# Nixon v. The City of New York

> District Court, E.D. New York · September 3, 2021

URL: https://www.frixlaw.com/law-library/cases/10306754

## Case

- **Court:** District Court, E.D. New York
- **Decided:** September 3, 2021
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/10306754

## How later opinions describe it (automated extraction)

- noting that a plaintiff’s official-capacity claims against individual defendants “merge into [the plaintiff’s] claims against the City”
- describing the remedial measures included in the settlement agreement and granting dismissal of the City’s appeal

## Opinion text

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
-------------------------------------------------------x
JACQUELINE NIXON, QIANA NIXON,
JASMINE VARGAS, QUARECE NURSE,
DEJA BLUNT, JAMOL DONEGAN, LEVAL
JEMMOTT, and FRANKLIN MOULTRIE, MEMORANDUM & ORDER
19-CV-7215 (PKC) (LB)
Plaintiffs,

- against -

THE CITY OF NEW YORK, POLICE
COMMISSIONER JAMES O’NEILL, OMAR
BIRCHWOOD, MICHAEL RAIMO, JESSE
LANCE, MICHAEL FONTANA, RYAN
JAFFE, JONATHAN FRITH, JASON
GAMMELLO, MATTHEW BYRNES,
ANTHONY PRISINZANO, XAVIER
GALLOZA, THOMAS TURNER, RONI
JENKINS, JONATHAN SUERO, and
JONATHAN EPPS,

Defendants.
-------------------------------------------------------x
PAMELA K. CHEN, United States District Judge:
In this action under 42 U.S.C. § 1983, Plaintiffs Jacqueline Nixon, Qiana Nixon, Jasmine
Vargas, Quarece Nurse, Deja Blunt, Jamol Donegan, Leval Jemmott, and Franklin Moultrie allege
that their constitutional rights were violated during an incident involving members of the New
York City Police Department (“NYPD”) just after midnight on January 1, 2017. Plaintiffs
originally identified as defendants the City of New York (“the City”), then-Police Commissioner
James O’Neill, Lieutenants Omar Birchwood and Michael Raimo1, Deputy Inspector Jesse Lance,
and unnamed John and Jane Does. Plaintiffs subsequently filed a First Amended Complaint

1 Although Plaintiffs at times refer to Defendant Raimo as “Raino” (see, e.g., Complaint
(“Compl.”), Dkt. 1, ¶¶ 8, 12, 18), it appears that the correct spelling is “Raimo” (see Letter dated
March 31, 2020, Dkt. 19).
(“FAC”) naming 11 NYPD officers (the “FAC Defendants”) in place of the Doe defendants.
Defendants now move to dismiss the claims against the FAC Defendants, as well as the claims
against O’Neill and the City. In response, Plaintiffs move to amend their complaint a second time.
As explained below, Defendants’ motion to dismiss is granted in its entirety, and Plaintiffs’ motion
to amend is granted in part and denied in part.

BACKGROUND
I. Factual Background
The FAC alleges the following facts, which, at this stage of the proceedings, the Court
accepts as true and construes in the light most favorable to Plaintiffs. See Forest Park Pictures v.
Universal Television Network, Inc., 683 F.3d 424, 429 (2d Cir. 2012).
On the evening of December 31, 2016, Plaintiffs were gathered at the apartment of Plaintiff
Jacqueline Nixon, in Brooklyn, for an annual event celebrating the life of a family member who
had been shot and killed by NYPD officers on New Year’s Day 2003. (FAC, Dkt. 12, ¶¶ 8–9.) At
around 12:15 a.m., Defendants Birchwood, Raimo, and Lance (“NYPD Defendants”) knocked on
the door of the apartment and requested permission to enter, saying that they had “heard shots”
and witnessed the purported shooter run into the building. (See id. ¶¶ 11, 13.) Plaintiffs informed

the NYPD Defendants that they “were mistaken,” the people in the apartment were privately
celebrating, and no one had been involved in any shooting. (Id. ¶ 12.) Plaintiffs accordingly
refused to let the NYPD Defendants enter the apartment without a warrant. (Id. ¶¶ 13–14.) This
encounter lasted for over an hour, during which time the NYPD Defendants kept the door open
with their feet and bodies. (Id. ¶ 15.)
Eventually, some of the plaintiffs decided to leave the apartment. (Id. ¶ 16.) When
Plaintiff Jemmott2 peacefully attempted to leave, the NYPD Defendants, along with the FAC
Defendants, dragged Jemmott outside, pushed him against the side of the building, took his
cellphone when he attempted to record the events, frisked and searched him, and ultimately did
not permit him to leave—all while repeatedly “using the ‘N’ word.” (Id. ¶ 17.) Similarly, when

Plaintiff Blunt attempted to leave, the NYPD Defendants and FAC Defendants frisked and
searched Blunt and did not allow Blunt to leave—all the while using the “N” word. (Id. ¶ 18.)
The NYPD Defendants and FAC Defendants then forcibly entered the apartment. (Id.
¶ 19.) Although Plaintiffs demanded that the officers leave the apartment, the NYPD Defendants
and FAC Defendants told Plaintiffs that they were “in trouble” and threatened to report some of
the plaintiffs to the Administration of Children’s Services (“ACS”) because there were minor
children present. (See id. ¶¶ 19–23.) The NYPD and FAC Defendants frisked and searched
Plaintiffs individually, searched the apartment, and “‘[wrote] up’ [P]laintiffs to ACS.” (Id. ¶ 24.)
II. Procedural History
On December 24, 2019, nearly three years after the incident in question, Plaintiffs

commenced this action by filing a complaint against the City, Commissioner O’Neill, the NYPD
Defendants, and unnamed John and Jane Does. (See generally Compl., Dkt. 1.) By letter dated
January 14, 2020, the City requested an additional 60 days to answer the Complaint. (Dkt. 10, at
1.) Plaintiffs consented to an 81-day extension so long as the City produced “all non-privileged
documents and names of John and Jane Does within those 81 days.” (See id.) The Court granted
the extension and ordered the City—as well as O’Neill and the NYPD Defendants—to respond to

2 Although the FAC refers to “Plaintiff Levar,” the Court presumes that the FAC means to
refer to Plaintiff Leval Jemmott, as there is no plaintiff with the last name Levar. (See FAC, Dkt.
12, ¶ 17.)
the Complaint by March 17, 2020. (1/15/2020 Order.) The Court also directed the parties to
exchange their initial disclosures under Federal Rule of Civil Procedure (“Rule”) 26(a)(1) by the
same date. (Id.)
On March 17, 2020, the City, O’Neill, and the NYPD Defendants filed an Answer and
served a disclosure identifying the 11 FAC Defendants. (See Answer, Dkt. 11; see also

Defendants’ Memorandum of Law in Support of the Motion to Dismiss (“Defs.’ Mot.”), Dkt. 34,
at 2.) The next day, Plaintiffs filed the FAC, substituting the previously unnamed defendants with
the FAC Defendants. (See FAC, Dkt. 12.)
On June 2, 2020, Defendants requested a pre-motion conference in anticipation of filing a
Rule 12(b)(6) motion to dismiss the claims against the FAC Defendants as barred by the three-
year statute of limitations.3 (Dkt. 21, at 1–2.) Defendants also indicated that they planned to seek
dismissal of the claims against the City and Defendant O’Neill. (Id. at 2–3.) Plaintiffs filed a
response. (Dkt. 22.) The Court granted the request for a pre-motion conference on June 10, 2020,
and held a pre-motion conference on July 2, 2020. (See 6/10/2020 Order; 7/2/2020 Minute Entry.)

At the pre-motion conference, the Court allowed Plaintiffs until September 3, 2020 to secure
information from the Civilian Complaint Review Board (“CCRB”) regarding their due diligence
in attempting to identify the FAC Defendants before the expiration of the statute of limitations.
(See 7/2/2020 Minute Entry.) The Court also set a briefing schedule for Defendants’ anticipated
motion to dismiss. (Id.)

3 Section 1983 itself “does not provide a specific statute of limitations,” so “courts apply
the statute of limitations for personal injury actions under state law.” Hogan v. Fischer, 738 F.3d
509, 517 (2d Cir. 2013) (citations omitted). “The three-year statute of limitations of New York
CPLR 214(5), which governs general personal injury actions, is applicable to Section 1983 cases
filed in New York.” Phillips v. City of New York, 304 F. Supp. 3d 305, 311 (E.D.N.Y. 2018)
(citing Owens v. Okure, 488 U.S. 235, 251 (1989)); accord Hogan, 738 F.3d at 517.
On September 15, 2020, after the September 3 deadline had passed, Plaintiffs moved to
compel Defendants to produce “the IAB file for the underlying incident,” representing that they
were still awaiting a response from the CCRB. (Dkt. 26.) On October 5, 2020, Defendants served
their Rule 12(b)(6) motion, in accordance with the briefing schedule established at the pre-motion
conference. (Dkt. 29.) On the following day, October 6, 2020, Plaintiffs filed a letter requesting

permission to file a Second Amended Complaint (“SAC”). (Dkt. 30.) In that letter, Plaintiffs
stated that they had received a response from the CCRB. (Id. at 1.) In light of Plaintiffs’ receipt
of a response from the CCRB, the Court denied Plaintiffs’ motion to compel on October 15, 2020.
(10/15/2020 Order.) The Court also ordered Plaintiffs to serve a formal motion to amend that
included the proposed amended complaint, directing that such motion be served at the same time
as Plaintiff’s opposition to the motion to dismiss. (10/15/2020 Scheduling Order.)
On November 19, 2020, following a request for an extension of time that the Court granted
(see Dkt. 32; 10/29/2020 Order), Plaintiffs served their motion to amend (see Dkt. 33). This also
functioned as a response to Defendants’ Rule 12(b)(6) motion to dismiss. (See Dkts. 35, 36; see
also 12/11/2020 Order.)4 Plaintiffs’ proposed SAC omits reference to the FAC Defendants, and

thus, it identifies the same named defendants as the original Complaint, except for substituting
Defendant Raimo with the administrator of his estate.5 (See SAC, Dkt. 36-2; see also Plaintiffs’

4 In accordance with the Court’s order dated 12/11/2020, the Court construes Plaintiffs’
filing at Dkt. 35 as their opposition to Defendants’ motion to dismiss. That document is
substantively the same as Plaintiff’s motion to amend at Dkt. 36—the only difference is that
Dkt. 36 includes a “Notice of Motion” not included in the filing at Dkt. 35. (Compare Dkt. 35,
with Dkt. 36.) The Court herein cites primarily to Dkt. 36.
5 On March 31, 2020, defense counsel filed a letter advising that Defendant Raimo had
passed away and that Defendants were “attempting to ascertain whether a representative ha[d]
been appointed to his estate, and if so, how service should be made on the representative.” (Dkt.
19, at 1.)
Memorandum in Support of Motion to File a Second Amended Complaint (“Pls.’ Mot.”), Dkt. 36-
1, at 4.) The SAC also adds to the claim brought against the City under Monell v. Department of
Social Services, 436 U.S. 658, 690–94 (1978), in an effort to withstand Defendants’ motion to
dismiss. (See Pls.’ Mot., Dkt. 36-1, at 4 (“The allegations in the SAC are the same but the
allegations have been factually beefed up to withstand any motion to dismiss.”). Compare SAC,

Dkt. 36-2, ¶¶ 29–53, with FAC, Dkt. 12, ¶¶ 29–48.)
Defendants do not object to the withdrawal of all claims against the FAC Defendants, nor
do they object to the substitution of Defendant Raimo with the administrator of his estate. (See
Defendants’ Reply in Further Support of Defendants’ Motion to Dismiss and in Opposition to
Plaintiffs’ Motion to Amend (“Defs.’ Reply”), Dkt. 34-6, at 1.) Defendants, however, maintain
that amendment is futile with respect to the Monell claim against the City and the claims against
Defendant O’Neill, who was not personally involved in the alleged incident on January 1, 2017.
(See id.)
DISCUSSION
I. Legal Standards
A. Rule 12(b)(6) Motion to Dismiss

To survive a Rule 12(b)(6) motion to dismiss, “a complaint must contain sufficient factual
matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’” Ashcroft v. Iqbal,
556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). “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 Iqbal, 556 U.S. at 678). Making this determination
is “a context-specific task” that requires the Court “to draw on its judicial experience and common
sense.” Iqbal, 556 U.S. at 679. Although the Court accepts as true all factual allegations contained
in a plaintiff’s complaint, it is “not bound to accept as true a legal conclusion couched as a factual
allegation.” Twombly, 550 U.S. at 555 (quoting Papasan v. Allain, 478 U.S. 265, 286 (1986));
accord Rothstein v. UBS AG, 708 F.3d 82, 94 (2d Cir. 2013).
B. Rule 15(a) Motion to Amend
As discussed, rather than directly opposing Defendants’ Rule 12(b)(6) motion to dismiss,

Plaintiffs move for leave to file the SAC, which they may do “only with the opposing party’s
written consent or the court’s leave.” See Fed. R. Civ. P. 15(a)(2). Rule 15(a) expressly provides
that a court should “freely give leave” to amend “when justice so requires.” Id. Nevertheless, “it
is within the sound discretion of the district court to grant or deny leave to amend.” Green v.
Mattingly, 585 F.3d 97, 104 (2d Cir. 2009) (quoting McCarthy v. Dun & Bradstreet Corp., 482
F.3d 184, 200 (2d Cir. 2007)). “A district court has discretion to deny leave for good reason,
including futility, bad faith, undue delay, or undue prejudice to the opposing party.” McCarthy,
482 F.3d at 200 (citing Foman v. Davis, 371 U.S. 178, 182 (1962)). “Proposed amendments are
futile if they would fail to cure prior deficiencies or to state a claim under Rule 12(b)(6) of the
Federal Rules of Civil Procedure.” Thea v. Kleinhandler, 807 F.3d 492, 496–97 (2d Cir. 2015)

(internal quotation marks omitted) (quoting IBEW Loc. Union No. 58 Pension Tr. Fund & Annuity
Fund v. Royal Bank of Scot. Grp., PLC, 783 F.3d 383, 389 (2d Cir. 2015)).
II. Substitution of Defendant Raimo
Because Defendant Raimo is deceased, the SAC proposes substituting Raimo with
“Administrator of the Estate of Lt. Michael Raimo,” i.e., the person who “is in charge of the estate
of the late defendant Michael Raimo.” (See SAC, Dkt. 36-2, Caption, ¶ 7.) Defendants do not
object in principle to this substitution but note that simply replacing Raimo’s name with the words
“Administrator of the Estate of Lt. Michael Raimo” is “not a proper substitution, as the
representative of [Raimo]’s estate, if there is one, has not been identified or named.” (Defs.’ Reply,
Dkt. 34-6, at 1 & n.1.) Under Federal Rule of Civil Procedure 25, which governs the substitution
of parties, a proper party for substitution is
either (1) a successor of the deceased party—a distributee of an estate if the estate
of the deceased has been distributed at the time the motion for substitution has been
made, or (2) a representative of the deceased party—a person lawfully designated
by state authority to represent the deceased’s estate.
Natale v. Country Ford Ltd., 287 F.R.D. 135, 137 (E.D.N.Y. 2012) (quoting Roe v. City of New
York, 00-CV-9062 (RWS), 2003 WL 22715832, at *2 (S.D.N.Y. Nov. 19, 2003)). New York law
provides that an administrator or executor of a decedent’s estate is a “representative” of the
decedent, and therefore would be a proper party under Rule 25. See id. at 137–38 (collecting
cases).
In a letter to the Court on March 31, 2020, defense counsel represented that “Defendants
[were] attempting to ascertain whether a representative ha[d] been appointed to [Raimo’s] estate,
and if so, how service should be made on the representative.” (Dkt. 19, at 1.) In light of this
representation, within thirty (30) days of this Memorandum & Order, defense counsel shall identify
Raimo’s representative or successor, and Plaintiffs shall update the SAC accordingly.6

6 Although no party raises the issue, the Court notes that under Rule 25, if a motion for
substitution “is not made within 90 days after service of a statement noting the death, the action
by or against the decedent must be dismissed.” Fed. R. Civ. P. 25(a)(1). Despite the mandatory
language of Rule 25(a)(1), “[t]he Court is authorized to extend the time in which to file a motion
for substitution before or after the expiration of the ninety-day period pursuant to Fed. R. Civ. P.
6(b).” Kernisant v. City of New York, 225 F.R.D. 422, 427 (E.D.N.Y. 2005) (citation omitted); see
also Staggers v. Otto Gerdau Co., 359 F.2d 292, 296 (2d Cir. 1966) (“[T]he 90 day period was not
intended to act as a bar to otherwise meritorious actions.”). Notably, in this case, Defendants do
not object to substitution (Defs.’ Reply, Dkt. 34-6, at 1), and the Court does not otherwise find that
Defendants will be prejudiced by such substitution. Nor is there any indication of bad faith on
Plaintiffs’ part. Therefore, even if the 90-day period under Rule 25(a)(1) had expired by the time
Plaintiffs moved to file the SAC, which the Court construes to include a motion for substitution,
the Court finds that there is “excusable neglect” to justify extending the time for substitution in
this case. See Fed. R. Civ. P. 6(b)(1)(B); see also LoSacco v. City of Middletown, 71 F.3d 88, 93
(2d Cir. 1995) (“Excusable neglect under Rule 6(b) is a somewhat elastic concept and . . . may
III. Claims Against Defendant O’Neill
Defendants argue that the claims against Defendant O’Neill must be dismissed, and any
amendment with respect to claims against O’Neill is futile, because O’Neill was not personally
involved in the alleged incident on January 1, 2017. (See Defs.’ Mot., Dkt. 34, at 10–11.)
Although the SAC continues to name O’Neill as a defendant, Plaintiffs do not address this issue

in their motion to amend. (See generally Pls.’ Mot., Dkt. 36-1; SAC, Dkt. 36-2.) In fact, in
responding to Defendants’ request for a pre-motion conference, Plaintiffs conceded that “O’Neill
should not be sued in his individual capacity and his exposure is limited to the City’s Monell
liability.” (Dkt. 22, at 3.) Claims against O’Neill in his individual capacity are therefore
dismissed. Cf. De Sole v. Knoedler Gallery, LLC, 137 F. Supp. 3d 387, 410 (S.D.N.Y. 2015)
(collecting cases, and concluding that dismissal was “appropriate” because a party had “offered no
factual or legal argument in opposition to [an opposing party]’s motion”).
Additionally, any claim against O’Neill in his official capacity is duplicative of Plaintiffs’
Monell claim against the City. See Lore v. City of Syracuse, 670 F.3d 127, 164 (2d Cir. 2012) (“A
claim asserted against an individual in his official capacity . . . is in effect a claim against the

governmental entity itself, rather than a suit against the individual personally, for ‘official-capacity
suits generally represent only another way of pleading an action against an entity of which an
officer is an agent.’” (quoting Monell, 436 U.S. at 691 n.55)); see also Quinones v. City of
Binghamton, 997 F.3d 461, 466 n.2 (2d Cir. 2021) (noting that a plaintiff’s official-capacity claims
against individual defendants “merge into [the plaintiff’s] claims against the City”); Davis v.
Stratton, 360 F. App’x 182, 183 (2d Cir. 2010) (summary order) (observing that a suit against

encompass delays caused by inadvertence, mistake, or carelessness[.]” (internal quotation marks,
citations, and brackets omitted)).
municipal officials in their official capacities “is essentially a suit against the City” and “adds
nothing to the suit” (brackets and citation omitted)). Accordingly, Defendants’ motion to dismiss
all claims against Defendant O’Neill is granted, and Plaintiffs may not amend their complaint with
respect to claims against O’Neill, as amendment would be futile. See Thea, 807 F.3d at 496–97.
IV. Monell Claim Against the City

A municipality like the City is liable under § 1983 “if the deprivation of the plaintiff’s
rights under federal law is caused by a governmental custom, policy, or usage of the municipality.”
Jones v. Town of East Haven, 691 F.3d 72, 80 (2d Cir. 2012) (citations omitted); see also Monell,
436 U.S. at 690–94. Because liability cannot be based simply on a theory of respondeat superior,
“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. Rather, holding a municipality liable under § 1983
requires showing three elements: “(1) an official policy or custom that (2) causes the plaintiff to
be subjected to (3) a denial of a constitutional right.” Lucente v. County of Suffolk, 980 F.3d 284,
297 (2d Cir. 2020); see also Askins v. Doe No. 1, 727 F.3d 248, 253 (2d Cir. 2013) (“Establishing
the liability of the municipality requires a showing that the plaintiff suffered a tort in violation of

federal law committed by the municipal actors and, in addition, that their commission of the tort
resulted from a custom or policy of the municipality.”).
A municipal policy or custom, however, “may be pronounced or tacit and reflected in either
action or inaction.” Lucente, 980 F.3d at 297 (quoting Cash v. County of Erie, 654 F.3d 324, 334
(2d Cir. 2011)). Thus, while municipal liability may be established by showing a violation of
federal law pursuant to an express rule or policy, it may also be established where abuses are
“sufficiently widespread and persistent to support a finding that they constituted a custom, policy,
or usage of which supervisory authorities must have been aware”; or where “a municipal custom,
policy, or usage would be inferred from evidence of deliberate indifference of supervisory officials
to such abuses.” Jones, 691 F.3d at 81 (citation omitted); see also Amnesty Am. v. Town of West
Hartford, 361 F.3d 113, 125 (2d Cir. 2004) (“Where a city’s official policy is constitutional, but
the city causes its employees to apply it unconstitutionally, such that the unconstitutional
application might itself be considered municipal policy, the city may be held liable for its
employees’ unconstitutional acts.”). “In limited circumstances, a local government’s decision not

to train certain employees about their legal duty to avoid violating citizens’ rights may rise to the
level of an official government policy for purposes of § 1983.” Connick v. Thompson, 563 U.S.
51, 61 (2011). Yet, “[t]o satisfy the statute, a municipality’s failure to train its employees in a
relevant respect must amount to ‘deliberate indifference to the rights of persons with whom the
untrained employees come into contact.’” Id. (brackets omitted) (quoting City of Canton v. Harris,
489 U.S. 378, 388 (1989)); see also Amnesty Am., 361 F.3d at 129 (“[A] municipality can be liable
for failing to train its employees where it acts with deliberate indifference in disregarding the risk
that its employees will unconstitutionally apply its policies without more training.”).
“‘Deliberate indifference’ is a stringent standard of fault, requiring proof that a municipal

actor disregarded a known or obvious consequence of [their] action.” Connick, 563 U.S. at 61
(brackets omitted) (quoting Board of Cnty. Comm’rs v. Brown, 520 U.S. 397, 410 (1997)). The
Second Circuit has outlined three requirements for establishing that a municipality’s failure to train
or supervise constitutes deliberate indifference: (1) “the plaintiff must show that a policymaker
knows ‘to a moral certainty’ that her employees will confront a given situation”; (2) “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”; and (3) “the plaintiff must show that the wrong choice by the city employee will
frequently cause the deprivation of a citizen’s constitutional rights.” Jenkins v. City of New York,
478 F.3d 76, 94 (2d Cir. 2007) (quoting Walker v. City of New York, 974 F.2d 293, 297–98 (2d
Cir. 1992)).
Here, Plaintiffs’ allegations do not state a plausible claim of a failure to train by the City
that amounts to deliberate indifference, even considering the “beefed up” allegations in the SAC
(Pl.s’ Mot., Dkt. 36-1, at 4) and viewing them in the light most favorable to Plaintiffs. The SAC

alleges that: (1) “[t]he City through the NYPD is aware that an officer would encounter []
situation[s] where he/she has to apply the law as stated in the Constitution[,] particularly the 4th
amendment rights to be free from unreasonable search and seizure”; (2) in these situations, the
officer “faces a difficult choice to further engage in unconstitutional conduct or simply walk away
from the situation”; (3) “[e]ither of these difficult choices lead[s] to the violation of constitutional
rights and thus caus[es] injuries to individuals like [P]laintiff[s]”; and (4) the City “has failed to
train its employees on the basic principles of the laws on 4th amendment search and seizure.”
(SAC, Dkt. 36-2, ¶¶ 31, 46.) These statements, however, are merely a recitation of the Walker
deliberate-indifference standard couched as, yet devoid of any specific, factual allegations, and

thus do not suffice. See Iqbal, 556 U.S. at 678; Twombly, 550 U.S. at 555; Rothstein, 708 F.3d at
94; cf. Acosta v. City of New York, No. 11-CV-856 (KBF), 2012 WL 1506954, at *11 (S.D.N.Y.
Apr. 26, 2012) (dismissing a failure-to-train Monell claim that merely recited the elements of the
cause of action); Brown v. City of New York, No. 18-CV-3287 (JPO), 2021 WL 1225948, at *2
(S.D.N.Y. March 31, 2021) (dismissing a claim that simply “parrot[ed]” the legal standard without
providing “specific facts or circumstances” (citation omitted)).
The SAC does aver that “[t]he NYPD’s Patrol Guide, which spans thousands of pages
detailing hundreds of police procedures, . . . does not contain a statement or guideline that the
Fourth Amendment prohibits warrantless arrests or seizures without a [sic] probable cause . . . .”
(SAC, Dkt. 36-2, ¶ 34; see also id. ¶ 46i (“City does not have a policy and procedure on the law
of entering a subject premises/private residence without a warrant.”).) But this allegation, even
accepted as true, does not permit any reasonable inference that there has been a failure to train
amounting to deliberate indifference. The Court cannot infer that the NYPD does not train its
officers on how to conduct proper searches and seizures, or that the City is deliberately indifferent,

simply because the NYPD’s Patrol Guide lacks a specific statement on warrantless seizures.
The SAC also refers to several cases involving Fourth Amendment claims against the
NYPD—Floyd v. City of New York, 813 F. Supp. 2d 417 (S.D.N.Y. 2011); Davis v. City of New
York, 959 F. Supp. 2d 324 (S.D.N.Y. 2013); and McClary v. City of New York, No. 12-CV-118
(CBA) (VVP) (E.D.N.Y. filed Jan. 10, 2012). (SAC, Dkt. 36-2, ¶¶ 33-2,7 35–39.) But even if
prior lawsuits can be used to support a claim of deliberate indifference,8 the prior lawsuits
referenced in the SAC are inapposite, as those suits involved materially different facts and
circumstances. The Monell claim in McClary centered around evidence of a lack of training
regarding the proper execution of search warrants, whereas this case involves an alleged

warrantless entry into a residence and non-consensual searches of the premises and its occupants.
(See SAC, Dkt. 36-2, ¶¶ 36, 38–39.) Floyd and Davis—which involved the NYPD’s race-based
practice of stopping, questioning, and frisking pedestrians on the street and around New York City

7 The SAC includes two paragraphs numbered “33.” This citation references the second
such paragraph.
8 “Courts considering Monell claims have assigned different levels of significance to the
filing of prior lawsuits.” Calderon v. City of New York, 138 F. Supp. 3d 593, 611–12 (S.D.N.Y.
2015). While some courts “have suggested that non-adjudicated claims are irrelevant,” id. at 612
(citing Morris v. City of New York, No. 12-CV-3959 (JG), 2013 WL 5781672, at *11 (E.D.N.Y.
Oct. 28, 2013)), other courts “have held that prior complaints are relevant insofar as they may put
a municipality on notice of possible or actual constitutional violations,” id. (citing Edwards v. City
of New York, No. 14-CV-10058 (KBF), 2015 WL 5052637, at *6 n.3 (S.D.N.Y. Aug. 27, 2015)).
Housing Authority buildings—are similarly inapposite to Defendants’ allegedly unlawful attempt
to enter Plaintiff Jacqueline Nixon’s home and issuance of write-ups to ACS in retaliation for
Plaintiffs denying entry. See Floyd, 813 F. Supp. 2d at 422; Davis, 959 F. Supp. 3d at 355.
Moreover, as the SAC admits, Floyd and Davis ended in a settlement agreement in which the City
agreed to adopt certain remedial measures, including changes to training and supervision

surrounding the NYPD’s stop-and-frisk practices—thus undercutting any inference that the
unlawful practices and policies alleged in those cases were continuing at the time of the January
2017 incident alleged here, or that those prior lawsuits put the City on notice of the alleged police
misconduct in this case. (See SAC, Dkt. 36-2, ¶ 33-2); see also Floyd v. City of New York, 770
F.3d 1051, 1061–63 (2d Cir. 2014) (describing the remedial measures included in the settlement
agreement and granting dismissal of the City’s appeal). In short, the cases referenced in the SAC
do not evince a plausible claim that the City consciously disregarded a risk that constitutional
violations of the type alleged here would occur without further training.9 Cf. Connick, 563 U.S. at
63 (“Because those [prior] incidents are not similar to the violation at issue here, they could not

have put [the defendant] on notice that specific training was necessary to avoid this constitutional
violation.”).
Additionally, the SAC does not plausibly allege a causal link between any purported failure
to train by the City and the alleged constitutional violations suffered by Plaintiffs. See generally
Bd. of Cnty. Comm’rs of Bryan Cnty. v. Brown, 520 U.S. 397, 404 (1997) (“[A] plaintiff must

9 The FAC references an additional case not referenced in the SAC—Colon v. City of New
York, No. 09-CV-8 (JBW), 2009 WL 4263362, at *2 (E.D.N.Y. Nov. 25, 2009). (Compare FAC,
Dkt. 12, ¶ 31, with SAC, Dkt. 36-2, ¶¶ 33-2–39.) Colon, however, concerned allegations of
“repeated, widespread falsification by arresting police officers of the [NYPD].” 2009 WL
4263362, at *2. There are no such allegations of falsification here. Therefore, Colon is similarly
inapposite.
show that the municipal action was taken with the requisite degree of culpability and must
demonstrate a direct causal link between the municipal action and the deprivation of federal
rights.” (emphasis added)); Askins, 727 F.3d at 253 (explaining that establishing municipal liability
requires showing not only that “the plaintiff suffered a tort in violation of federal law committed
by the municipal actors” but also that the “commission of the tort resulted from a custom or policy

of the municipality” (citations omitted)). As the Supreme Court has made clear, “[t]hat a particular
officer may be unsatisfactorily trained will not alone suffice to fasten liability on [a] city, for the
officer’s shortcomings may have resulted from factors other than a faulty training program.” City
of Canton, 489 U.S. at 390–91 (citations omitted). Indeed, “[a] training program is not inadequate
merely because a few of its graduates deviate from what they were taught,” Jenkins, 478 F.3d at
95, and thus, the law “unequivocally requires . . . that the factfinder’s inferences of inadequate
training and causation be based on more than the mere fact that the misconduct occurred in the
first place,” Amnesty Am., 361 F.3d at 130 (citations omitted).
Yet, the allegations in the SAC essentially provide nothing more than conclusory

statements that the alleged violations here were the result of a deliberate failure to train. (See SAC,
Dkt. 36-2, ¶ 33-110 (“These deliberate indifference acts by the City through the NYPD and the
existence of policy and custom and practice that leads to violation of constitutional rights of
[P]laintiffs and is [sic] the proximate cause of injuries suffered by [P]laintiff[s] as outlined
throughout this complaint.”), ¶ 46v (“[D]ue to lack of proper training, the individual defendants
and other police officers violated the law.”), ¶ 46viii (“Had the City implemented an adequate
training program then the individual defendants and other police officers would know how to act

10 As noted, the SAC includes two paragraphs numbered “33.” This citation references
the first such paragraph.
when presented with a situation such as the one described herein. The training would include
under what circumstances that police officers can enter a premises, the need for a warrant to search
inside of a premises, [and] the probable cause needed to search individuals.”), ¶ 53 (“The City’s
deliberate indifference was the moving force of the unconstitutional damage complained of
herein.”).) To the extent Plaintiffs rely on their allegation that the NYPD’s Patrol Guide lacks a

specific statement on warrantless seizures, even accepting it as true, that allegation does nothing
to establish a causal link between a purported failure to train and the alleged constitutional
violations in this case. Thus, the SAC’s allegation about the NYPD’s voluminous Patrol Guide by
itself does not constitute sufficient factual matter that nudges Plaintiffs’ claim “across the line from
conceivable to plausible.” See Twombly, 550 U.S. at 570; see also, e.g., Ortiz v. Parkchester N.
Condo., No. 16-CV-9646 (VSB), 2018 WL 2976011, at *9 (S.D.N.Y. June 13, 2018) (dismissing
failure-to-train claim partly because the plaintiff “fail[ed] to allege any facts describing how [the
defendant]’s purported failure to train specifically caused his constitutional deprivation”); Tieman
v. City of Newburgh, No. 2015 WL 1379652, at *23 (S.D.N.Y. Mar. 26, 2015) (collecting cases,

and concluding that the plaintiff failed to allege a plausible failure-to-train claim because the
plaintiff did not plead “any facts suggesting that an alleged training deficiency caused his
constitutional injury”).11

11 There is some question as to whether at the pleading stage a plaintiff must “identify a
specific deficiency in the city’s training program and establish that that deficiency is ‘closely
related to the ultimate injury,’ such that it ‘actually caused’ the constitutional deprivation.” See
Amnesty Am., 361 F.3d at 129 (quoting City of Canton, 489 U.S. at 391). The Second Circuit has
said, prior to Twombly and Iqbal, that “[i]t is unlikely that a plaintiff would have information about
the city’s training programs or about the cause of the misconduct at the pleading stage, and
therefore need only plead that the city’s failure to train caused the constitutional violation.” Id. at
130 n.10; cf. Jenkins, 478 F.3d at 94 (“[A]t the summary judgment stage, plaintiffs must identify
a specific deficiency in the city’s training program and establish that that deficiency is closely
related to the ultimate injury, such that it actually caused the constitutional deprivation.” (emphasis
added) (internal quotation marks and citation omitted)). Following Twombly and Iqbal, however,
Because the allegations in the SAC do not plausibly state a Monell claim against the City,
that claim is dismissed. As Plaintiffs have already had an opportunity to amend their Monell claim,
Plaintiffs may not file an amended complaint with respect to this claim. See Thea, 807 F.3d at
496–97 (“Proposed amendments are futile if they would fail to cure prior deficiencies or to state a
claim under Rule 12(b)(6) of the Federal Rules of Civil Procedure.” (citation omitted)).

CONCLUSION
Defendants’ motion to dismiss is granted in its entirety, and Plaintiffs’ motion to amend is
granted in part and denied in part. The claims against the FAC Defendants, Police Commissioner
O’Neill, and the City are dismissed, and they are terminated as parties to this action. Plaintiffs’
SAC may not include claims against these defendants. Defense counsel shall identify Defendant

there has been some debate among courts in this circuit as to whether the pleading requirements
of a failure-to-train claim have been altered, such that a plaintiff must allege a specific deficiency
in the municipality’s training program. Although now “courts generally require that a plaintiff
provide more than a simple recitation of their theory of liability, even if that theory is based on a
failure to train,” see, e.g., Buari v. City of New York, —F. Supp. 3d—, No. 18-CV-12299 (MKV),
2021 WL 1198371, at *23 (S.D.N.Y. Mar. 30, 2021) (internal quotation marks omitted) (collecting
cases), some courts have disagreed, explaining that “the Twombly/Iqbal standard is ‘context
specific,’ and a plaintiff has ‘no realistic way to learn about a municipality’s training programs
without discovery,’” Jackson v. Nassau County, —F. Supp. 3d.—, No. 18-CV-3007 (JS) (AKT),
2021 WL 3207168, at *19 n.10 (E.D.N.Y. July 28, 2021) (quoting Michael v. County of Nassau,
No. 09-CV-5200 (JS) (AKT), 2010 WL 3237143, at *4 (E.D.N.Y. Aug. 11, 2010)). The Second
Circuit has not spoken decisively on this issue, but it has suggested that “[w]hile it may be true
that § 1983 plaintiffs cannot be expected to know the details of a municipality’s training programs
prior to discovery, this does not relieve them of their obligation under Iqbal to plead a facially
plausible claim.” Simms v. City of New York, 480 F. App’x 627, 631 n.4 (2d Cir. 2012) (summary
order) (internal citation omitted). “There are a number of ways that plaintiffs can plausibly allege
a § 1983 claim for municipal liability premised on a failure to train theory without having detailed
knowledge of a municipality’s training programs,” including “by alleging facts indicating ‘[a]
pattern of similar constitutional violations by untrained [municipal] employees.’” Id. (alterations
in original) (quoting Connick, 563 U.S. at 62). The Court concludes here that even if Plaintiffs
need not specifically identify a deficiency in the City’s training program that caused the alleged
constitutional violations, Plaintiffs have failed to allege sufficient factual matter to state a facially
plausible claim of municipal liability based on a failure to train, for all the reasons stated above.
Raimo’s representative or successor within thirty (30) days of this Order, after which Plaintiffs
shall update the SAC accordingly and may file it.
SO ORDERED.

/s/ Pamela K. Chen
Pamela K. Chen
United States District Judge
Dated: September 3, 2021
Brooklyn, New York

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10306754. Public record. Not legal advice.