Herrera v. Shea

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF NEW YORK

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VICTOR M. HERRERA,

Plaintiff,

MEMORANDUM & ORDER

- against - 20-CV-3665 (PKC) (VMS)

DERMOT SHEA, Commissioner of the City of

New York Police Department; STEVEN

BANKS, Commissioner of the City of New

York Human Resource Administration;

SAMUEL SPITZBERG; DEXTERLY

FREEMAN; NIGEL MARKS; CITY OF NEW

YORK HUMAN RESOURCE

ADMINISTRATION; HRA SERGEANT

CURCIO; HRA SERGEANT KNOX;

HRA LIEUTENANT WRIGHT; HRA

OFFICER ANNETTE VASQUEZ; HRA

OFFICER HENNA; CITY OF NEW YORK

POLICE DEPARTMENT; LIEUTENANT

VASQUEZ, NYPD 84th Precinct; JOHN DOE,

NYPD 84th Precinct Uniformed Officer; JANE

DOE, NYPD 84th Precinct Uniformed Officer;

JANE DOE, NYPD Plainclothes Officer #1;

JANE DOE, NYPD Plainclothes Officer #2;

SUMMIT SECURITY; JOHN DOE, Summit

Security Supervisor; JOHN DOE, Summit

Security Officer #1; JOHN DOE, Summit

Security Officer #2; OFFICE OF

TEMPORARY AND DISABILITY

ASSISTANCE; and CITY OF NEW YORK,

Defendants.1

1 The defendants listed in the above caption are compiled from the parties identified in the

caption of Plaintiff’s Complaint and the parties described as defendants in the body of the

Complaint (Dkt. 2, ¶¶ 4–23), which do not match. See Triestman v. Fed. Bureau of Prisons, 470

F.3d 471, 474 (2d Cir. 2006) (“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.”

(emphasis omitted) (internal quotation and citations omitted)). As explained herein, Plaintiff shall

be given leave to file an amended complaint to state claims against some, but not all, of these

defendants. Plaintiff’s amended complaint must identify each defendant in both the caption and

the body of the document. Plaintiff must also ensure that the parties are identified consistently.

For example, in the present Complaint, Defendant Dexterly Freeman is variously identified as

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PAMELA K. CHEN, United States District Judge:

Plaintiff Victor M. Herrera (“Plaintiff”) brings this pro se action under 42 U.S.C. § 1983,

alleging violations of his federal constitutional, state constitutional, and state common-law rights.2

His complaint alleges claims against a long list of defendants—including the City of New York,

the City of New York Human Resource Administration (“HRA”), the City of New York Police

Department (“NYPD”), Summit Security (“Summit”), the New York State Office of Temporary

and Disability Assistance (“OTDA”), and various individuals associated with these entities in their

official and individual capacities. Plaintiff’s application to proceed in forma pauperis (“IFP”)

pursuant to 28 U.S.C. § 1915 is granted. For the reasons discussed below: (1) Plaintiff’s federal

constitutional claims are allowed to proceed against Defendants HRA Sergeant Knox, HRA

Officer Annette Vasquez, HRA Officer Henna, NYPD Uniformed Officer John Doe of the 84th

Precinct, NYPD Uniformed Officer Jane Doe of the 84th Precinct, NYPD Plainclothes Officer

Jane Doe #1, and NYPD Plainclothes Officer Jane Doe #2; and (2) Plaintiff’s claim under Article

I, § 12 of the New York State Constitution against the City of New York is allowed to proceed.

The claims against the HRA, the NYPD, and the OTDA are dismissed, as they are entities that

cannot be sued.

“Dexterly Freeman” (id. caption, ¶¶ 7, 36, 42), “Dexterly Freedman” (id. ¶¶ 21, 35), and “Dexter

Freedman” (id. ¶ 9). Moreover, the Complaint’s caption identifies Attorney “Mark Nigel” as a

defendant, but the body of the Complaint refers to “Nigel Marks” throughout. (See id. ¶¶ 36, 42.)

For purposes of this Order, the Court assumes that “Mark Nigel” and “Nigel Marks” are the same

person, and the Court uses “Dexterly Freeman” and “Nigel Marks” for consistency.

2 This action was transferred to this Court from the United States District Court for the

Southern District of New York by order on August 6, 2020. (Dkt. 5.)

Plaintiff is granted 45 days’ leave to file an amended complaint to allege claims against

NYPD Commissioner Dermot Shea, Samuel Spitzberg, HRA Commissioner Steven Banks,

Dexterly Freeman, HRA Sergeant Curcio, HRA Lieutenant Wright, NYPD Lieutenant Vasquez of

the 84th Precinct, Summit, Summit Supervisor John Doe, Summit Officer John Doe #1, Summit

Officer John Doe #2, and Attorney Nigel Marks. Plaintiff is also given leave to amend his

complaint with respect to claims dismissed below against the City of New York and the individual

HRA and NYPD defendants against whom Plaintiff’s federal constitutional claims shall proceed.3

BACKGROUND

Plaintiff alleges the following facts, which are accepted as true at this stage in the case. See

Milan v. Wertheimer, 808 F.3d 961, 963 (2d Cir. 2015) (per curiam) (citation omitted).

On December 19, 2019, Plaintiff had a scheduled hearing concerning his “Social Security

Benefits”4 at an HRA office in Brooklyn, New York. (Complaint, Dkt. 2, ¶¶ 28, 31; see also id.

¶¶ 10–11, 18–20.) When Plaintiff arrived for the hearing, however, Summit Officer John Doe #1

“raised an alarm” and summoned HRA Officer Annette Vasquez, who allegedly had had “previous

contact with [P]laintiff and was familiar with [Plaintiff’s] reform activities and complaints pursued

against” Summit Officer John Doe #1. (Id. ¶ 29.) According to Plaintiff, Summit Officer John

Doe #1 “ha[d] previously created a hostile environment that resulted in [Plaintiff] being barred

3 Specifically, those dismissed claims include: the Section 1983 claim under Monell v.

Department of Social Services, 436 U.S. 658 (1978), against the City of New York; the claims

under the New York State Constitution other than that under Article I, § 12 against the City of

New York; the conspiracy claim; and the malicious-prosecution and abuse-of-process claims.

4 Although the Complaint uses the term “Social Security Benefits,” it is unclear if Plaintiff

actually means “social services” benefits. Elsewhere, the Complaint references benefits under the

“Supplemental Nutrition Assistance Program,” i.e., food stamps (Dkt. 2, ¶ 35), and “Social

Services Benefits” (id. ¶ 50).

from all access to the procedural forum[,] in retaliation for having invoked his constitutional right

to petition for redress of grievances.” (Id.)

On this occasion, Summit Officer John Doe #1 allegedly alerted HRA Officer Annette

Vasquez after Plaintiff refused to show certain documents that Plaintiff believed to be protected as

private under the Health Insurance Portability and Accountability Act. (See id. ¶¶ 29–31.) Upon

being summoned, HRA Officer Annette Vasquez “engaged [P]laintiff in a hostile confrontation.”

(Id. ¶ 30.) At some point thereafter, NYPD Lieutenant Vasquez and NYPD Uniformed Officers

John Doe and Jane Doe, all from the 84th Precinct, arrived. (See id. ¶¶ 32–33.) NYPD Uniformed

Officers John Doe and Jane Doe “forcefully pushed [P]laintiff against the wall” and handcuffed

him. (Id. ¶ 32.) Meanwhile, according to Plaintiff, NYPD Lieutenant Vasquez “failed to

appropriately supervise his subordinate NYPD Police Officers and authorized an unlawful arrest”

of Plaintiff. (Id. ¶ 33.) Plaintiff was escorted out of the building, where NYPD Uniformed Officer

John Doe eventually released him and returned his property. (Id. ¶¶ 33–34.)

As Plaintiff proceeded toward the subway to go home, HRA Sergeant Knox, HRA Officer

Henna, and HRA Officer Annette Vasquez allegedly “accosted” Plaintiff and “forcefully pushed

[him] against a gate by the Brooklyn Law School.” (Id. ¶ 34.) Then, with the help of NYPD

Plainclothes Officers Jane Doe #1 and Jane Doe #2, the HRA officers “forcefully plac[ed]

[P]laintiff in restraints and unlawfully arrest[ed]” him. (Id.)

Plaintiff avers that, “during the course of actions” leading up to and including the events

on December 19, 2019, he was communicating with HRA Sergeant Curcio, demanding to speak

with Dexterly Freeman, the Deputy Commissioner of Police Operations for the HRA. (Id. ¶¶ 6–

7, 35.) Plaintiff allegedly had “had prior communication” with Dexterly Freeman “regarding the

acts and continued acts of his subordinate employees in obstructing or interfering with” Plaintiff’s

process of applying for benefits. (Id. ¶ 35.) According to Plaintiff, these acts of obstruction or

interference were “acts of retaliation motivated by [Plaintiff’s] pursuit of his constitutionally

protected activity.” (Id. ¶ 36.) Plaintiff moreover alleges that, “[s]ince March 2018,” he “has been

subjected to a host of debilitating practices intended to discourage him from his well-known reform

activities,” including being “the subject of wrongful arrest and restraint of liberty.” (Id. ¶ 37.)

“[P]laintiff has filed numerous grievances and complaints” with HRA Commissioner Steven

Banks, Dexterly Freeman, OTDA Director of Hearings Samuel Spitzberg, and Attorney Nigel

Marks—all “to no avail.” (Id. ¶ 36; see also id. ¶¶ 5–6.) This lack of response, in Plaintiff’s view,

“was part of a widespread pattern of behavior,” with Defendants “repeatedly turn[ing] a blind[]

eye” and “taking no preventative precautions to divert what they were aware were retaliatory

actions[.]” (Id. ¶ 36.)

Plaintiff also alleges that at some point, NYPD and HRA officers, Summit Officer John

Doe #1, Summit Officer John Doe #2, Summit Supervisor John Doe, and the City of New York

maliciously and falsely commenced criminal proceedings against Plaintiff “to cover up their own

misconduct and unwarranted use of force.” (Id. ¶¶ 63–64.) The criminal charges were ultimately

dropped. (Id. ¶ 66.)

Plaintiff alleges seven claims: (1) a claim under 42 U.S.C. § 1983 for false arrest, wrongful

imprisonment, and excessive force in violation of the Fourth and Fourteenth Amendments to the

United States Constitution (id. ¶¶ 39–40); (2) a claim under 42 U.S.C. § 1983 for deprivation of

the rights to petition and expression in violation of the First and Fourteenth Amendments to the

United States Constitution (id. ¶¶ 42–43); (3) a claim under Monell v. Department of Social

Services, 436 U.S. 658 (1978) (id. ¶¶ 45–53); (4) an equal-protection claim under Article I, § 11

of the New York State Constitution (id. ¶ 55); (5) a claim of unlawful search and seizure, false

arrest, wrongful imprisonment, and excessive force under Article I, § 12 of the New York State

Constitution (id. ¶¶ 57–58); (6) a claim of conspiracy to deprive Plaintiff of his constitutional

rights (id. ¶¶ 60–61); and (7) state common law claims of malicious abuse of process and malicious

prosecution (id. ¶¶ 63–67). Plaintiff seeks declaratory, injunctive, and monetary relief. (Id. at 14.)

DISCUSSION

I. Legal Standard

A complaint must plead “enough facts to state a claim to relief that is plausible on its face.”

Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). “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.’” Matson v. Bd. of Educ., 631 F.3d 57, 63 (2d Cir. 2011)

(quoting Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)). Although all factual allegations contained

in the Complaint are assumed to be true, this rule does not extend “to legal conclusions.” Iqbal,

556 U.S. at 678. “Threadbare recitals of the elements of a cause of action, supported by mere

conclusory statements, do not suffice.” Id. (citing Twombly, 550 U.S. at 555).

At the same time, pro se pleadings are to “be held to less stringent standards than formal

pleadings drafted by lawyers.” Erickson v. Pardus, 551 U.S. 89, 94 (2007) (per curiam) (quoting

Estelle v. Gamble, 429 U.S. 97, 106 (1976)); see also Harris v. Mills, 572 F.3d 66, 72 (2d Cir.

2009) (noting that even after Twombly, federal courts “remain obligated to construe a pro se

complaint liberally”). This tenet of construing pro se complaints liberally holds true

“particularly when they allege civil rights violations.” McEachin v. McGuinnis, 357 F.3d 197, 200

(2d Cir. 2004) (citing Weinstein v. Albright, 261 F.3d 127, 132 (2d Cir. 2001)); accord Sealed

Plaintiff v. Sealed Defendant, 537 F.3d 185, 191 (2d Cir. 2008). Nevertheless, under 28 U.S.C.

§ 1915(e)(2)(B), a district court shall dismiss an IFP action where it is satisfied that the action

“(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).

II. Analysis

A. Claims Against Agencies of the City and the State of New York

Claims against agencies of the City of New York, including the HRA and the NYPD, are

not allowed, and instead, must be brought against the City of New York. See N.Y. City Charter,

ch. 17, § 396 (“[A]ll actions and proceedings for the recovery of penalties for the violation of any

law shall be brought in the name of the city of New York and not in that of any agency, except

where otherwise provided by law.”); Jenkins v. City of New York, 478 F.3d 76, 93 n.19 (2d Cir.

2007) (“[T]he NYPD is a non-suable agency of the City.” (citation omitted)); Gault v. Admin. Fair

Hearing at 14 Boerum Place, No. 14-CV-7398 (PKC), 2016 WL 3198280, at *3 (E.D.N.Y. June

8, 2016) (“[T]he New York City Department of Homeless Services as an agency of the City of

New York is not a suable entity.” (citation omitted)).

Additionally, under the Eleventh Amendment to the United States Constitution, “neither a

State nor agencies acting under its control may ‘be subject to suit in federal court’” unless the State

has waived its immunity or Congress has abrogated such immunity. P.R. Aqueduct & Sewer Auth.

v. Metcalf & Eddy, Inc., 506 U.S. 139, 144 (1993) (quoting Welch v. Tex. Dep’t of Highways &

Public Transp., 483 U.S. 468, 480 (1987)); see also Will v. Mich. Dep’t of State Police, 491 U.S.

58, 66 (1989) (“The Eleventh Amendment bars [Section 1983] suits unless the State has waived

its immunity, or unless Congress has exercised its undoubted power under § 5 of the Fourteenth

Amendment to override that immunity.” (internal citations omitted)). New York “has not waived

its immunity as to suits seeking either monetary or injunctive relief in federal court.”

Goonewardena v. New York, 475 F. Supp. 2d 310, 322 (S.D.N.Y. 2007) (citing N.Y. Court of

Claims Act § 8 (McKinney 2006)); see also Bertoldi v. State, 712 N.Y.S.2d 113, 115 (App. Div.

2000) (“It is well settled that the Court of Claims has exclusive jurisdiction over actions for money

damages against the State, State agencies, or State officials acting in their official capacities in the

exercise of governmental functions.” (citations omitted)). Nor is § 1983 an abrogation of state

sovereign immunity. See Will, 491 U.S. at 66.

Therefore, to the extent that Plaintiff brings claims against the HRA, the NYPD, and the

OTDA as entities, those claims are not allowed, and are dismissed pursuant to 28 U.S.C.

§ 1915(e)(2)(B)(iii).

B. Section 1983 Claims

“Section 1983 provides a cause of action against any person who deprives an individual of

federally guaranteed rights ‘under color’ of state law.” Filarsky v. Delia, 566 U.S. 377, 383 (2012)

(quoting 42 U.S.C. § 1983). “Thus, to state a claim under Section 1983, a plaintiff must allege

(1) the deprivation of any rights, privileges, or immunities secured by the Constitution and its laws,

and (2) that the deprivation was ‘committed by a person acting under the color of state law.’”

Harrison v. New York, 95 F. Supp. 3d 293, 321 (E.D.N.Y. 2015) (quoting Cornejo v. Bell, 592

F.3d 121, 127 (2d Cir. 2010)).

The Court begins its analysis with the Section 1983 claims against Defendants in their

official capacities, which are essentially claims against the City and the State of New York, and

then turns to the claims against Defendants in their individual capacities.

1. Official-Capacity and Monell Claims

Although state and local officials “literally are persons,” a suit against such an official in

their “official capacity is not a suit against the official but rather is a suit against the official’s

office,” and immunity under the Eleventh Amendment applies. Will, 491 U.S. at 71 (citations

omitted); see also Monell, 436 U.S. at 690 n.55 (“[O]fficial-capacity suits generally represent only

another way of pleading an action against an entity of which an officer is an agent[.]”). As

explained above, New York has not waived its immunity under the Eleventh Amendment. See

supra (citing Goonewardena, 475 F. Supp. 2d at 322; Bertoldi, 712 N.Y.S.2d at 115). Eleventh

Amendment immunity, however, does not extend to suits seeking prospective injunctive relief

against officials. Will, 491 U.S. at 71 n.10 (citing Kentucky v. Graham, 473 U.S. 159, 167 n.14

(1985); Ex parte Young, 209 U.S. 123, 159–60 (1908)). Moreover, local governments and their

officials may be sued directly under § 1983 for monetary, injunctive, or declaratory relief. Monell,

436 U.S. at 690.

Under Monell, a municipality is liable “where [its] failure to train, or the policies or

customs that it has sanctioned, led to an independent constitutional violation.” Segal v. City of

New York, 459 F.3d 207, 219 (2d Cir. 2006) (citations omitted); accord Askins v. Doe No. 1, 727

F.3d 248, 253 (2d Cir. 2013). Monell liability cannot be based on a theory of respondeat superior,

meaning that “a local government may not be sued under § 1983 for an injury inflicted solely by

its employees or agent.” Monell, 436 U.S. at 691, 694. But a local government’s deliberate

indifference in the face of constitutional violations perpetrated by its employees or subordinates

can be a basis for Monell liability. See Amnesty Am. v. Town of West Hartford, 361 F.3d 113, 126

(2d Cir. 2004) (“[W]here a policymaking official exhibits deliberate indifference to constitutional

deprivations caused by subordinates, such that the official’s inaction constitutes a deliberate

choice, that acquiescence may be properly thought of as a city policy or custom that is actionable

under § 1983.” (internal quotations and citations omitted)); see also Cash v. County of Erie, 654

F.3d 324, 334 (2d Cir. 2011) (“A municipal policy may be pronounced or tacit and reflected in

either action or inaction.”). “[B]ecause a single action on a policymaker’s part is sufficient to

create a municipal policy, a single instance of deliberate indifference to subordinates’ actions can

provide a basis for municipal liability.” Amnesty Am., 361 F.3d at 127; see also Pembaur v. City

of Cincinnati, 475 U.S. 469, 480 (1986) (“[M]unicipal liability may be imposed for a single

decision by municipal policymakers under appropriate circumstances.”). Deliberate indifference,

however, “is a stringent standard of fault, requiring proof that a municipal actor disregarded a

known or obvious consequence of [their] action.” Connick v. Thompson, 563 U.S. 51, 61 (2011)

(quoting Board of Cnty. Comm’rs v. Brown, 520 U.S. 397, 410 (1997)). Whether a plaintiff meets

this standard “depends on a careful assessment of the facts at issue in a particular case.” Cash,

654 F.3d at 334 (citing Amnesty Am., 361 F.3d at 128).

Here, Plaintiff alleges that New York City officials knew or should have known about, yet

tacitly condoned, retaliatory acts and other constitutional violations committed by employees or

subordinates against Plaintiff, including the alleged incidents on December 19, 2019. (See

Complaint, Dkt. 2, ¶¶ 36, 45–53.) Yet, the only factual allegations in the Complaint are that

Plaintiff “filed numerous grievances and complaints” with the City, all “to no avail,” and that since

March 2018, Plaintiff has been “subjected to a host” of events like the one on December 19, 2019,

“at the hands of numerous employees, agents, officers, and servants of the City of New York.”

(Id. ¶¶ 36–37, 47.) The other statements in the Complaint are merely conclusory:

• “[The City] repeatedly turned a blind[] eye . . . , taking no preventative precautions

to divert what they were aware were retaliatory actions[.]” (Id. ¶ 36)

• “Defendant City of New York has . . . developed, implemented, enforced,

encouraged, and sanctioned a de facto policy, practice, and/or custom of unlawfully

interfering with and/or arrest[ing], without reasonable suspicion or probable cause,

individuals who exercise their rights under the First Amendment by engaging in

misconduct intended to discourage and deter the pursuit of protected activity.” (Id.)

• “[D]efendant[] City of New York . . . failed to take corrective measures to deter the

illegal action, and ratified the behavior by failing to respond to [Plaintiff’s]

grievances and complaints.” (Id. ¶ 47.)

• “Defendant City of New York planned and implemented a policy, practice, custom

and usage [of] controlling complaining clients in the [HRA] Business Offices by

permitting the NYPD, HRA Police[,] along with Summit [] . . . [,] to use

discriminatory practices and/or procedures that directly criminalized [Plaintiff][.]”

(Id. ¶ 48.)

• “[P]rior to March 2018 and thereafter, the City of New York was aware of

numerous complaints of Police Misconduct involving the use of unwarranted and

unjustified . . . excessive force and retaliatory use of force against [P]laintiff by

members of the NYPD and HRA Police.” (Id. ¶ 51.)

• “It was the policy and/or custom of the City of New York to investigate citizen

complaints of Police Misconduct inadequately and improperly, and acts of

misconduct were instead tolerated by the City of New York, including but not

limited to, incidents listed above.” (Id. ¶ 53.)

Even the few factual allegations contained in the Complaint do not provide details, such as

the number and content of the grievances, when and how the grievances were made, or what other

allegedly retaliatory acts Plaintiff has experienced since March 2018, besides the incidents on

December 19, 2019. Overall, the factual content of the Complaint does not give rise to a reasonable

inference that some action or deliberate indifference by the City of New York plausibly led to

Plaintiff’s alleged constitutional violations. Therefore, Plaintiff’s Monell claim against the City of

New York fails and is dismissed. See 28 U.S.C. § 1915(e)(2)(B)(ii); see also Johnson v. City of

New York, No. 18-CV-4030 (MKB), 2020 WL 249100, at *2 (E.D.N.Y. Jan. 16, 2020) (dismissing

a Monell claim because the plaintiff failed to allege facts “to support an inference that the City had

an official policy or custom that caused a violation of any federally protected right”). Plaintiff is,

however, given leave to amend his pleading as to this claim, and to properly allege facts that would

permit the “careful assessment” of the individual circumstances that is required when evaluating a

Monell claim. See Cash, 654 F.3d at 334; Amnesty Am., 361 F.3d at 128; see also Cruz v. Gomez,

202 F.3d 593, 597–98 (2d Cir. 2000) (“[A] pro se plaintiff who is proceeding in forma pauperis

should be afforded the same opportunity as a pro se fee-paid plaintiff to amend his complaint prior

to its dismissal for failure to state a claim, unless the court can rule out any possibility, however

unlikely it might be, that an amended complaint would succeed in stating a claim.” (quoting Gomez

v. USAA Fed. Sav. Bank, 171 F.3d 794, 796 (2d Cir. 1999))).

Likewise, Plaintiff’s official-capacity claims against OTDA Director of Hearings Samuel

Spitzberg are dismissed with leave to amend. As an official of the State of New York, Spitzberg

may be sued in his official capacity only for prospective injunctive relief, not monetary damages.

See Will, 491 U.S. at 71 n.10; Ex parte Young, 209 U.S. at 159–60. The only allegation in the

Complaint relating to Spitzberg specifically is that Plaintiff filed “numerous grievances and

complaints” with various officials, including Spitzberg, which were ignored. (Complaint, Dkt. 2,

¶ 36.) This allegation does not make clear what, if any, prospective injunctive relief Plaintiff is

seeking against Spitzberg specifically. Thus, Plaintiff’s claims against Spitzberg in his official

capacity are dismissed with leave to amend. See 28 U.S.C. § 1915(e)(2)(B)(ii); Cruz, 202 F.3d at

597–98.

2. Individual-Capacity Claims

The Court now turns to the Section 1983 claims against Defendants in their individual

capacities.

a. NYPD and HRA Officers Involved in the Alleged December 19,

2019 Incidents

Plaintiff asserts Section 1983 claims for Fourth and Fourteenth Amendment violations

against individual NYPD and HRA officers involved in the alleged incidents on December 19,

2019. (Complaint, Dkt. 2, ¶¶ 39–40.) Based on the factual allegations in the Complaint,

summarized above and construed liberally in Plaintiff’s favor, Plaintiff has stated a plausible claim

at this stage in the proceedings. Therefore, Plaintiff’s Section 1983 claims alleging Fourth and

Fourteenth Amendment violations against HRA Sergeant Knox, HRA Officer Annette Vasquez,

HRA Officer Henna, NYPD Uniformed Officer John Doe of the 84th Precinct, NYPD Uniformed

Officer Jane Doe of the 84th Precinct, NYPD Plainclothes Officer Jane Doe #1, and NYPD

Plainclothes Officer Jane Doe #2 are allowed to proceed.

b. Summit and Summit Officers

Plaintiff also asserts Section 1983 Fourth and Fourteenth Amendment claims against

“Summit Security and its officers.” (Id. ¶ 39.) These claims against Summit and its officers,

however, are deficient as pleaded.

Because Section 1983 is a remedy for deprivations of federal rights committed by persons

“acting under the color of state law,” usually “private citizens and entities are not subject to Section

1983 liability.” Mizrahi v. City of New York, No. 15-CV-6084 (ARR) (LB), 2018 WL 3848917,

at *7 (E.D.N.Y. Aug. 13, 2018) (citations omitted). There are three general circumstances, though,

where “the actions of a nominally private entity are attributable to the state”: (1) when “the entity

acts pursuant to the ‘coercive power’ of the state or is ‘controlled’ by the state”; (2) when “the

state provides ‘significant encouragement’ to the entity, the entity is a ‘willful participant in joint

activity with the state,’ or the entity’s functions are ‘entwined’ with state policies”; and (3) when

“the entity ‘has been delegated a public function by the state[.]’” Sybalski v. Indep. Grp. Home

Living Program, Inc., 546 F.3d 255, 257 (2d Cir. 2008) (alteration omitted) (quoting Brentwood

Acad. v. Tenn. Secondary Sch. Athletic Ass’n, 531 F.3d U.S. 288, 296 (2001)). However, “[a]cts

of private contractors do not become acts of the government by reason of their significant or even

total engagement in performing public contracts.” Chan v. City of New York, 1 F.3d 96, 106 (2d

Cir. 1993) (ellipsis omitted) (quoting Rendell-Baker v. Kohn, 457 U.S. 830, 841 (1982)). In

essence, to meet the state-action requirement, a plaintiff must show that the alleged action of a

private individual or entity is “fairly attributable” to the state. Grogan v. Blooming Grove

Volunteer Ambulance Corps, 768 F.3d 259, 264 (2d Cir. 2014) (quoting Am. Mfrs. Mut. Ins. Co.

v. Sullivan, 526 U.S. 40, 50 (1999)); see also Chan, 1 F.3d at 106 (“Actions by a private party are

deemed state action if ‘there is a sufficiently close nexus between the State and the challenged

action’ that the actions by the private parties ‘may be fairly treated as that of the State itself.’”

(quoting Jackson v. Metro. Edison Co., 419 U.S. 345, 351 (1974))).

“Determining whether a private party qualifies as a state actor is a fact-specific inquiry,

and there is no simple line that can be used to delineate what is, or what is not, state action.”

Mizrahi, 2018 WL 3848917, at *7 (internal citations and quotations omitted); see also Grogan,

768 F.3d at 264 (“[The state-action] determination ‘is a matter of normative judgment’ that does

not lend itself to brightline rules or ‘rigid’ criteria.” (quoting Brentwood Acad., 531 U.S. at 295)).

The Complaint here provides some, but not much, information about Summit and its employees.

The Complaint alleges that Summit is “a privately-owned security company contracted with

Defendant City of New York and [was,] at all times relevant to this complaint, providing Security

Support Services to [] Defendant [HRA] . . . [and] acting under the policies and procedures of the

[HRA].” (Complaint, Dkt. 2, ¶ 17.) Defendants Summit Supervisor John Doe, Summit Officer

John Doe #1, and Summit Officer John Doe #2 were employees of Summit “assigned to security

detail” at the HRA building in Brooklyn and, at all relevant times, allegedly “acting under the

policies and procedures of the [HRA][.]” (Id. ¶¶ 18–20.)

At this juncture, the Court does not engage in the fact-specific inquiry to decide whether

the actions of Summit and its employees qualify as state action because even if they do, Plaintiff

has not stated any plausible Section 1983 claim against Summit or its employees. The only factual

allegation in the Complaint is that, on December 19, 2019, Summit Officer John Doe #1 “became

hostile and engaged an alarm” after Plaintiff refused to show certain documents when asked to do

so. (Id. ¶ 31.) The Complaint also vaguely states in a conclusory manner that the same officer

had “previously created a hostile environment that resulted in [Plaintiff] being barred from all

access to the procedural forum in retaliation for having invoked his constitutional right to petition

for the redress of grievances.” (Id. ¶ 29.) These allegations, without more, do not reasonably give

rise to an inference that Summit Officer John Doe #1 used excessive force or falsely arrested

Plaintiff in violation of the Fourth Amendment, or that he deprived Plaintiff of the right to protest

or petition in violation of the First Amendment. Moreover, the Complaint does not include any

specific factual allegations regarding Summit, Summit Supervisor John Doe, or Summit Officer

John Doe #2.

Accordingly, the claims against Summit, Summit Supervisor John Doe, Summit Officer

John Doe #1, and Summit Officer John Doe #2 are dismissed, but Plaintiff is given leave to amend.

See 28 U.S.C. § 1915(e)(2)(B)(ii); Cruz, 202 F.3d at 597–98.

c. Supervisory Defendants

Plaintiff asserts a Section 1983 claim for First and Fourteenth Amendment violations

against NYPD Commissioner Dermot Shea, HRA Commissioner Steven Banks, Dexterly

Freeman, NYPD Lieutenant Vasquez, HRA Lieutenant Wright, OTDA Director of Hearings

Samuel Spitzberg, and Attorney Nigel Marks. (Complaint, Dkt. 2, ¶¶ 42–43.) Plaintiff also

identifies HRA Sergeant Curcio in the caption and factual allegations of the Complaint (see, e.g.,

id. ¶¶ 8, 35), but does not explicitly assert any specific Section 1983 claim against Curcio. The

Section 1983 claims, if any, against these individuals (collectively, “Supervisory Defendants”) are

deficient as pleaded.

It is well-established “that personal involvement of defendants in alleged constitutional

deprivations is a prerequisite to an award of damages under § 1983.” Farrell v. Burke, 449 F.3d

470, 484 (2d Cir. 2006) (quoting Wright v. Smith, 21 F.3d 496, 501 (2d Cir. 1994)). In other words,

a plaintiff must “allege a tangible connection between the acts of a defendant and the injuries

suffered.” Bass v. Jackson, 790 F.2d 260, 263 (2d Cir. 1986). This tangible connection, or

personal involvement, can be established not only by “direct participation by the supervisor in the

challenged conduct,” but also

(1) failure to take corrective action after learning of a subordinate’s unlawful

conduct, (2) creation of a policy or custom fostering the unlawful conduct, (3) gross

negligence in supervising subordinates who commit unlawful acts, or (4) deliberate

indifference to the rights of others by failing to act on information regarding the

unlawful conduct of subordinates.

Hayut v. State Univ. of N.Y., 352 F.3d 733, 753 (2d Cir. 2003) (citing Johnson v. Newburgh

Enlarged Sch. Dist., 239 F.3d 246, 254 (2d Cir. 2001)). Put plainly, “[a]n individual cannot be

held liable for damages under § 1983 ‘merely because [they] held a high position of authority[.]’”

Back v. Hastings on Hudson Union Free Sch. Dist., 365 F.3d 107, 127 (2d Cir. 2004) (quoting

Black v. Coughlin, 76 F.3d 72, 74 (2d Cir. 1996)).

Here, the extent of the factual allegations against most of the Supervisory Defendants is

that Plaintiff had had “communication” with Dexterly Freeman (the Deputy Commissioner of

Police Operations for the HRA) prior to December 19, 2019, “regarding the acts and continued

acts of his subordinate employees in obstructing or interfering with [P]laintiff during the benefit[s]

process,” and that Plaintiff had “filed numerous grievances and complaints,” which were ignored.

(Complaint, Dkt. 2, ¶¶ 35–36.) These allegations do not give rise to a reasonable inference that

the Supervisory Defendants were personally involved in allegedly retaliatory acts against Plaintiff

in violation of the First Amendment. Cf. Sealey v. Giltner, 116 F.3d 47, 51 (2d Cir. 1997)

(concluding that the Commissioner of the New York State Department of Correctional Services

was not personally involved in an alleged constitutional violation where the plaintiff addressed

two letters to the Commissioner, the first of which the Commissioner forwarded to another official,

and the second of which was simply a request for a status update). Plaintiff does allege that NYPD

Lieutenant Vasquez was on scene at the HRA building in Brooklyn on December 19, 2019, and

“failed to appropriately supervise his subordinate NYPD Police Officers and authorized an

unlawful arrest of [Plaintiff].” (Complaint, Dkt. 2, ¶ 33.) But this allegation does not raise a

plausible inference that NYPD Lieutenant Vasquez was personally involved in a retaliatory arrest

in violation of the First Amendment, and Plaintiff does not name NYPD Lieutenant Vasquez in

his Fourth Amendment claim. (See id. ¶¶ 39–40.)

Accordingly, the Section 1983 claims against NYPD Commissioner Dermot Shea, HRA

Commissioner Steven Banks, Dexterly Freeman, HRA Sergeant Curcio, HRA Lieutenant Wright,

NYPD Lieutenant Vasquez, OTDA Director of Hearings Samuel Spitzberg, and Attorney Nigel

Marks are dismissed. See 28 U.S.C. § 1915(e)(2)(B)(ii); Johnson, 2020 WL 249100, at *3

(dismissing claims against defendant where there were no facts to support an inference of personal

involvement in the alleged constitutional violations); Leibovitz v. City of New York, No. 15-CV-

1722 (KAM), 2015 WL 3971528, at *4 (E.D.N.Y. June 30, 2015) (same). Plaintiff is, however,

given leave to amend his claims against these defendants. See Cruz, 202 F.3d at 597–98.

C. State Constitutional Claims

In addition to federal constitutional claims under Section 1983, Plaintiff asserts claims

under Article I, §§ 11 and 12 of the New York State Constitution. (Complaint, Dkt. 2, ¶¶ 54–58.)

Article I, § 11 is the New York State analogue of the federal Equal Protection Clause and provides

that “[n]o person shall be denied the equal protection of the laws of this state or any subdivision

thereof.” See N.Y. Const., art. I, § 11; Sullivan v. City of New York, No. 17-CV-3779 (KPF), 2018

WL 3368706, at *19 (S.D.N.Y. July 10, 2018) (“Like its federal counterpart, [Article I, § 11]

‘commands that persons similarly situated should be treated alike.’” (quoting Walton v. N.Y. State

Dep’t of Corr., 13 N.Y.3d 475, 492 (N.Y. 2009))). Plaintiff alleges that Defendants’ actions were

“racially motivated” (Complaint, Dkt. 2, ¶ 55), but provides no factual allegations whatsoever that

reasonably give rise to a plausible claim that he was treated differently from similarly situated

individuals based on race or any other protected characteristic. Therefore, any claim under Article

I, § 11 of the New York State Constitution is dismissed, although Plaintiff is given leave to amend.

See 28 U.S.C. § 1915(e)(2)(B)(ii); Cruz, 202 F.3d at 597–98.

Article I, § 12 of the New York State Constitution protects against “unreasonable searches

and seizures.” N.Y. Const., art. 1, § 12. This provision “imposes a duty regulating the conduct of

police officials” and “is consistent with the search and seizure provisions found in the Federal

Constitution.” Brown v. State, 89 N.Y.2d 172, 191 (N.Y. 1996); see also Bancroft v. City of Mount

Vernon, 672 F. Supp. 2d 391, 403–04 (S.D.N.Y. 2009) (concurrently analyzing false arrest,

wrongful imprisonment, and excessive force claims brought under the Fourth Amendment to the

United States Constitution and Article I, § 12 of the New York State Constitution). With respect

to Summit and its employees and the Supervisory Defendants, as discussed above, Plaintiff has

not alleged sufficient facts that would give rise to plausible federal constitutional claims. His

analogous state constitutional claims against these defendants accordingly fail.

Moreover, “New York courts have held that a private right of action for violations of the

state constitution is unavailable if an alternative remedy is available elsewhere[.]” Alwan v. City

of New York, 311 F. Supp. 3d 570, 586 (E.D.N.Y. 2018) (collecting cases); see also Li v. City of

New York, 246 F. Supp. 3d 578, 639 (E.D.N.Y. 2017) (“District courts in this circuit have

consistently held that there is no private right of action under the New York State Constitution

where . . . remedies are available under § 1983.” (alteration, quotation, and citations omitted)).

Thus, even if Plaintiff had alleged plausible Section 1983 claims against Summit, its employees,

and the Supervisory Defendants, Plaintiff does not articulate any reason that a remedy under

§ 1983 would be inadequate, and his analogous state constitutional claims with respect to those

defendants must fail. See Sullivan, 2018 WL 3368706, at *20 (dismissing a claim under Article I,

§ 12 of the New York State Constitution because the plaintiff had a viable remedy under § 1983);

Li, 246 F. Supp. 3d at 639 (same); see also Cooper v. City of New York, No. 17-CV-1517 (NGG)

(RLM), 2019 WL 3642996, at *16–17 (E.D.N.Y. Aug. 5, 2019) (dismissing a state constitutional

claim of false arrest, false imprisonment, and excessive force because the plaintiff had an adequate

alternative remedy under § 1983 as well as under state tort law). Similarly, as discussed above,

the Section 1983 claims against individual NYPD and HRA officers involved in the alleged

incidents on December 19, 2019, shall proceed; therefore, because Plaintiff articulates no reason

that this Section 1983 remedy is inadequate, his claims against the individual NYPD and HRA

officer-defendants under Article I, § 12 of the New York State Constitution fail. See Sullivan,

2018 WL 3368706, at *20; Li, 246 F. Supp. 3d at 639.

It is, however, not necessarily the case that Section 1983 always provides an adequate

alternative remedy to a state constitutional claim. “Indeed, on innumerable occasions [the New

York Court of Appeals] has given [the New York] State Constitution an independent construction,

affording the rights and liberties of the citizens of [New York] even more protection than may be

secured under the United States Constitution.” Sharrock v. Dell Buick-Cadillac, Inc., 45 N.Y.2d

152, 159 (N.Y. 1978) (collecting cases). In particular, as the Second Circuit has recognized, New

York “has developed an independent body of state law in the area of search and seizure.” In re

Nassau Cnty. Strip Search Cases, 639 F. App’x 746, 749 (2d Cir. 2016) (summary order) (quoting

People v. Weaver, 12 N.Y.3d 433, 445 (N.Y. 2009)); see also California v. Greenwood, 486 U.S.

35, 43 (1988) (“Individual States may surely construe their own constitutions as imposing more

stringent constraints on police conduct than does the Federal Constitution.”). Accordingly, to the

extent that Plaintiff articulates a reason that his Section 1983 claims are not an adequate remedy

for the alleged conduct of the individual defendants, he may amend his claims under Article I, § 12

of the New York State Constitution. See Cruz, 202 F.3d at 597–98; cf. Fernandez v. City of New

York, 457 F. Supp. 3d 364, 399 (S.D.N.Y. 2020) (granting summary judgment in the defendants’

favor on a claim under Article I, § 12 because the plaintiffs failed to articulate a theory on which

they “would be entitled to a damage award under Article I, § 12 of the New York State

Constitution, but not under Section 1983”).

Finally, although Plaintiff’s Article I, § 12 claims against the individual Defendants are

dismissed (with leave to amend), that claim against the City of New York may proceed. Whereas

a Section 1983 claim under Monell may not be premised on a theory of respondeat superior, see

Monell, 436 U.S. at 691, a similar claim under Article I, § 12 of the New York State Constitution

may be, see Brown, 89 N.Y.2d at 193–95. Accordingly, several courts have allowed New York

state constitutional claims under a theory of respondeat superior to proceed on the ground that a

Monell claim “is not an adequate alternative remedy.” Alwan, 311 F. Supp. 3d at 587 (collecting

cases); see also Hawthorne by Hawthorne v. County of Putnam, — F. Supp. 3d —, No. 19-CV-

742 (NSR), 2020 WL 5946989, at *15 (S.D.N.Y. Oct. 6, 2020); Sullivan, 2018 WL 3368706, at

*21. The Complaint sufficiently alleges that the NYPD and HRA officers involved in the alleged

incidents on December 19, 2019, were employees of the City and acting within the scope of their

employment. (See Complaint, Dkt. 2, ¶¶ 10–16, 28–34.) Hence, Plaintiff has a plausible claim

against the City under Article I, § 12 of the New York State Constitution based on the alleged

conduct of the NYPD and HRA officers on December 19, 2019, and that claim may proceed.

D. Conspiracy Claim

Plaintiff claims that Summit and its employees “knowingly conspir[ed] with the City of

New York” to deprive him of his constitutional rights. (Complaint, Dkt. 2, ¶ 60.) Such a claim

requires showing: “(1) an agreement between two or more state actors or between a state actor and

a private entity; (2) to act in concert to inflict an unconstitutional injury; and (3) an overt act done

in furtherance of that goal causing damages.” Pangburn v. Culbertson, 200 F.3d 65, 72 (2d Cir.

1999) (citations omitted). “A plaintiff must allege facts that plausibly suggest a meeting of minds

and provide some details of time and place.” Graham v. City of New York, 16-CV-4613 (NGG)

(CLP), 2018 WL 1157818, at *9 (E.D.N.Y. Mar. 2, 2018) (quoting AK Tournament Play, Inc. v.

Town of Wallkill, No. 09-CV-10579 (LAP), 2011 WL 197216, at *3 (S.D.N.Y. Jan. 19, 2011)).

The Complaint provides no such details. Therefore, Plaintiff’s conspiracy claim is dismissed, 28

U.S.C. § 1915(e)(2)(B)(ii), but he is permitted to amend his complaint to add facts and details that

would plausibly suggest a “meeting of minds,” see Graham, 2018 WL 1157818, at *9–10.

E. State Common-Law Malicious-Prosecution and Abuse-of-Process Claims

Plaintiff’s final claim is one of malicious prosecution and abuse of process under New

York common law. In particular, Plaintiff asserts that the City of New York, NYPD and HRA

officers, Summit Supervisor John Doe, Summit Officer John Doe #1, and Summit Officer John

Doe #2, along with other employees of the City, “maliciously commenced proceedings against”

him “to cover up their own misconduct and unwarranted use of force.” (Complaint, Dkt. 2, ¶¶ 63–

64.) “All proceedings were terminated in [P]laintiff’s favor[.]” (Id. ¶ 66.)

To establish a claim of malicious prosecution under New York law, a plaintiff must show:

“(1) the initiation or continuation of a criminal proceeding against [the] plaintiff; (2) termination

of the proceeding in [the] plaintiff’s favor; (3) lack of probable cause for commencing the

proceeding; and (4) actual malice motivating [the] defendant’s actions.” Kanciper v. Lato, 989 F.

Supp. 2d 216, 236 (E.D.N.Y. 2013) (citing Manganiello v. City of New York, 612 F.3d 149, 160–

61 (2d Cir. 2010)). “[I]ndictment by a grand jury creates a presumption of probable cause that

may only be rebutted by evidence that the indictment was procured by ‘fraud, perjury, the

suppression of evidence or other police conduct undertaken in bad faith.’” Savino v. City of New

York, 331 F.3d 63, 72 (2d Cir. 2003) (quoting Colon v. City of New York, 60 N.Y.2d 78, 83 (N.Y.

1983)). Plaintiff asserts that the criminal proceeding commenced against him “was malicious and

without probable cause,” but these are legal conclusions, not factual assertions. (See Complaint,

Dkt. 2, ¶ 65.) Plaintiff’s Complaint provides no facts about the criminal proceeding against him,

much less anything that would reasonably raise an inference that the proceeding was commenced

without probable cause and motivated by malice. Therefore, Plaintiff’s malicious-prosecution

claim fails and is dismissed. 28 U.S.C. § 1915(e)(2)(B)(ii).

Plaintiff’s abuse-of-process claim similarly fails. In essence, an abuse of process is

“misusing or misapplying process justified in itself for an end other than that which it was designed

to accomplish.” Mangino v. Inc. Vill. of Patchogue, 814 F. Supp. 2d 242, 247 (E.D.N.Y. 2011)

(emphasis omitted) (quoting Weiss v. Hunna, 312 F.2d 711, 717 (2d Cir. 1963)). As such, a

plaintiff has an abuse-of-process claim “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 o[r] justification, and (3) in order to obtain a collateral objective that is outside the

legitimate ends of the process.” Savino, 331 F.3d at 76 (quoting Cook v. Sheldon, 41 F.3d 73, 80

(2d Cir. 1994)). “A collateral objective is usually characterized by personal animus, and may

include infliction of economic harm, extortion, blackmail or retribution.” Dash v. Montas, —F.

Supp. 3d—, No. 17-CV-515 (PKC) (RER), 2020 WL 1550708, at *10 (E.D.N.Y. Mar. 31, 2020)

(alterations, internal citations, and quotations omitted). Here, the Complaint provides no factual

allegations that would reasonably give rise to an inference that any criminal proceeding against

Plaintiff had a goal of achieving some collateral objective. Although Plaintiff posits that

Defendants wanted to “cover up their own misconduct” (Complaint, Dkt. 2, ¶ 64), there are no

factual allegations in the Complaint about the criminal proceeding that would allow the Court to

reasonably make such an inference. Cf. Dash, 2020 WL 1550708, at *11 (concluding that an

abuse-of-process claim failed because there was no evidence to substantiate the plaintiff’s

assertion that the defendants’ actions were motivated by racial animus). Accordingly, Plaintiff’s

abuse-of-process claim fails and is dismissed. 28 U.S.C. § 1915(e)(2)(B)(ii). In his amended

complaint, Plaintiff may plead additional facts that would substantiate his malicious-prosecution

and abuse-of-process claims. Cruz, 202 F.3d at 597–98.

CONCLUSION

Plaintiff’s claims against the City of New York Human Resource Administration, City of

New York Police Department, and Office of Temporary and Disability Assistance are dismissed.

28 U.S.C. § 1915(e)(2)(B)(iii). No summons shall issue as to those defendants, and the Clerk of

Court is respectfully directed to update and amend the caption to reflect the dismissal of these

defendants.

Plaintiff is granted 45 days’ leave to file an amended complaint to allege proper claims

against NYPD Commissioner Dermot Shea, Samuel Spitzberg, HRA Commissioner Steven

Banks, Dexterly Freeman, HRA Sergeant Curcio, HRA Lieutenant Wright, NYPD Lieutenant

Vasquez of the 84th Precinct, Summit, Summit Supervisor John Doe, Summit Officer John Doe

#1, Summit Officer John Doe #2, and Attorney Nigel Marks. Cruz, 202 F.3d at 597–98. Should

Plaintiff elect to file an amended complaint, the amended complaint must comply with Rule 8(a)

of the Federal Rules of Civil Procedure. It must also set forth the factual allegations to support his

claims against all named Defendants. Plaintiff must identify each Defendant in both the caption

and the body of the amended complaint, do so consistently, and name as proper defendants those

individuals who have personal involvement in the actions he alleges in the amended complaint.

Plaintiff must also provide the dates and locations for each relevant event.

Plaintiff is advised that an amended complaint does not simply add to the first complaint.

Once an amended complaint is filed, it completely replaces the original. Therefore, Plaintiff must

include in the amended complaint all the necessary information that was contained in the original

complaint, including the claims from the original complaint that the Court has decided may

proceed. The amended complaint must be captioned as an “Amended Complaint” and bear the

same case number as this Order, 20-CV-3665 (PKC) (VMS). If Plaintiff fails to comply with this

Order within the time allowed or fails to cure the deficiencies discussed herein, defendants Dermot

Shea, Samuel Spitzberg, Steven Banks, Dexterly Freeman, HRA Sergeant Curcio, HRA

Lieutenant Wright, NYPD Lieutenant Vasquez, Summit, Summit Supervisor John Doe, Summit

Officer John Doe #1, Summit Officer John Doe #2, and Nigel Marks shall be dismissed from this

action.

Plaintiff’s federal constitutional (i.e., Section 1983) claims alleging violations of the Fourth

and Fourteenth Amendments to the United States Constitution, in the form of false arrest, wrongful

imprisonment, and excessive force, against HRA Sergeant Knox, HRA Officer Annette Vasquez,

HRA Officer Henna, NYPD Uniformed Officer John Doe of the 84th Precinct, NYPD Uniformed

Officer Jane Doe of the 84th Precinct, NYPD Plainclothes Officer Jane Doe #1, and NYPD

Plainclothes Officer Jane Doe #2 shall proceed, as will Plaintiff’s claim against the City of New

York under Article I, § 12 of the New York State Constitution. Plaintiff is permitted to amend the

other claims that have been dismissed against these defendants.

As the true identities of NYPD Uniformed Officer John Doe of the 84th Precinct, NYPD

Uniformed Officer Jane Doe of the 84th Precinct, NYPD Plainclothes Officer Jane Doe #1, and

NYPD Plainclothes Officer Jane Doe #2 are unknown at this time, pursuant to Valentin v. Dinkins,

121 F.3d 72 (2d Cir. 1997) (per curiam), the Court requests that the Corporation Counsel of the

City of New York ascertain the full names of these John and Jane Doe Defendants who were

allegedly involved in the events that occurred on December 19, 2019. The Corporation Counsel

is also requested to provide the addresses where these Defendants can currently be served. The

Corporation Counsel need not undertake to defend or indemnify these individuals at this juncture.

This Order merely provides a means by which Plaintiff may name and properly serve the

defendants as instructed by the Second Circuit in Valentin. The Corporation Counsel is further

requested to produce the information specified regarding the identity of these defendants within

60 days from the entry of this Order. Once this information is provided, Plaintiff’s complaint shall

be deemed amended to reflect the full names of these Defendants and the Court shall direct service

on all remaining Defendants accordingly.

The Clerk of Court is respectfully directed to send a copy of this Order and Plaintiff’s

Complaint to the Corporation Counsel of the City of New York, Special Federal Litigation

Division, and to Plaintiff. No summons shall issue at this time. The action is referred to the

Honorable Vera M. Scanlon, Magistrate Judge, for pretrial supervision. The Court certifies

pursuant to 28 U.S.C. § 1915(a)(3) that any appeal from this Order would not be taken in good

faith, and IFP status is denied for the purpose of any appeal. See Coppedge v. United States, 369

U.S. 438, 444–45 (1962).

SO ORDERED.

/s/ Pamela K. Chen

Pamela K. Chen

United States District Judge

Dated: December 29, 2020

Brooklyn, New York