the individuals with whom she seeks to
compare herself.” Graham v. Long Island Rail Road, 230 F.3d 34, 39 (2d Cir. 2000)
(quoting Shumway v. United Parcel Serv., Inc., 118 F.3d 60, 63 (2d Cir.1997)).
Plaintiff’s amended complaint lacks any explanation as to how she was treated
differently from similarly-situated individuals. Plaintiff does not demonstrate that she was
similarly-situated to (1) “non-black individuals,” or (2) “non-protesters.” 	For example,
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she does not allege that non-Black protestors engaging in the same conduct as plaintiff
were treated differently than her. She also does not allege that she is similarly situated
to non-protestors as non-protesters, by virtue of the fact that they were not protesting,
cannot be said to be similarly situated to plaintiff. She refers to DiGiuseppe’s
comments7 where he appears to make general statements that plaintiff contends were
aimed at Black Lives Matters protestors, Am Compl. at 15, but such comments do not
demonstrate that plaintiff was treated differently from similarly-situated individuals due
to her membership in a protected class.
Plaintiff states that Sheehan and Hawkins “failed to hold officers accountable or
ensure cooperation with independent investigators,” specifically the Albany Community
Police Review Board, which she contends is a “willful disregard of oversight and
accountability” that “violates the Equal Protection Clause of the Fourteenth Amendment
because it “denied [her] and others arrested the ability to seek meaningful remedies
under the law.” Am. Compl. at 11. Here, too, plaintiff fails to explain how Sheehan and
Hawkins’ failure to cooperate with the Albany Community Police Review Board
(1) amounted to her being treated differently than similarly-situated individuals, or
(2) prevented her from being able to seek “meaningful remedies under the law.” Id.
Firstly, as for being able to seek remedies under the law, plaintiff is pursuing this civil
rights lawsuit, which cuts against this claim. Secondly, even if Sheehan and Hawkins’
alleged refusal to cooperate with the Albany Community Police Review Board somehow
prevented plaintiff from being able to seek certain “meaningful remedies under the law,”
7 	Plaintiff does not cite the source of these comments. She does not specify when these comments
were made and in what context. It is unclear whether these comments refer to the protest in which
plaintiff was involved.
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plaintiff does not explain how this inability is a violation of the Equal Protection clause.
Id.
Accordingly, despite already affording plaintiff an opportunity to amend on her
Fourteenth Amendment Equal Protection claim, she has not cured its defects.
Therefore, it is recommended that plaintiff’s Fourteenth Amendment equal protection
claim be dismissed for failure to state a claim with one final opportunity to amend.
D. Fourteenth Amendment Deprivation of Property
Plaintiff contends that her cell phone was knocked out of her hand during her
arrest, that she was told she could come to the station to collect her property the next
day, and that when she returned, she was told that her phone was not in police custody.
Am. Compl. at 11. Plaintiff, therefore, contends that she was deprived of her property
without due process. Plaintiff has not demonstrated the inadequacy of a state post-
deprivation remedy. As with the original complaint, in the Amended Complaint, plaintiff
does not demonstrate that her property was lost due to “adherence to an established
state or municipal policy.” Grytsyk v. Morales, 527 F. Supp. 3d 639, 655 (S.D.N.Y.
2021) (quoting Pangburn v. Culbertson, 200 F.3d 65, 71 (2d Cir. 1999) (“[T]he
availability of post-deprivation remedies [will] not defeat a § 1983 claim where the
alleged loss results from adherence to an established state or municipal policy.”)). In
fact, she alleges the opposite, asserting that her phone was lost due to the absence of
an established policy. See Am. Compl. at 11. (“failure to implement a proper system
for tracking and securing property during my arrest demonstrates systemic neglect.”).
“Because New York provides an adequate post-deprivation remedy in the form of
state law causes of action for negligence, replevin, or conversion,” and plaintiff has not
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shown that her phone was lost due to adherence to an established municipal policy, it is
recommended that her Fourteenth Amendment deprivation of property without due
process claim be dismissed. See Dkt. No. 4 at 15 (citing Dove v. City of New York, No.
99-cv-3020 (DC), 2000 WL 342682, at *3 (S.D.N.Y. Mar. 30, 2000)); see also Grytsyk,
527 F. Supp. 3d at 655.8
Accordingly, as there exists an adequate state post-deprivation remedy for
plaintiff’s lost phone and plaintiff has again failed to demonstrate that her property was
lost due to the failure to adhere to an established municipal or state policy, it is
recommended that plaintiff’s Fourteenth Amendment deprivation of property claim be
dismissed for failure to state a claim upon which relief can be granted and without
opportunity to amend.
E. Monell Claims
Plaintiff names the City of Albany, City of Albany Mayor Kathy Sheehan,9 and
former City of Albany Police Chief Eric Hawkins as liable for the police officers’ alleged
unconstitutional conduct based on the alleged failure to train and/or supervise the
officers.10 As noted, plaintiff contends that Sheehan and Hawkins failed to adequately
train officers “in handling civil disobedience” and that their “inaction and poor leadership
created conditions that escalated tensions and led to the violations described above.”
Am. Compl. at 11. In the causes of action section of her amended complaint, plaintiff
contends that Sheehan and Hawkins failed to “adequately train and supervise officers”
8 The Court already provided plaintiff with a copy of this unpublished case when it served her with the
January 2, 20205, Report-Recommendation & Order. See Dkt. No. 4-1.
9 	Although not specified, because plaintiff discusses this in the Monell section of her Amended
complaint, it appears plaintiff is raising these claims against Sheehan and Hawkins in their official
capacities.
10 See Segal v. City of New York, 459 F.3d 207, 219 (2d Cir. 2006) (explaining that Monell “extends
liability to a municipal organization,” and does not create a separate cause of action).
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on the “proper handling of peaceful protests,” “limits on the use of force,” and
“Constitutional protections under the First and Fourth Amendments.” Id. at 16. She
further contends that Sheehan and Hawkins’ “failure to discipline officers for using
excessive force, covering their badges, and targeting Black protestors demonstrates a
willful disregard for constitutional rights.” Id. Plaintiff contends that Sheehan’s and
Hawkins’ statements about “peaceful protestors” “further incited hostility toward
protestors.” Id. at 11. She contends further that Hawkins “authoriz[ed] officers” to cover
their name tags and “failure to ensure that officers complied with uniform regulations
represents a willful disregard for legal and ethical standards.” Id.
1. City of Albany – Failure to Train or Supervise
Liberally read and applying special solicitude, plaintiff is arguing that the City of
Albany was deliberately indifferent to officers’ constitutional violations because it failed
to train or supervise the police officers involved in the alleged constitutional violations.
See, e.g., Tirado v. City of New York, 19-CV-10377 (LAK)(SN), 2021 WL 11646299, at
*9 (S.D.N.Y. Jan. 25, 2021) (explaining that “[m]unicipal liability can also be established
through a municipal policymaker’s failure to appropriately train, supervise, discipline, or
screen municipal employees where such a failure amounts to deliberate indifference to
the rights of those with whom municipal employees will come into contact”) (citation and
internal quotation marks omitted). “A municipality's culpability for a deprivation of rights
is at its most tenuous where a claim turns on a failure to train.” Jackson v. Nassau
Cnty., No. 18-CV-3007(JS)(AYS), 2024 WL 4252047, at *33 (E.D.N.Y. Sept. 20, 2024)
(quoting Connick v. Thompson, 563 U.S. 51, 61 (2011)); see also Vasquez v. City of
New York, No. 20-CV-4641 (ER), 2023 WL 8551715, at *5 (S.D.N.Y. Dec. 11, 2023)
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(quoting Greene v. City of New York, 742 F. App’x 532, 536 (2d Cir. 2018) (summary
order) (“The Supreme Court and Second Circuit consider a § 1983 claim against a
municipality to be ‘at its weakest’ when it relies on such an alleged failure to train or
supervise.”)). “Deliberate indifference requires ‘proof that a municipal actor disregarded
a known or obvious consequence of his action.’” Tirado, 2021 WL 11646299, at *11
(quoting Connick v. Thompson, 563 U.S. 51, 62 (2011)). “[A] successful Monell claim
based on a failure to train theory must show that 'the need to act [was] so obvious, and
the inadequacy of current practices so likely to result in a deprivation of federal rights.’”
Id. (quoting Reynolds v. Giuliani, 506 50 F.3d 183, 192 (2d Cir. 2007)).
“The Second Circuit has identified three requirements to determine whether a
‘failure to train . . . constitutes deliberate indifference.’” Jackson, 2024 WL 4252047, at
*33 (quoting Jenkins v. City of N.Y., 478 F.3d 76, 94 (2d Cir. 2007)).
The plaintiff must show: “[f]irst . . . that [the] policymaker knows to a moral
certainty that her employees will confront a given situation . . . [;] Second,
. . . the plaintiff must show that the situation either 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.
Finally, the plaintiff must show that the wrong choice by the city employee
will frequently cause the deprivation of a citizen's constitutional rights.”
Id. (quoting Jenkins, 478 F.3d at 94). “In the case of a failure to train, a court may draw
the inference that a municipal policy exists from ‘evidence that the municipality so failed
to train its employees as to display a deliberate indifference to the constitutional rights of
those within its jurisdiction.’” Tirado, 2021 WL 11646299, at *9 (quoting Ricciuti v.
N.Y.C. Transit Auth., 941 F.2d 119, 123 (2d Cir. 1991)). Under the failure to supervise
or discipline theory, a plaintiff must show that ‘the municipality failed to adequately
supervise or discipline its employees (thereby implicitly encouraging or ratifying their
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unlawful conduct) . . . [and] that such a failure of supervision or discipline was
tantamount to deliberate indifference.’” Buari v. City of N.Y., 530 F. Supp. 3d 356, 399
(S.D.N.Y. 2021); Jackson, 2024 WL 4252047, at *34 (quoting Buari, 530 F. Supp. 2d at
399) .“In the failure to supervise context, a plaintiff must establish deliberate indifference
by demonstrating ‘that the need for more or better supervision . . . was obvious,’ but the
defendant ‘made no meaningful attempt’ to prevent the constitutional violation.” Tirado,
2021 WL 11646299, at *9 (quoting Amnesty Am. v. Town of West Hartford, 361 F.3d
113, 127 (2d Cir. 2004)); Mosca v. City of New York, No. 17-CV-4327, 2018 WL
6835524, at * 15 (E.D.N.Y. Dec. 26, 2018), report & recommendation adopted in part,
rejected in part on other grounds, 2019 WL 938936, at *8-10 (S.D.N.Y. Feb. 25, 2019)
(“In order to plausibly allege a pattern of similar violations, a complaint must reference
comparable incidents that occurred prior to the events in question and cannot rely on
events that post-date the subject act of alleged misconduct”) .
As for the City of Albany, plaintiff does not identify a policy or custom of failing to
train or supervise. It appears she is attempting to argue that the City of Albany failed to
implement proper policies and training such that the officers would be able to perform
their duties without violating individuals’ constitutional rights. “[T]he only facts [plaintiff]
alleges in support of [her] conclusory allegation of a policy, custom, or practice are
those underlying the alleged constitutional violation against [her]. [She] does not
include any factual allegations about other incidents that might raise an inference of ‘a
practice so widespread that . . . supervisory authorities must have been aware of it.”
Baumeister v. Erie Cnty., No. 23-CV-1150-LJV, 2024 WL 4362311, at *7 (W.D.N.Y.
Sept. 30, 2024) (citing Iaconvangelo v. Corr. Med. Care, Inc., 642 F. App’x 10, 13 (2d
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Cir. 2015)). “After Twombly and Iqbal, courts generally require that [plaintiffs] ‘provide
more than a simple recitation of their theory of liability, even if that theory is based on a
failure to train.’” Baumeister, 2024 WL 4362311, at *8 (quoting Buari, 530 F. Supp. 3d
at 400 (quoting Tieman v. City of Newburgh, No. 13-CV-4178 (KMK), 2015 WL
1379652, at *22 (S.D.N.Y. Mar. 26, 2015)).
When a plaintiff seeks to assert a failure to train theory, “a plaintiff must plausibly
allege a specific deficiency in the municipality's training.” Tirado, 2021 WL 11646299, at
*9 (quoting Calderon v. City of New York, 138 F. Supp. 3d 593, 613 (S.D.N.Y. 2015)).
“Although a plaintiff cannot be expected to have and know the details of a municipality's
training programs at the pleading stage, she is not relieved from her “‘obligation under
Iqbal to plead a facially plausible claim.’” Id. (quoting Calderon, 138 F. Supp. 3d at
613)). “[T]he Second Circuit has noted that a policy of acquiescing in or ratifying
unlawful conduct “cannot be inferred from the failure of those in charge to discipline a
single . . . officer for a single incident of illegality; instead, there must be more evidence
of supervisory indifference, such as acquiescence in a prior pattern of conduct.”
Baumeister, 2024 WL 4362311, at *7 (quoting Lucente v. Cnty. of Suffolk, 980 F.3d 284,
306 (2d Cir. 2020)).
“To support a claim based on inaction, the ‘custom’ or ‘policy’ must be
demonstrated by showing that the municipality's failure to supervise or properly train its
police force is so severe as to constitute ‘deliberate indifference’ to a plaintiff's rights.”
Washington v. Eaton, No. 3:20-CV-1111(VLB), 2021 WL 3291658, at *8 (D. Conn. Aug.
2, 2021) (citing City of Canton v. Harris, 489 U.S. 378, 388-89 (1989)). “The plaintiff
must show that the need for more or better protocols or supervision to protect against
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constitutional violations was obvious, such that it amounts to a deliberate choice by the
municipality.” Id. (citing Vann v. City of New York, 72 F.3d 1040, 1049 (2d Cir.1995)).
“‘An obvious need may be demonstrated through proof of repeated complaints of civil
rights violations; deliberate indifference may be inferred if the complaints are followed
by no meaningful attempt on the part of the municipality to investigate or to forestall
further incidents.’” Id. (quoting Vann, 72 F.3d at 1049).
Plaintiff does not argue that the municipality, Sheehan, or Hawkins were
“‘knowingly and deliberately indifferent to the possibility that its police officers were
wont’ to violate the constitutional rights of arrestees.” Amnesty Am., 361 F.3d at 127)
(quoting Fiacco v. City of Rensselaer, 783 F.2d 319, 326 (2d Cir. 1986)). A plaintiff
“injured by a police officer’s use of excessive force may establish a basis for municipal
liability by alleging that the [municipality]’s policymakers were ‘knowingly and
deliberately indifferent to the possibility that its police officers were wont’ to violate the
constitutional rights of arrestees” Amnesty Am., 361 F.3d at 127 (quoting Fiacco v. City
of Rensselaer, 783 F.2d 319, 326 (2d Cir. 1986))). “[T]o proceed on a deliberate-
indifference theory, a plaintiff must first establish ‘that the need for more or better
supervision to protect against constitutional violations was obvious.’ Outlaw v. City of
Hartford, 884 F.3d 351, 373 (2d Cir. 2018) (internal quotation marks omitted) (quoting
Amnesty Am., 361 F.3d at 127).
But a plaintiff cannot raise a viable claim simply by asserting that deficient
training caused a constitutional violation. See Simms v. City of New York,
480 F. App'x 627, 631 n.4 (2d Cir. 2012) (summary order). Instead, “[a]
pattern 	of 	similar 	constitutional 	violations 	by 	untrained 	employees 	is
‘ordinarily necessary’ to demonstrate deliberate indifference for purposes of
failure to train.” Connick, 563 U.S. at 62 (quoting Bd. of Cnty. Comm'rs. v.
Brown, 520 U.S. 397, 409 (1997)). “Without notice that a course of training
is deficient in a particular respect,” the Supreme Court has explained,
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“decisionmakers can hardly be said to have deliberately chosen a training
program that will cause violations of constitutional rights.” Id.
Baumeister, 2024 WL 4362311, at *8. Accordingly, it is recommended that plaintiff’s
failure to train and failure to supervise claim, pursuant to Monell, against the City of
Albany be dismissed without prejudice and with an opportunity to amend.
2. Widespread Practice, Custom, or Usage
Arguably, plaintiff is also attempting to allege that, Hawkins and Sheehan’s public
comments about Black Lives Matters protesters, demonstrates discriminatory animus.
Plaintiff contends that “[t]heir inaction and poor leadership created conditions that
escalated tensions and led to the violations” set forth in the Amended Complaint. Am.
Compl. at 11. She similarly accuses Hawkins of making “vague and unsupported
claims of a regional safety threat” which “further incited hostility toward protesters.” Id.
It appears that plaintiff is suggesting that Sheehan and Hawkins alleged public
statements about Black Lives Protesters, generally, created a de facto policy or custom
of “hostility toward protestors” or somehow ratified police officers’ violations of such
protesters’ constitutional rights.
To plausibly allege a practice so consistent and widespread that, although
not expressly authorized, constitutes a custom 	or usage of which a
supervising policymaker must have been aware, a “[p]laintiff must allege
‘that the relevant practice is so widespread as to have the force of law.’ ”
Kucharczyk, 95 F. Supp. 3d at 544 (quoting Brown, 520 U.S. at 404); see
Patterson v. County of Oneida, 375 F.3d 206, 226 (2d Cir. 2004). “[T]here
must be ‘sufficient instances of tolerant awareness by supervisors of
abusive conduct to support an inference that they had a policy, custom or
usage of acquiescence in such abuse.’” Choudhury v. NYC Health & Hosps.
Corp., 25 Civ. 5240 (PAE), 2026 WL 322956, at *12 (S.D.N.Y. Feb. 6, 2026)
(quoting Lucente v. County of Suffolk, 980 F.3d 284, 298 (2d Cir. 2020)). At
that point, “the unconstitutional conduct is so persistent and widespread that
it can constitute a custom or usage of which a supervising policymaker must
have been aware.” Id. (quoting Lucente, 980 F. 3d at 298). “[T]he mere
assertion . . . that a municipality has such a custom or policy is insufficient
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in 	the 	absence 	of 	allegations 	of 	fact 	tending 	to 	support, 	at 	least
circumstantially, such an inference.” Dwares v. City of New York, 985 F.2d
94, 100 (2d Cir. 1993).
Doe v. Tripodi, et al., No. 22-CV-07773 (OEM) (RML), 2026 WL 1078110, at *4
(E.D.N.Y. Apr. 21, 2026). “Boilerplate statements that county employees were acting in
accord with a municipal policy, with no facts to support those statements, are not
sufficient to support a Monell claim.” Forrest v. Cnty. of Greene, 676 F. Supp. 3d 69, 76
(N.D.N.Y. 2023) (internal quotation marks and citation omitted).
Plaintiff does not sufficiently allege a practice “so consistent and wide spread
that, although not expressly authorized, constitutes a custom or usage of which
supervising policy-maker must have been aware.” Taylor v. Henson, No. 25-CV-4867
(JGLC), 2026 WL 915455, at *4 (S.D.N.Y. Apr. 3, 2026) (quoting Brandon v. City of New
York, 705 F. Supp. 2d 161, 276-77 (S.D.N.Y. 2010)). Other than her experience on
April 14 and 21 and allegations of excessive force toward other protesters present
there, uncited and general comments, plaintiff does not set forth a well-settled custom
or practice by the municipality that caused the alleged violations of her constitutional
rights. See, e.g., Boddie v. City of New York, No. 15-cv-4275, 2016 WL 1466555, at *3
(S.D.N.Y. Apr. 13, 2016) (holding that pleading only “two or three instances” of a
constitutional violation falls “far short of showing a policy, custom, or usage”); see also
Jones v. Town of E. Haven, 691 F.3d 72, 81 (2d Cir. 2012) (“[I]solated acts of excessive
force by non-policymaking municipal employees are generally not sufficient to
demonstrate a municipal custom, policy, or usage that would justify municipal liability.”).
To the extent plaintiff attempts to bring Monell liability under a theory that
Sheehan or Hawkins were policy makers and that the municipality should be held liable
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because they “rubberstamped” or “turned a blind eye” to officers’ misconduct, such
claim also fails. Parson v. Campbell, No. 5:25-CV-956 (AJB/MJK), 2025 WL 3514155,
at *9 (N.D.N.Y. Dec. 8, 2025), report and recommendation adopted, No. 5:25-CV-956
(AJB/MJK), 2026 WL 141903 (N.D.N.Y. Jan. 20, 2026) (As an initial matter, Parson
surmises that Lynch and Helms are policy makers. And, even if they were,
“rubberstamp[ing]” or “turn[ing] a blind eye” to their subordinates’ decision-making is not
sufficient to establish either a municipal policy or the delegation of policymaking
authority.”) (quoting Baity v. Kralik, 51 F. Supp. 3d 414, 442 (S.D.N.Y. 2014)).
Accordingly, to the extent plaintiff seeks to set forth a claim against the City of
Albany, pursuant to Monell, alleging a widespread custom, usage, or practice, it is
recommended this claim be dismissed without prejudice and with a final opportunity to
amend.
F. Sheehan and Hawkins
As to any claims against Sheehan and Hawkins,11 official capacity claims against
these defendants are, in effect, claims against the municipality that employs them.
Where, as here, the plaintiff has also named the municipality as a defendant, courts
generally dismiss official-capacity claims as redundant or duplicative. See, e.g., Hulett v.
City of Syracuse, 253 F. Supp. 3d 462, 498–99 (N.D.N.Y. 2017); Booker v. Bd. of Educ.,
Baldwinsville Cent. Sch. Dist., 238 F. Supp. 2d 469, 475 (N.D.N.Y. 2002). Thus, to the
extent plaintiff may seek to sue Hawkins and Sheehan in their official capacities, such
11 “A claim made against an individual officer in their official capacity is essentially a claim against the
governmental entity that employs them.” Guarneri v. Schenectady City Police, No. 121CV0496LEKCFH,
2021 WL 4891548, at *2 (N.D.N.Y. Oct. 20, 2021) (citing Lore v. City of Syracuse, 670 F.3d 127, 164 (2d
Cir. 2012) (“[O]fficial-capacity suits generally represent only another way of pleading an action against an
entity of which an officer is an agent.”) (quoting Monell v. Dep’t of Soc. Servs., 436 U.S. 658, 690 n.55
(1978)).
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claims must be dismissed as duplicative of the claims against the city of Albany. As
“Monell does not apply to . . . individuals who are sued in their individual capacity.”
Jackson v. Williams, No. 18-CV-1137, 2017 WL 1162196, at *3 (N.D.N.Y. Mar. 28,
2017). The undersigned thus assesses whether plaintiff has stated any claims against
Sheehan or Hawkins in their individual capacities.
It is well settled that section 1983 does not allow a municipality to be held liable
under a theory of respondeat superior. See, e.g., Iqbal, 556 U.S. at 676. “[T]here is no
special rule for supervisory liability” in § 1983 actions. Tangreti v. Bachmann, 983 F.3d
609, 618 (2d Cir. 2020). Indeed, “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.’” Sash v. United States, 674 F. Supp. 2d 531, 542
(S.D.N.Y. 2009) (quoting Wright v. Smith, 21 F.3d 496, 501 (2d Cir. 1994)); see also
Wiggins v. Griffin, 86 F.4th 987, 996 (2d Cir. 2023). Thus, it is insufficient to allege that
a defendant supervised the state actor who allegedly committed the constitutional
violation. See Tangreti, 983 F.3d at 618. “‘[A] defendant in a § 1983 action may not be
held liable for damages for constitutional violations merely because he held a high
position of authority.’” Kweller v. Cnty. of Broome, No. 3:24-CV-1328 (AJB/ML), 2025
WL 2719897, at *17 (N.D.N.Y. Sept. 24, 2025) reconsideration denied, No. 3:24-CV-
1328 (AJB/ML), 2025 WL 3280745 (N.D.N.Y. Nov. 25, 2025) (quoting Black v. Coughlin,
76 F.3d 72, 74 (2d Cir. 1996)). Rather, “a plaintiff must show the defendant’s personal
involvement in the alleged constitutional violations.” Richardson v. Goord, 347 F.3d 431,
435 (2d Cir. 2003). Said another way, a “supervisory liability claim under § 1983 cannot
proceed absent allegations that the supervisor was personally involved in the alleged
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constitutional violation through their own conduct.” Anderson v. City of Mount Vernon,
No. 23-CV-3963-NSR, 2025 WL 2773144, at *5 (S.D.N.Y. Sept. 29, 2025) (citing
Tangreti, 983 F.3d at 618-19).
“Liability based solely on the actions of a subordinate under the watch of a
superior, or solely due to a failure to supervise, without more, constitutes precisely the
type of vicarious, respondeat superior liability that Iqbal and Tangreti eliminate.” Myers
ex rel. Est. of Myers v. Davenport, 1:21-CV-0922 (LEK/CFH), 2022 WL 3017367, at *4
(N.D.N.Y. July 29, 2022) (citing Iqbal, 566 U.S. at 676)). Here, plaintiff seeks to hold
Sheehan and Hawkins’ liable for the conduct of their apparent subordinates solely due
to their supervisory role.12 As plaintiff’s amended complaint seeks to hold Sheehan and
Hawkins responsible solely due to the alleged misconduct of their subordinates based
on their alleged failure to supervise or train, plaintiff has failed to set forth a claim
against Sheehan13 and Hawkins.
Further, plaintiff contends that Hawkins’ “authorized” officers covering their
nametags, and she connects this claim to Hawkins’ alleged “failure to ensure that
officers complied with uniform regulations.” Am. Compl. at 11. Yet, plaintiff does not
contend that Hawkins or Sheehan, prior to the alleged use of excessive force on plaintiff
on April 21, 2021, were aware that officers intentionally covered their nametags during
the course of arrests in order to commit misconduct and avoid repercussions. See id.
She presents no other incidents of intentional badge covering during arrests involving
City of Albany Police Department officers; thus, she has not demonstrated that either
12 Plaintiff does not claim that Sheehan or Hawkins were final policy makers. See, e.g., Rindgen v. Cnty.
of Broome, No. 3:24-CV-1325 (AJB/ML), 2025 WL 3442967, at *4 (N.D.N.Y. Dec. 1, 2025).
13 She also does not allege or demonstrate that Sheehan had any discretion over the Police Department’s
training or supervision of officers.
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defendant had knowledge but failed to take corrective action. See Greer v. Vill. of
Scarsdale, No. 22-CV-7322 (NSR), 2026 WL 658519, at *8 (S.D.N.Y. Mar. 9, 2026
(citing Urquhart v. Metro. Transp. Auth., 975 F. Supp. 2d 320, 343 (S.D.N.Y. 2013)).
She does not demonstrate how defendants created a policy or custom fostering the
alleged misconduct. 	See id.
Accordingly, it is recommended that, insofar as plaintiff attempts to set forth 1983
claims against Sheehan and Hawkins in their individual capacities, such claims be
dismissed for failure to establish defendants’ personal involvement in the alleged
constitutional violations. Due to plaintiff’s pro se status, however, it is recommended
that plaintiff be afforded one final opportunity to amend to attempt to bring section 1983
claims against Sheehan and Hawkins in their individual capacities.
IV. Conclusion
WHEREFORE, for the reasons set forth herein, as to the undersigned’s review of
plaintiff’s Amended Complaint, Dkt. No. 5, pursuant to 28 U.S.C. §§ 1915, 1915A, it is
hereby:
RECOMMENDED, that plaintiff’s Fourth Amendment excessive force claim
proceed, but to avoid piecemeal litigation, service not issue until the District Judge has
reviewed this Report-Recommendation & Order, determined whether plaintiff may file a
second amended complaint, and the Court reviews any such second amended
complaint14; and it is further
14 If the District Judge adopts this Report-Recommendation & Order and plaintiff files a second amended
complaint, she must reallege all facts as well as her Fourth Amendment claim. If she does not reallege
the Fourth Amendment claim, it will be deemed abandoned. Similarly, if she omits any of the facts
included in the amended complaint, such facts will be deemed abandoned. Plaintiff is not to include any
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RECOMMENDED, that, if the District Judge adopts this Report-Recommendation
& Order, plaintiff be granted thirty (30) days from the filing date of the District Judge’s
Order reviewing this Report-Recommendation & Order, to file a second amended
complaint, and it is further
RECOMMENDED, that plaintiff’s Fourteenth Amendment deprivation of property
without due process claim be DISMISSED with prejudice and without opportunity to
amend; and it is further
RECOMMENDED, that plaintiff’s Fourteenth Amendment Equal Protection claim
be DISMISSED without prejudice and with opportunity to amend; and it is further
RECOMMENDED, that plaintiff’s First Amendment retaliatory arrest claim be
DISMISSED without prejudice and with opportunity to amend; and it is further
RECOMMENDED, that plaintiff’s First Amendment free speech claim be
DISMISSED without prejudice and with opportunity to amend; and it is further
RECOMMENDED, that plaintiff’s First Amendment right of peaceable assembly
claim be DISMISSED without prejudice and with opportunity to amend;
RECOMMENDED, that plaintiff’s claims for liability pursuant to Monell against the
City of Albany be DISMISSED without prejudice and with opportunity to amend; and it is
further
claims that the District Judge may dismiss with prejudice. Any second amended complaint would
supersede and replace the amended complaint in its entirety. Plaintiff may not incorporate any portion of
the amended complaint by reference into the second amended complaint. Further, plaintiff’s time to file a
second amended complaint would not begin to run until after the District Judge reviews this Report-
Recommendation and Order and files his decision on the docket.
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RECOMMENDED, that plaintiff’s claims against Sheehan and Hawkins, to the
extent they are brought against them in their individual capacities, be DISMISSED
without prejudice and with opportunity to amend; and it is further
RECOMMENDED, that plaintiff’s claims against Sheehan and Hawkins, to the
extent they are brought against them in their official capacities, be DISMISSED with
prejudice and without opportunity to amend as duplicative of her claims against the City
of Albany; and it is
ORDERED, that the Clerk serve this Report-Recommendation & Order on
plaintiff in accordance with the Local Rules.
IT IS SO ORDERED.
Pursuant to 28 U.S.C. § 636(b)(1), plaintiff has fourteen (14) days within which to file
written objections to the foregoing report. Such objections shall be filed with the Clerk
of the Court. FAILURE TO OBJECT TO THIS REPORT WITHIN FOURTEEN (14)
DAYS WILL PRECLUDE APPELLATE REVIEW. See Roldan v. Racette, 984 F.2d 85,
89 (2d Cir. 1993) (citing Small v. Sec’y of Health and Human Servs., 892 F.2d 15, 16
(2d Cir. 1999)); see also 28 U.S.C. § 636(b)(1); FED. R. CIV . P. 72 & 6(a).15
Dated: June 8, 2026
Albany, New York
15 If you are proceeding pro se and are served with this Report-Recommendation and Order by mail,
three (3) additional days will be added to the fourteen (14) day period, meaning that you have seventeen
(17) days from the date the Report-Recommendation and Order was mailed to you to serve and file
objections. See F ED. R. C IV . P. 6(d). If the last day of that prescribed period falls on a Saturday, Sunday,
or legal holiday, then the deadline is extended until the end of the next day that is not a Saturday,
Sunday, or legal holiday. See id. § 6(a)(1)(c).
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