Benny v. The City of Long Beach

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF NEW YORK

---------------------------------X

RICKY JOSHUA BENNY,

Plaintiff,

MEMORANDUM AND ORDER

-against-

20-CV-1908 (KAM)

THE CITY OF LONG BEACH, THE LONG

BEACH POLICE DEPARTMENT, POLICE

OFFICER JOSEPH WIEMANN, POLICE

OFFICER ROCCO WALSH and OFFICERS

JOHN DOES 1-10,

Defendants.

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MATSUMOTO, United States District Judge:

On April 24, 2020, Ricky Joshua Benny (“Plaintiff”),

filed a complaint against the City of Long Beach (“City”), the

Long Beach Police Department (“LBPD”), and individual Defendants

Police Officer Joseph Wiemann, Police Officer Rocco Walsh, and

Officers John Does 1-10 (collectively, “Defendants”) pursuant to

42 U.S.C. §§ 1981, 1983, the First, Fourth, Fifth, Sixth, and

Fourteenth Amendments, and New York law. (ECF No. 1, Complaint

(“Compl.”).) Plaintiff alleged claims of racial discrimination,

deprivation of rights, privileges and immunities under the

First, Fourth, Fifth, Sixth, and Fourteenth Amendments, false

arrest, malicious prosecution, fabrication of evidence, failure

to intervene, abuse of process, a pattern and practice of abuse

of force and authority, and excessive use of force. (See id. ¶¶

15, 18, 23, 32, 36, 104.)

1

Before the Court is Defendants’ motion to dismiss the

Complaint for failure to state a claim pursuant to Federal Rule

of Civil Procedure 12(b)(6). For the reasons set forth below,

the Defendants’ motion to dismiss is GRANTED in part and DENIED

in part, with leave to move for summary judgment.

BACKGROUND

I. Factual Background1

Except as noted, the Court presumes the truth of the

following allegations in Plaintiff’s complaint in considering

Defendant’s 12(b)(6) motion to dismiss. On December 8, 2018, at

approximately 3:00 to 3:30 a.m., Plaintiff, a 27-year-old

African-American and Hispanic-American male, alleges an incident

with the individual LBPD officer Defendants occurred outside an

establishment known as Wales and Tales located at 916 W. Beech

Street, Long Beach, New York. (Compl. ¶¶ 19, 20.) The

individual LBPD Defendants, all of whom are white, were

responding to a disturbance nearby at W. Beech Street and

Virginia Avenue. (Id. ¶¶ 21, 24.) The disturbance reportedly

involved “Caucasian persons” who Plaintiff alleges were

confronted by the police while fighting, but who were also

permitted to leave without police charges. (Id. ¶ 22, 23.) As

1 As discussed in greater detail infra, given the representations made in a

second signed declaration by Plaintiff’s counsel (see ECF No. 36, Sept. 13,

2020, Declaration of Frederick Brewington (“Second Brewington Decl.”)), these

facts are drawn solely from the Complaint, and not from any video evidence

submitted to the Court.

2

Plaintiff and his friends, Cedric Coad and Rashawn Weed, also

African-American males, left Wales and Tales to wait for a car

service, Long Beach Police Officers “immediately” approached the

group. (Id. ¶¶ 21, 23.) Specifically, Plaintiff alleges the

officers approached Mr. Coad who “was not engaged in any

unlawful, violent or improper behavior,” and “began to

antagonize him, using abusive and disrespectful language and

then ultimately slammed him to the ground and placed him under

arrest” in the middle of the street on Virginia Avenue. (Id. ¶

23.)

Plaintiff, on the opposite side of the intersection

from Mr. Coad, was told to “‘back up’ onto the sidewalk” by the

officers. (Id. ¶ 24.) Plaintiff abided by the directive and

began to record the officers’ actions on his cellphone and

request their names and badge numbers. (Id. ¶¶ 24, 25.) The

officers did not respond to Plaintiff’s questions, and instead

began to shine flashlights in the direction of Plaintiff’s

recording phone. (Id. at 25.) While on the sidewalk recording

the officers, plaintiff was approached from behind and slammed

onto the concrete. (Id. ¶ 26.) “Not fully clear as to what had

happened and who had assaulted him, Plaintiff then immediately

attempted to get back up from the ground,” and Officers Wiemann

and Walsh grabbed Plaintiff and caused him to strike his face,

head and upper torso against the concrete, rendering him semi-

3

or unconscious. (Id. ¶¶ 26, 27.) Other officers joined

Officers Wiemann and Walsh to handcuff Plaintiff “wrongfully and

abusively” causing Plaintiff “great pain, injury, humiliation

and embarrassment.” (Id. ¶ 29.) “Based on surveillance video

tape, which captured accounts at the scene of the incident at

the time,” Plaintiff was approached and victimized by the

Defendant officers. (Id. ¶ 31.)

Following Plaintiff’s arrest, he was taken to the Long

Beach Police Department precinct. (Id. ¶ 36.) Plaintiff

alleges he repeatedly asked to call his family and requested

medical attention but was denied all requests for seven to nine

hours. (Id.) At this point Plaintiff received “minimal”

medical attention from two paramedics and was released from

custody pending a court appearance in January 2019. (Id. ¶ 36,

37.) Plaintiff was charged with Resisting Arrest, Obstruction

of Governmental Administration and Disorderly Conduct. (Id. ¶

40.) The Long Beach Police officers continued to participate in

Plaintiff’s prosecution for the duration of the charges. (Id. ¶

34.)

Plaintiff was arraigned in Long Beach City Court on

December 10, 2018. (Id. ¶ 49.) Plaintiff pled not guilty to

all charges and maintained his innocence throughout the

litigation. (Id. ¶ 34.) Through his attorneys, Plaintiff

served discovery demands and an omnibus motion for dismissal of

4

all charges and other relief. (Id. ¶¶ 50, 51.) On June 27,

2019, Judge William Miller dismissed all charges finding each

was “legally insufficient.” (Id. ¶ 54.)

Plaintiff alleges that as a result of the Defendant

officers’ use of excessive force, he sustained multiple injuries

including, but not limited to, a concussion, post-concussion

syndrome, a pterygoid plate fracture, TMJ injury, lacerations

and cuts (including on his face), a chipped tooth, as well as

wrist and shoulder injuries described as “a complex tear of the

posterior labrum both horizontal and obliquely, injury to the

adjacent labral capsular junction, a displaced labral flap with

the tear extending to th[e] superior labrum where there is a

small nondisplaced labral flap, an additional tear along the

anterior inferior chondral labral junction and a small region of

chondral delamination of the posterior glenoid adjacent to the

labral tear of approximately 3mm.” (Id. ¶ 38.) Plaintiff

required at least two surgeries to address his physical

injuries. (Id.)

In addition to his physical injuries and pain,

Plaintiff alleges he suffered “embarrassment, mental pain and

suffering, incarceration, damage to his name and reputation,

court fees, legal fees and costs, medical costs/fees, property

damage and other monetary damages including but not limited to

loss of employment and income” due to the officers present at

5

his arrest and the related, ensuing incidents. (Id. ¶ 38.) At

the time of filing his Complaint, Plaintiff alleges he continued

to suffer from sleeplessness, night terrors, physical

disfigurement, scarring, abnormalities in movement, pain, and

aching attributed to Defendants’ actions and inactions. (Id. at

58.)

II. Procedural Background

Plaintiff commenced this action through his attorney

on April 24, 2020, and filed proof of service. (See generally,

ECF No. 1, Compl.; ECF Nos. 8, 10.) On July 10, 2020,

Defendants’ counsel filed a letter with the Court seeking a pre-

motion conference to file a motion to dismiss pursuant to

Federal Rule of Civil Procedure 12(b)(6) and the Court’s

individual practice rules. (ECF No. 13, Defs. Letter.) The

Defense letter states that “the incident that forms the basis of

the Complaint was captured on video” and that “the video

recording of the incident, which is an integral part of the

Complaint, may be considered by the Court on a Rule 12(b)(6)

motion.” (Id.) Plaintiff filed a letter in response on July

22, 2020, noting that no discovery had been conducted in the

case, that Defendants’ application should be denied, and that

Defendants should be precluded from moving to dismiss. (ECF No.

14, Pl. Letter, July 22, 2020.) Plaintiff did not dispute or

6

otherwise address the video evidence mentioned in Defendants’

pre-motion conference letter.

The Court granted Defendants’ request for a pre-motion

conference, held telephonically on August 4, 2020. (See Dkt.

Orders July 16, 2020, July 24, 2020.) At the pre-motion

conference, the parties discussed Defendants’ anticipated motion

to dismiss, and “[c]ounsel for Defendants agreed to promptly

provide counsel for Plaintiff with a copy of the video

referenced in Defendants’ letter requesting a pre-motion

conference.”2 (Min. Entry, August 4, 2020.) Defendants’ counsel

reported by letter dated August 6, 2020, that “[a]fter the

conference, [he] sent Plaintiff’s counsel a copy of the video

recording we propose submitting to the Court” and requested an

extension for the date by which the parties would file their

“joint letter to the Court with the agreed upon video

recording.” (ECF No. 16, Defs. Letter, Aug. 6, 2020.) In a

follow up letter dated August 21, 2020, the parties requested an

extension of time to submit their joint letter to the Court

“with the agreed upon video recording(s).” (ECF No. 18, Joint

Letter, Aug. 21, 2020.) Subsequently, Defendants’ counsel, on

behalf of the parties, submitted a joint letter, dated August

2 The Court notes that although a transcript was prepared for the August 4,

2020, pre-motion conference, there are substantial gaps in that transcript

due to telephonic connectivity issues attributed to Tropical Storm Isaias,

and as a result, the record available from the transcript is limited.

7

26, 2020, representing that counsel had conferred regarding the

videos of the incident and a proposed briefing schedule for

Defendants’ motion to dismiss, and attaching “three videos

referenced in the Complaint.” (ECF No. 19, Joint Letter, Aug.

27, 2020.) The Court accepted the parties’ joint

representations, as Plaintiff’s counsel did not dispute any

statements in the August 26, 2020, letter. On August 28, 2020,

the Court issued a scheduling order adopting the parties’

proposed briefing schedule regarding the Defendants’ 12(b)(6)

motion, and noting that, “[t]he Court is in receipt of three

videos of the incident giving rise to this action[...] as

ordered by the Court during the August 4, 2020 pre-motion

conference.” (Scheduling Dkt. Order, Aug. 28, 2020.) The Court

further stated that, “[t]he Court expects that in their briefs,

the parties will address their respective views as to whether

the Court can consider the aforementioned videos at this stage.”

(Id.)

On September 4, 2020, Defendants served a Motion to

Dismiss pursuant to Rule 12(b)(6) on Plaintiff. Defendants move

to dismiss on the following bases: (1) the Long Beach Police

Department is not a proper defendant, (2) Plaintiff’s Section

1981 claim is subsumed by his Section 1983 claims, (3) the

Complaint fails to adequately plead a Monell claim, (4) the

Complaint fails to state a claim for excessive force and failure

8

to intervene, (5) the Complaint fails to state claims for false

arrest, malicious prosecution, and abuse of process claims, (6)

the race discrimination claim should be dismissed for failure to

state a claim, (7) the Complaint fails to state a claim under

the First Amendment, and (8) Plaintiff’s requests for punitive

damages against the city must be stricken. (ECF No. 24, Mem. of

Law in Support of Defendants’ Mot. to Dismiss the Compl. (“Defs.

Mem.”).) In Defendants’ moving submission, Defendants’ counsel,

Howard M. Miller, filed an affidavit to which he annexed three

video Exhibits and represented as follows: Exhibit A is “a copy

of a video recording that was provided to me by Plaintiff’s

counsel that is reference in paragraph ‘31’ of the Complaint,”

and that Exhibits B and C are “two additional videos provided to

me by the Corporation Counsel of the City of Long Beach that

show the incident recorded in Exhibit ‘A’ from slightly

different angles”. (ECF No. 23, Affidavit of Howard Miller,

Esq. (“Miller Aff.”) ¶¶ 2, 3.)

Plaintiff filed a memorandum in opposition on October

19, 2020, along with a declaration from Plaintiff’s counsel, Mr.

Brewington. (See ECF No. 25, Decl. of Frederick K. Brewington,

Esq. (“Brewington Decl.”); see also ECF No. 26, Pl. Mem. in

Opp’n. (“Pl. Opp’n.”).) Mr. Brewington’s declaration states

that Plaintiff agreed: (1) the Long Beach Police Department was

not a proper defendant, (2) that all Plaintiff’s Section 1981

9

claims were subsumed by his section 1983 claims, and (3)

punitive damages are unavailable against the City.3 (ECF No. 25,

Brewington Decl. ¶ 8.) Mr. Brewington also declared that the

“surveillance video” of the incident referenced in Plaintiff’s

Complaint, which was not provided to the Court, “was video that

was identified during the early part of my representation of Mr.

Benny during his criminal prosecution. My memory is that it was

not the video later provided to our office by our client and was

not the full video taken from the scene by my client or any of

his friends.” (Id. ¶ 3.) Mr. Brewington further declared that

“Exhibit A (labeled in our fileVideo-1.mov) to the declaration

of Herman Miller is video that I obtained from my client and

provided to defendants’ counsel at the direction of the Court,

after [Defendants] claimed they had video evidence, and the

Court suggested I provide it to them.” (Brewington Decl. ¶ 4.)

Defendants filed a reply memorandum in further support

of their motion to dismiss. (ECF No. 27, Defs. Reply Mem. of

Law.) The fully briefed motion to dismiss, declaration,

opposition, reply, and related exhibits were filed on October

30, 2020. (See ECF Nos. 22-27.)

3 The Court notes Plaintiff did not defend against, and instead concedes,

Defendants’ arguments regarding his claims against the LBPD, claims pursuant

to § 1981, and any claim for punitive damages against the City, and thus the

Court considers those claims to be abandoned and dismisses them. See e.g.,

Jennings v. Hunt Companies, 367 F. Supp. 3d 66, 69 (S.D.N.Y. 2019)

(dismissing claims where plaintiff acknowledged the issues could not survive

and mounted no defense of them).

10

Plaintiff’s counsel filed a letter on July 28, 2021,

regarding the status of the motion to dismiss, and inquiring as

to whether the Court required anything further from the parties.

(See ECF No. 34, Pl. Status Letter.) In response, after further

reviewing the parties’ submissions, the Court issued an Order on

September 10, 2021 (see Dkt. Order, Sept. 10, 2021), noting that

Plaintiff’s counsel had failed to adequately respond to the

Court’s August 28, 2020 Order, directing the parties to address

in their motion papers “whether the Court can consider the

aforementioned videos” (referenced as the “three videos

referenced in the Complaint” in the parties’ joint letter dated

August 26, 2020 (see ECF No. 19, Joint Letter, Aug. 27, 2020.))

at the motion to dismiss stage. (See id.) In particular, the

Court noted that, in his opposition to Defendants’ motion to

dismiss, Plaintiff’s counsel filed a signed declaration that

only contradicted and confused the record as to the parties’

August 26, 2020, letter and the Court’s August 28, 2020 Order,

and failed to definitively clarify whether Plaintiff had relied

on any of the videos submitted as Exhibits A-C to the

Declaration of Howard Miller in the drafting of his Complaint.

(See id.) The Court ordered Plaintiff’s counsel to: (1) to

provide a signed declaration stating whether Plaintiff relied on

the videos at Exhibits A, B, or C, in the drafting of his

Complaint; (2) to provide the surveillance video referenced at ¶

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31 of the Complaint to the Court and Defense counsel; and (3) to

state whether Plaintiff relied on any other videos in the

drafting of his Complaint, and provide copies of the videos, if

any. (See id.)

Plaintiff’s counsel, Mr. Frederick Brewington, filed a

sworn declaration in response to the Court’s September 10, 2021,

Order, which, for the first time, represented that Plaintiff’s

counsel did not rely on “the videos attached as Exhibits A-C to

the Declaration of [Howard] Miller, dated September 4, 2020.”

(Second Brewington Decl. at ¶ 2.) Regarding the “surveillance

video” directly referenced in the Complaint, the Second

Brewington declaration stated:

When Mr. Benny and his family first

consulted with us to undertake his

representation in the criminal charges

underlying this case, my office tried to

locate the video evidence. It is my memory

that I viewed a video that appeared to show

a part of the interaction between Mr. Benny

and the police. I cannot recall the source

of the images shown to me, but my best

memory is that I thought it looked like

surveillance footage. That is my best

recollection. However, that was not in our

possession and/or control and is not in our

possession. It was from my memory of that

footage that I worked on and drafted the

Complaint, not any other footage, which we

eventually obtained from our client.

(Id. at ¶ 3.) The Second Brewington declaration further

represents that Mr. Brewington “asked Mr. Benny if he recalls

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the video. He does not. I am at a loss to the source of the

video or who showed it to me. I do recall that I viewed [the

video] for a very brief time[.]” (Id. at ¶ 4.) Finally, Mr.

Brewington states that he “did not rely upon any videos other

than the one that I remember seeing early on in our taking on

the representation of Mr. Benny[.]” (Id. at ¶ 7.)

Given Plaintiff’s agreement that certain of his claims

are not viable, the Court considers those claims withdrawn, and

accordingly 1) dismisses the Long Beach Police Department as a

defendant, 2) dismisses Plaintiff’s Section 1981 claims, and 3)

to the extent Plaintiff seeks punitive damages against the City

of Long Beach, the requested relief is stricken. (ECF No. 24,

Mem. of Law in Support of Defendants’ Mot. to Dismiss the Compl.

(“Defs. Mem.”).) The Court considers only Plaintiff’s remaining

claims.

LEGAL STANDARD

I. Rule 12(b)(6)

To survive a motion to dismiss under Rule 12(b)(6), “a

complaint must plead ‘enough facts to state a claim to relief

that is plausible on its face.’” Ruotolo v. City of New York,

514 F.3d 184, 188 (2d Cir. 2008) (quoting Bell Atl. Corp. v.

Twombly, 550 U.S. 544, 570 (2007)). A claim is plausible on its

face when plaintiff pleads sufficient factual content to

“allow[] the court to draw the reasonable inference that the

13

defendant is liable for the misconduct alleged.” Ashcroft v.

Iqbal, 556 U.S. 662, 678 (2009) (citing Twombly, 550 U.S. at

556).

When considering a Rule 12(b)(6) motion to dismiss, a

district court must “accept as true all factual statements

alleged in the complaint and draw all reasonable inferences in

favor of the non-moving party.” McCarthy v. Dun & Bradstreet

Corp., 482 F.3d 184, 191 (2d Cir. 2007) (citation omitted).

Generally, the scope of review on a Rule 12(b)(6) motion is

limited to the complaint and if a court is presented any

“matters outside the pleadings,” it must exclude the extrinsic

material or treat the motion as one for summary judgment. Fed.

R. Civ. P. 12(d); see Cortec Indus. v. Sum Holding L.P., 949

F.2d 42, 47 (2d Cir. 1991). There are several exceptions,

however, including “documents incorporated in [the complaint] by

reference” and documents which are “integral to plaintiff[’s]

claim.” Cortec, 949 F.2d at 47-48; Massey v. On-Site Manager,

Inc., No. 11-cv-2612 (BMC), 2011 WL 4356380 (E.D.N.Y. Sept. 16,

2011) (quoting Halebian v. Berv, 644 F.3d 122, 131 n.7 (2d Cir.

2011); see also ATSI Commc’ns, Inc. v. Shaar Fund, Ltd., 493

F.3d 87, 98 (2d Cir. 2007) (“[w]e may consider any written

instrument attached to the complaint, statements or documents

incorporated into the complaint by reference.”).

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II. Converting to Motion for Summary Judgment

District courts have two options when confronting

extraneous documents on a motion to dismiss: “the court may

exclude the additional material and decide the motion on the

complaint alone or it may convert the motion to one for summary

judgment under Fed. R. Civ. P. 56 and afford all parties the

opportunity to present supporting material.” Thomas v. City of

New York, No. 17-cv-06079 (ARR)(JO), 2018 WL 5791965, at *5

(E.D.N.Y. Nov. 5, 2018) (quoting Fonte v. Bd. of Managers of

Continental Towers Condominium, 848 F.2d 24, 25 (2d Cir. 1988).

“The ultimate decision of whether to convert a Rule 12(b)(6)

motion into a Rule 56 motion is discretionary.” Id. (quoting

Fernandez v. Windmill Distrib. Co., 159 F. Supp. 3d 351, 357

(S.D.N.Y. 2016)); see also Energizer, LLC v. MTA Trading, Inc.,

No. 20-cv-1583 (MKB), 2021 WL 2453394, at *3, n. 6 (E.D.N.Y.

June 16, 2021) (quoting Steadfast Ins. Co. v. T.F. Nugent Inc.,

No. 20-cv-3959, 2021 WL 149084, at *2 n.2 (S.D.N.Y. Jan. 15,

2021) (“Federal courts have complete discretion to determine

whether or not to accept the submission of any material beyond

the pleadings offered in conjunction with a ... motion [to

dismiss], and thus complete discretion in determining whether to

convert the motion to one for summary judgment.” (alterations in

original) (internal citation omitted)).

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DISCUSSION

I. Municipal Liability, Monell Claim (Fifth Cause of

Action)4

Plaintiff’s Fifth Cause of Action alleges municipal

liability against the City of Long Beach pursuant to 42 U.S.C. §

1983 (“Section 1983”). Defendants move to dismiss Plaintiff’s

claims against the City. (See Defs. Mem. at 7-9.) Discerning

any factual bases for Plaintiff’s vague and conclusory claims is

no small feat; for his fifth cause of action, Plaintiff makes a

series of allegations against the City, including that the City

“permitted and tolerated a pattern and practice of unjustified,

unreasonable and illegal uses of force, abuse of authority,

beatings, and uses of weapons” (Compl. ¶ 131), “failed to

identify [various abuses] . . . to the extent that it has become

the custom of the CITY to tolerate the improper abuses” (id. ¶

135), “permitted a practice of improper investigation,

supervision, discipline and retention” (id. ¶ 136), and

“neglected, failed and/or delayed in administering an

investigation of the circumstances[.]” (Id.) Plaintiff also

alleges that incidents of “beatings, abuse of authority, illegal

use of force, and uses of weapons” were “covered up with

official claims that the beatings, use of force, and uses of

4 Plaintiff’s claims regarding municipal liability are not based on the video

evidence in this case, and the Court will evaluate these claims under Rule

12(b)(6) on the face of the Complaint.

16

weapons were justified and proper,” and that the City has failed

to maintain a proper system of investigation of these

incidents.” (Id. ¶¶ 132-33.) To sustain a claim for relief

under Section 1983 against a municipal defendant, “a plaintiff

must show the existence of an officially adopted policy or

custom, and a direct causal connection between that policy or

custom and the deprivation of a constitutional right.” Duncan

v. City of New York, No. 11-cv-3826(CBA)(JO), 2012 WL 1672929,

at *2 (E.D.N.Y. May 14, 2012) (citing Bd. of County Comm’rs v.

Brown, 520 U.S. 397, 403, 117 S.Ct. 1382, 137 L.Ed.2d 626

(1997)). Plaintiff’s allegations, even if accepted as true,

fail to state a claim for municipal liability under Section 1983

and, consequently, this claim is dismissed.

Plaintiff alleges a series of broad and conclusory

statements devoid of supporting facts in his claim for municipal

liability. (See ¶¶ 131-137.) Plaintiff alleges generally that

the City “permit[ed] a pattern and practice,” that the City “has

failed to respond to the continuing and urgent need to prevent,

restrain, and discipline police officers,” and that the City

“has failed to find that civilian complaints made against police

officers are founded or valid in anyway[.]” (Id. at ¶ 134.)

Plaintiff further alleges—“upon information and belief”—certain

flaws in the City’s brutality review process, none of which rise

above a speculative level. (Id. at ¶ 137a.-e.); see also

17

Operating Local 649 Annuity Trust Fund v. Smith Barney Fund

Mgmt. LLC, 595 F.3d 86, 91 (2d Cir. 2010)(quoting Twombly, 550

U.S. at 555)(a complaint must set forth “a plausible set of

facts sufficient ‘to raise a right to relief above the

speculative level.’”). The most specific, yet insufficient and

conclusory, allegations Plaintiff makes are that the alleged

“pattern and practice of unjustified, unreasonable and illegal

uses of force,” are “especially true in certain portions of the

City, especially in the community commonly known as North Park,”

where Plaintiff states “[t]he vast majority of persons residing

in North Park are Black African-Americans or Hispanic persons.”

(ECF No. 1, Compl. at ¶ 132.) Again, Plaintiff does not support

his allegations with any specific facts, instances, statistics,

or other factual allegations connecting the alleged policy or

custom and the alleged deprivation of Plaintiff’s rights.

To the extent plaintiff alleges failure to discipline

officers for complaints of excessive force (see e.g., Compl. at

¶¶ 131, 132, 134, 135, 136), the Second Circuit has held “a

municipal policy of deliberate indifference to the use of

excessive force by police officers may be shown by evidence that

the municipality had notice of complaints of the use of such

force but repeatedly failed to make any meaningful investigation

into such charges.” Outlaw v. City of Hartford, 884 F.3d 351,

380 (2d Cir. 2018). Plaintiff alleges no other specific

18

instances in which individuals filed complaints against the

officers and the City failed meaningfully to respond, beyond his

conclusory allegations that “the CITY has failed to find that

civilian complaints made against police officers are founded or

valid in anyway.” (Compl. ¶ 134.) Thus, the Court concludes

that Plaintiff failed sufficiently to allege that there was a

policy, pattern or repeated failure to discipline police

officers by the City. See Scott v. City of Rochester, No. 17-

cv-6359 (FPG), 2018 WL 4681626, at *5 (W.D.N.Y. Sept. 28, 2018)

(declining to find a pattern of failure to discipline where

plaintiff alleged three instances of failures to investigate

complaints).

To the extent Plaintiff alleges a policy or custom of

tolerating improper police actions (see Compl. ¶¶ 134, 135),

Plaintiff’s allegations cannot withstand a Rule 12(b)(6) motion

to dismiss. “Monell's policy or custom requirement is satisfied

where a local government is faced with a pattern of misconduct

and does nothing, compelling the conclusion that the local

government has acquiesced in or tacitly authorized its

subordinates’ unlawful actions.” See Green v. City of Mount

Vernon, 96 F. Supp. 3d 263, 305–06 (S.D.N.Y. 2015) (quoting

Reynolds v. Giuliani, 506 F.3d 183, 192 (2d Cir.2007) (citing

Jett v. Dallas Indep. Sch. Dist., 491 U.S. at 737 (1989).

19

Plaintiff’s conclusory allegations, including that “[t]he

foregoing acts, omissions, systemic flaws, policies and customs

of the Defendants CITY and LBPD caused the Defendant Officers to

believe that brutality and other improper actions would not be

aggressively, honestly and properly investigated,” and “[a]s a

consequence of Defendants’ wrongful actions . . . Plaintiff was

deprived of his freedom[,]” (Compl. ¶¶ 138-39) are insufficient

to allege “an affirmative link between the municipality’s policy

and the particular constitutional violation alleged.” City of

Oklahoma City v. Tuttle, 471 U.S. 808, 809 (1985).

Even accepting as true all factual allegations from

the Complaint and drawing all reasonable inferences in favor of

Plaintiff, the Court finds that Plaintiff cannot sustain a

Section 1983 claim for municipal liability against the City.

Therefore, Plaintiff’s municipal liability claims against the

City must be, and are, dismissed.

II. Videos, Materials Outside the Pleading at Rule

12(b)(6) Motion to Dismiss

On August 26, 2020, the parties jointly filed three

videos of the incident alleged in the Complaint (hereafter, “the

Videos,” “Video Exhibits A, B, C,” or “Video Exhibits A-C”) as

part of a joint letter submission, which Defendants argue should

be considered by the Court at the motion to dismiss stage, and

which Plaintiff argues should not be considered by the Court.

20

(See ECF No. 19, Joint Letter; ECF No. 23, Miller Aff., at ¶ 4;

ECF No. 25, Brewington Decl., at ¶¶ 2-5.) In opposition to the

Defendants’ motion to dismiss, Plaintiff’s counsel provided a

second signed declaration at the direction of the Court, in

which Plaintiff’s counsel declared that he did not rely on the

Videos in drafting the Complaint. (See Second Brewington Decl.

¶ 2.) Plaintiff’s counsel vaguely describes yet a fourth video

that he viewed once during Plaintiff’s criminal case, claims not

to have retained, and has continued to withhold from the Court.

(Id. at ¶ 3.) Plaintiff’s counsel claims he relied on this

fourth video from memory in drafting the Complaint. (Id.)

Plaintiff’s counsel represents that Plaintiff himself does not

recall this video. (Id. at ¶ 4.) The Court is very troubled by

Plaintiff’s counsel’s sworn statements and conduct.

As a motion to dismiss under Rule 12(b)(6) tests the

sufficiency of the factual allegations in a complaint, “the

district court is normally required to look only to the

allegations on the face of the complaint.” Roth v. Jennings,

489 F.3d 499, 509 (2d Cir. 2007). The Court may consider

“documents attached to the complaint as an exhibit or

incorporated in it by reference, to matters of which judicial

notice may be taken, or to documents either in plaintiffs’

possession or of which plaintiffs had knowledge and relied on in

bringing suit.” Brass v. Am. Film Techs., Inc., 987 F.2d 142,

21

150 (2d Cir. 1993) (internal citations omitted). Even if a

document is not incorporated by reference, “the court may

nevertheless consider it where the complaint ‘relies heavily

upon its terms and effect,’ which renders the document

‘integral’ to the complaint.” Chambers v. Time Warner, Inc.,

282 F.3d 147, 153 (2d Cir. 2002) (citing Int'l Audiotext Network

v. Am. Tel. & Tel. Co., 62 F.3d 69, 72 (2d Cir. 1995)). The

Second Circuit noted that this standard is occasionally

misinterpreted, and clarified that “a plaintiff’s reliance on

the terms and effect of a document in drafting the complaint is

a necessary prerequisite to the court’s consideration of the

document on a dismissal motion; mere notice or possession is not

enough.” Id. (emphasis in original) (citing Cortec, 949 F.2d at

47-48).

“[C]ourts have considered video evidence in

conjunction with 12(b)(6) motions where the tape has either

been: (1) incorporated into the pleadings by reference; (2)

offered by the plaintiff as part of its pleadings; or (3) the

plaintiff has incorporated the video by reference after the

defendant introduced the video.” Mosca v. City of New York, No.

17-cv-4327 (SJF)(SIL), 2018 WL 3151704, at *3 n.3 (E.D.N.Y. Apr.

24, 2018), report and recommendation adopted, No. 17-cv-4327

(SJF)(SIL), 2018 WL 2277837 (E.D.N.Y. May 18, 2018). Here, the

Videos were not offered by Plaintiff as part of his Complaint as

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exhibits, nor did Plaintiff incorporate the Videos after

Defendants introduced them. (See generally, Compl.; Pl. Opp’n.

at p. 6.) The Court considers, then, whether the Videos

currently at issue were incorporated into the pleadings by

reference. Defendants argue that the reference made to

“surveillance video tape” at paragraph 31 of the Complaint means

the Videos were incorporated by reference, and accordingly, the

Court may consider the Videos on the Rule 12(b)(6) motion.

(Defs. Mem. at p. 1, n. 2.) Defendants further argue that the

Videos are “otherwise integral to the complaint.” (Id., at p.

6.)

Here, in connection with the Rule 12(b)(6) inquiry,

Plaintiff’s Complaint at paragraph 31 references video tape

footage as follows:

Based on surveillance video tape, which

captured accounts at the scene of the

incident at the time, Plaintiff was

approached by the above-stated DEFENDANT

OFFICERS as stated above and was victimized

by POLICE OFFICER JOSEPH WIEMANN, POLICE

OFFICER ROCCO WALSH and OFFICERS JOHN DOES

1-10[.]

(Compl. at ¶ 31.)

In Defendants’ July 10, 2020, letter to the Court

requesting a pre-motion conference, Defendants stated: “The

video recording of the incident, which is an integral part of

the Complaint, may be considered by the Court on a Rule 12(b)(6)

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motion.” (ECF No. 13, Defs. July 10, 2020, Letter, at p. 1.)

Defendants’ letter further describes what the “video recording

of the incident shows[.]” (Id. at p. 2.) Plaintiff filed a

response letter in opposition to Defendants’ request for a pre-

motion conference, but did not deny, much less respond to,

Defendants’ assertions or characterizations regarding the video

recording of the incident that was described at paragraph 31 of

the Complaint. (ECF No. 14, Pl. July 22, 2020, Reply Letter.)

The Court’s Minute Entry describing the August 4,

2020, pre-motion conference states: “Counsel for Defendants

agreed to promptly provide counsel for Plaintiff with a copy of

the video referenced in [ECF No.] 13 Defendants’ letter

requesting a pre-motion conference.” (Min. Entry, Aug. 4,

2020.) Following the August 4, 2020, pre-motion conference held

before the Court, the parties jointly submitted the three Videos

as attachments to a joint letter, which stated in relevant part:

that the parties had conferred, and that “[t]his letter is

submitted by the parties regarding the Defendants’ request to

file a Rule 12(b)(6) motion.[...] Attached are three videos

referenced in the Complaint.” (See ECF No. 19, Joint Letter, at

p. 1.)

Plaintiff’s counsel, Mr. Brewington, never disputed

the August 26, 2020, joint letter describing the three videos as

being “referenced in the Complaint.” Instead, he asserts in his

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first declaration, filed in opposition to Defendant’s motion to

dismiss, that the reference to the “surveillance video tape” is

an “isolated statement” in the Complaint, he attempts to explain

the relationship between the three Videos, the video described

at paragraph 31 of the Complaint, and the Complaint as follows:

The video that we referenced in paragraph 31

of the Complaint was video that was

identified during the early part of my

representation of Mr. Benny during his

criminal prosecution. My memory is that it

was not the video later provided to our

office by our client and was not the full

video taken from the scene by my client or

any of his friends. In fact, it was based on

what was initially viewed by me that our

office sent out letters to nearby

establishments for them to preserve their

video images. Mr. Benny demonstrates in the

accompanying memorandum of law that this

reference does not mean he incorporated the

video into the Complaint.

Exhibit A (labeled in our fileVideo-1.mov)

to the declaration of Herman Miller is video

that I obtained from my client and provided

to defendants’ counsel at the direction of

the Court, after [Defense counsel] claimed

they had video evidence, and the Court

suggested I provide it to them. Exhibits B

and C represents a segment of a video.

Defendants’ counsel advised me that the

source from which they obtained Exhibit B

and C was Facebook.

(ECF No. 25, Brewington Decl. ¶¶ 3-4.) Mr. Brewington

failed to state in his first declaration whether he

relied on Video Exhibits A-C in drafting the

Complaint. He has not provided any videos upon which

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he relied, including the video referenced at paragraph

31 of the Complaint.

In his memorandum of law in opposition to Defendants’

motion to dismiss, Plaintiff asserts that the “surveillance

video” referenced in his Complaint was “video identified to his

counsel during his representation of Mr. Benny during the

criminal prosecution.” (Pl. Opp’n. at pp. 5-6.) Plaintiff

further states that the video referenced in his Complaint was

“not the full video taken from the scene by Mr. Benny or his

friends.” (Id. at 6.) Then, though it is no longer clear to

the Court to which video Plaintiff refers, Plaintiff’s

memorandum of law further states that, “[Mr.] Benny has not

offered the video as part of his pleadings. Nor has he

incorporated the video following the Defendants’ introduction of

it.” (Id. at 6.) (emphasis added.) This confusing and

conflicting series of representations by Plaintiff’s counsel

were exacerbated when the Court, on September 10, 2021, ordered

a direct answer from Plaintiff’s counsel as to the video

evidence at issue. (See Dkt. Order, Sept. 10, 2021.) In

response, Plaintiff’s counsel, Mr. Brewington, submitted a

second signed declaration, stating for the first time that, he

“did not rely on the videos attached as Exhibits A-C to the

Declaration of [Howard] Miller, dated September 4, 2020.”

(Second Brewington Decl. at ¶ 2.) Mr. Brewington again failed

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to produce the video(s) upon which he relied, including the

“surveillance video” mentioned in paragraph 31 of the Complaint.

He states that he was unable to locate the actual “surveillance

video” referenced in the Complaint, could not “recall the source

of the images shown” to him, that the surveillance video “was

not in our possession and/or control and is not in our

possession,” and that Mr. Benny himself does not recall the

video. (Id. at ¶¶ 3-4.) Mr. Brewington declares he is “at a

loss as to the source of the video,” or if the surveillance

video referenced in the Complaint even is surveillance video.

(Id. at ¶ 3.) Instead, Mr. Brewington only offers that “my best

memory is that I thought it looked like surveillance footage.”

(Id.)

The Court considers Mr. Brewington’s confounding

representations and delayed admission about the surveillance

video referenced in paragraph 31 of the Complaint to be

unproductive, inconsistent with his role as an officer of the

court and his obligations under Rule 11, and a needless

expenditure of the resources of the Court and the Defendants’

counsel. Defendants referred to the video recording of the

incident as being referenced by and integral to the Complaint in

their July 2020 letter requesting a pre-motion conference; the

Court memorialized Defendants’ reference to the video in the

Court’s Minute Entry for the pre-motion conference; and the

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parties’ joint letter of August 26, 2020, explicitly described

the three Videos submitted as the videos referenced in the

Complaint. (ECF No. 13, Defs. July 10, 2020, Letter, at p. 1;

Min. Entry, Aug. 4, 2020; ECF No. 19, Joint Letter, at p. 1.)

Plaintiff, through his counsel, had ample opportunity, if not an

obligation, to dispute or clarify the specific video evidence

being referenced by the Complaint, discussed by, and finally

jointly submitted by the parties in the months leading up to the

filing of Defendants’ motion to dismiss. Plaintiff failed to do

so. Months later, faced with an additional Order in September

2021 from the Court regarding the video evidence, Plaintiff’s

counsel is unable to recall the source of the surveillance video

footage referred to in the Complaint, but states under oath that

none of the video evidence identified as Exhibits A-C in the

possession of the parties and submitted to the Court was relied

on in drafting the Complaint. (Second Brewington Decl., at ¶¶

2-4, 7.) Plaintiff’s counsel does not dispute in his Second

Declaration dated September 13, 2021, that the video evidence

identified as video Exhibits A-C depicts, at least in part, the

incident giving rise to Plaintiff’s claims. (Id. at ¶ 2.)

Despite stating that Plaintiff provided the video at Exhibit A

to Defendants’ counsel (see id. ¶ 2), and despite having been

provided Exhibits B and C by Defendants’ counsel (see Brewington

Decl. at ¶ 4), Plaintiff’s counsel notably has not moved to

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withdraw any allegations of the Complaint that appear to be

contradicted by the Videos as would be expected from an officer

of the court. See Gersbacher v. City of New York, 134 F. Supp.

3d 711, 719 (S.D.N.Y. 2015) (noting that after certain videos

were surfaced by Defendants, plaintiff “responded, in part, by

striking [a corresponding paragraph] of the complaint.”).

Instead Plaintiff’s counsel admits he cannot provide the video

referenced in his Complaint that allegedly supports his client’s

claims. (Second Brewington Decl., at ¶¶ 3, 6.)

As noted supra and explained further here, the Court

at the motion to dismiss stage must limit its consideration to

documents attached to the Complaint as exhibits, incorporated by

reference in the Complaint, or documents that the Complaint

relies on heavily such that the documents are integral to the

Complaint. See Chambers, 282 F.3d at 153 (citing Int’l

Audiotext Network, 62 F.3d at 72). “To be incorporated by

reference, the complaint must make a clear, definite and

substantial reference to the documents.... [and] [t]o be

integral to a complaint, the plaintiff must have (1) actual

notice of the extraneous information and (2) relied upon the

documents in framing the complaint.” Walia v. Napolitano, No.

CV112512(SJF)(SIL), 2017 WL 10378189, at *9 (E.D.N.Y. Dec. 4,

2017) (quoting Allstate Ins. Co. v. Rozenberg, 771 F. Supp. 2d

254, 268 (E.D.N.Y. 2011) (quoting DeLuca v. AccessIT Group,

29

Inc., 695 F. Supp. 2d 54, 60 (S.D.N.Y. 2010) (internal quotation

marks, citations, and alterations omitted)).

For the disputed Video Exhibits A-C to be considered

by the Court at this 12(b)(6) motion, in addition to Plaintiff

having actual notice of the Video Exhibits A-C, Plaintiff’s

Complaint would have had to rely heavily upon the contents of

the Videos, such that the material was integral to the

Complaint. See Chambers, 282 F.3d at 153. According to

Plaintiff’s counsel’s second signed declaration, the Court

cannot consider Exhibits A-C, given Plaintiff’s counsel’s

declaration that he did not rely on any of the Videos in

drafting the Complaint. Therefore, as Plaintiff did not rely on

the Video Exhibits A-C, and the Videos are thus not integral to

the Complaint, the Court finds it must decline to consider the

Video Exhibits A-C at the 12(b)(6) motion to dismiss stage.

Importantly, however, neither party has disputed the

accuracy or authenticity of the Videos, as neither party has

disputed that the Videos depict the relevant events of December

8, 2018, beginning at approximately 3:00 a.m. to 3:30 a.m. in

Long Beach, New York. It is not clear to the Court how the

“surveillance video” referenced at paragraph 31 in Plaintiff’s

Complaint—which Plaintiff and Plaintiff’s counsel claim they are

unable to locate and produce—would differ from the Video

Exhibits A-C submitted by the parties to the Court. The parties

30

agree that Video Exhibits A-C provide relevant, clear, and

contemporaneous, real-time evidence of the events giving rise to

the Complaint.

The Federal Rules of Civil Procedure establish two

options for district courts when matters outside the pleadings

are presented in relation to a 12(b)(6) motion: “the court may

exclude the additional material and decide the motion on the

complaint alone or it may convert the motion to one for summary

judgment under Fed. R. Civ. P. 56 and afford all parties the

opportunity to present supporting material.” Fonte, 848 F.2d at

25. Assuming the allegations in the Complaint to be true in

considering the Defendants’ 12(b)(6) motion, the Court denies

without prejudice Defendants’ motion to dismiss the Plaintiff’s

excessive force, failure to intervene, false arrest, malicious

prosecution, abuse of process, race discrimination, and First

Amendment claims with leave to renew as a motion for summary

judgment.

The Court concludes that it is not in the interests of

justice or efficiency to consider the claims presently before

the Court without considering the available, uncontested video

evidence of the events that gave rise to the action. The Court,

accordingly, will exercise its discretion in the interests of

fairness and judicial economy, and grants leave to move for

summary judgment pursuant to Federal Rule of Civil Procedure 56

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on the remaining, undismissed claims. The Court will consider

the Video evidence previously submitted by the parties, along

with any other relevant, admissible evidence that either party

submits into the record if a motion for summary judgment is

properly before the Court.

CONCLUSION

For the foregoing reasons, Defendants’ motion to

dismiss is GRANTED in part and DENIED in part. First, based on

the agreement of Plaintiff’s counsel, the Long Beach Police

Department is DISMISSED as a defendant; Plaintiff’s Section 1981

claims are DISMISSED; and, to the extent any request for

punitive damages against the City of Long Beach were sought, the

request is STRICKEN. Second, as to the Fifth Count in

Plaintiff’s Complaint, Plaintiff’s claims for municipal

liability against the City of Long Beach pursuant to Section

1983 are DISMISSED as a matter of law pursuant to Rule 12(b)(6)

for failure to state a claim. The Court DENIES WITHOUT

PREJUDICE Defendants’ motion to dismiss Plaintiff’s excessive

force, failure to intervene, false arrest, malicious

prosecution, abuse of process, race discrimination, and First

Amendment claims, with leave to file a motion for summary

judgment.

If the parties intend to proceed with a summary

judgment motion, the parties shall adhere to the following

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briefing schedule: moving parties shall serve, but not file,

their motion for summary judgment, including a 56.1 statement

and supporting evidence, by October 8, 2021. Opposing parties

shall serve, but not file, their opposition upon opposing

counsel by October 22, 2021. Moving parties may serve a reply

by October 29, 2021. The parties shall file the fully-briefed

motion papers to ECF in logical order on or before October 29,

2021. If the parties do not intend to proceed with a summary

judgment motion, the parties should promptly report to

Magistrate Judge Steven Tiscione for supervision of discovery.

SO ORDERED.

Dated: Brooklyn, New York

September _23_, 2021

__/s/ Kiyo A. Matsumoto_____

KIYO A. MATSUMOTO

United States District Judge

Eastern District of New York

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