# Benny v. The City of Long Beach

> District Court, E.D. New York · September 23, 2021

URL: https://www.frixlaw.com/law-library/cases/10306848

## Case

- **Court:** District Court, E.D. New York
- **Decided:** September 23, 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/10306848

## How later opinions describe it (automated extraction)

- noting that after certain videos were surfaced by Defendants, plaintiff “responded, in part, by striking [a corresponding paragraph] of the complaint.”

## Opinion text

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.
---------------------------------X

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 ¶
11
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
12
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.”).

14
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)).

15
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
22
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)
23
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
24
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
25
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
26
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
27
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
28
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
31
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
32
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

33

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10306848. Public record. Not legal advice.