Fraser v. City of New York

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF NEW YORK

JOAN FRASER, □

Plaintiff, MEMORANDUM & ORDER

; 20-CV-5741 (NGG) (RER)

-against-

CITY of NEW YORK, NEW YORK CITY POLICE

DEPARTMENT, and POLICE OFFICERS JOHN

DOE 1-5

Defendants. □

NICHOLAS G, GARAUFIS, United States District Judge.

Plaintiff, Joan Fraser, brings this action against the City of New -

York (the “City”), the New York City Police Department (the

“NYPD”), and five unnamed NYPD officers (the “Officers”). Ms.

Fraser asserts claims under the First, Fourth, and Fourteenth

Amendments, and for assault and battery, intentional and negli-

gent infliction of emotional distress, and negligent hiring,

retention, and supervision. Additionally, Ms. Fraser alleges two

Monell claims against the City for its unconstitutional policies and

_ inadequate training of police officers. The City filed a partial mo-

tion to dismiss Ms. Fraser’s First and Fourteenth Amendment

claims, intentional and negligent infliction of emotional distress

claims, negligent hiring, retention, and supervision claim, and

Monell claims. The City also contends that the NYPD should be

removed as a defendant since it is not a suable entity and that

Ms. Fraser should be prohibited from making additional amend-

_ ments to her complaint.

For the reasons set forth below, the City’s motion to dismiss Ms.

Fraser’s Fourteenth Amendment claim, intentional and negligent

infliction of emotional distress claims, negligent hiring, retention,

and supervision claim, and Monell claim for unconstitutional poi-

icies is GRANTED. The City’s motion to dismiss Ms. Fraser’s First

Amendment claim and Moneil claim for inadequate training is

DENIED. The NYPD is removed as a Defendant because the

NYPD is not a suable entity. The court declines to issue an order

prohibiting further amendments to the complaint.

I BACKGROUND

The following summary is drawn from the facts alleged in the

Amended Complaint, which the court accepts as truc. See N.Y.

Pet Welfare Ass’n v. City of N.Y., 850 F.3d 79, 86 (2d. Cir. 2017).1

Ms. Fraser attended and recorded a protest in Brooklyn on May

29, 2020, following the death of George Floyd. (Am. Compl.

(Dkt. 14) 94 13, 17.) At approximately 10:15 p.m., near the in-

tersection of Classon and Lafayette Avenues, one or more NYPD

officers struck her twice, using their hands and batons. (id. 13,

18.) Ms. Fraser alleges that she was “violently knocked ... to the

ground,” which caused “severe, serious, and permanent injuries.”

(id. { 19.) Ms. Fraser was treated in an ambulance at the scene

and sought follow-up treatment the next day at a local hospital.

(id. | 21-23.) Ms. Fraser continues to require medical care for

the injuries sustained. Ud. 23.)

Il. STANDARD OF REVIEW

_ On a motion to dismiss for failure to state a claim under Federal

Rule of Civil Procedure 12(b}(6), the court assesses “the legal

sufficiency of the complaint, taking its factual allegations to be

true and drawing all reasonable inferences in the plaintiffs fa-

vor.” Harris. Mills, 572 F.3d 66, 71 (2d Cir. 2009). The

complaint must “state a claim [for] relief that is plausible on its

face” by “plead[ing] factual content that allows the court to draw

the reasonable inference that the defendant is liable for the mis-

conduct alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009).

1 When quoting cases, and unless otherwise noted, all citations and quota-

tion marks are omitted, and all alterations are adopted.

:

“Mere labels and conclusions or formulaic recitations of the ele-

ments of a cause of action will not do; rather, the complaint’s

factual allegations must be enough to raise a right to relief above

the speculative level.” Arista Records, LLC v. Doe 3, 604 F.3d 110,

120 (2d Cir. 2010) (emphasis in original).

Iii. DISCUSSION □ .

A. NYPD as a Suable Entity

The City argues that the NYPD should be removed as a defendant □

since it is not a suable entity. The New York City Charter provides

that “[a]ll actions and proceedings for the recovery of penalties

. for the violation of any law shall be brought in the name of the

city of New York and not in that of any agency.” N.Y.C. Charter

Ch. 17 § 396, The NYPD is an agency of the City of New York and

is therefore a non-suable entity. See Jenkins v. City of N.Y., 478

F.3d 76, 93 n.19 (2d Cir. 2007) (affirming the district court’s dis-

missal of claims against the NYPD as a non-suable entity).

Accordingly, the City’s motion to remove the NYPD as a defend- □

ant is GRANTED. The case may proceed against the City, and if

Ms. Fraser ascertains the identities of the John Doe police officers

such that she may properly serve them, the case may proceed

against them as well. .

B. Constitutional Claims □

‘The City moves to dismiss Ms. Fraser’s claims that (i) the Officers’

use of excessive force and indifference to her medical needs vio-

lated her rights under the Fourteenth Amendment, and (ii) the

Officers violated her rights under the First Amendment, as incor-

porated by the Fourteenth Amendment.

. 1. Fourteenth Amendment Claim

Ms. Fraser alleges that Defendants violated her Fourteenth

Amendment rights when they restrained her, which “depriv[ed]

her of her personal liberty,” and when they “fail[ed] to properly

and adequately address” her “physical injuries.” (Am. Compl. 4

. 100-07.)

a. Excessive Force

When a plaintiff brings both Fourth and Fourteenth Amendment

claims that arise out of the same conduct by defendants, the two

claims may not proceed simultaneously. See Graham y. Connor,

490 U.S. 386, 395 (1989); Bogart v. City of N.Y., No. 13-CV-1017

(NRB), 2016 WL 4939075, at *7 (S.D.N.Y. Sept. 6, 2016).? In

these circumstances, courts must “identif[y] the specific constitu-

tional right allegedly infringed by the challenged application of

force” and judge the claim by “reference to the specific constitu-

tional standard which governs that right.” Graham, 490 U.S. at

394-95 (expressing a preference for “an explicit textual source of

constitutional protection” over “the more generalized notion of

substantive due process”).

Excessive force claims arising out of an arrest or seizure are eval-

uated under the Fourth Amendment using an “objective

reasonableness” standard. See id. at 397-98 (explaining that this

covers “excessive force—deadly or not—in the course of an ar-

rest, investigatory stop, or other ‘seizure’ of a free citizen”).

Where plaintiffs do not allege “that they were arrested or seized,”

courts analyze the use of excessive force under the Fourteenth

Amendment’s more stringent “shocks the conscience” standard.

Tierney v. Davidson, 133 F. 3d 189, 199 (2d Cir. 1998). .

Because Ms. Fraser’s Fourteenth and Fourth Amendment claims

rely on the same alleged use of excessive force, the court cannot

allow both to proceed and must determine which constitutional

right was specifically infringed in this case. Ms. Fraser alleges that

the Officers “wrongly and affirmatively restrain[ed]” her, “de-

priving her of her personal liberty, by twice forcibly pushing and

2 The City has moved to dismiss the Fourteenth Amendment claim but not

the Fourth Amendment claim.

striking her, and pushing her to the ground.” (Am. Compl. 4

102.) The court thus finds that the Fourth Amendment addresses

the specific constitutional right allegedly infringed because Ms.

Fraser alleges that she was seized in the course of this incident.

See Graham, 490 U.S. at 395; (see also Am. Compl. 4 15.) Ac-

cordingly, Ms. Fraser’s excessive force claim may proceed under

the Fourth Amendment standard. However, her Fourteenth □

Amendment excessive force claim cannot proceed.

b. Deliberate Indifference to Medical Needs

Ms. Fraser also alleges that Defendants “were deliberately indif-

ferent to [her] condition and needs,” in violation of the

Fourteenth Amendment. (fd. § 104.) Since the allegations about

the seizure and force are more appropriately brought under the

Fourth Amendment, the court construes the deliberate indiffer-

ence claim to concern the alleged failure to “properly and

adequately address [her] physical injuries.” Gd. { 103.)

“(T]he Supreme Court has recognized that conduct exhibiting

‘deliberate indifference’ to harm can support a substantive due

process claim,” where the conduct shocks the conscience. Lom-

bardi v. Whitman, 485 F.3d 73, 82 (2d Cir. 2007).° The Court

_ explained that:

[dleliberate indifference that shocks in one environment

may not be so patently egregious in another, and our con-

cern with preserving the constitutional proportions of .

3 Though Ms. Fraser alleges that she “was in the custody of the Defend-

ants,” (Am. Compl. { 101}, she has not alleged that she was handcuffed,

arrested, or brought to a police precinct or vehicle. Since Ms. Fraser was

not in custody at the time of the incident, she can bring her deliberate in-

difference claim only under the Fourteenth Amendment, not under the

Eighth Amendment. See DeShaney v. Winnebago Cnty. Dept’ of Soc. Servs.,

489 U.S, 189, 198-200 (1989).

substantive due process demands an exact analysis of cir-

cumstances before any abuse of power is condemned as

conscience-shocking.

Cnty. of Sacramento v. Lewis, 523 U.S. 833, 850 (1998). In Lewis,

the Court held that police conduct during a car chase does not

reach this conscience-shocking level without the “intent to harm

suspects physically or to worsen their legal plight.” Id. at 854.

Courts up to and including the Supreme Court have differenti-

ated between. “occasion[s] calling for fast action” and instances

. where officials “hav[e] time to make unhurried judgments.” Id.

at 851-53 (“As the very term ‘deliberate indifference’ implies, the

. standard is sensibly employed only when actual deliberation is

practical.”). In these fast-action situations, courts have noted that

“when unforeseen circumstances demand an officer’s instant

judgment,” the standard for what shocks the conscience is even

higher. Id. at 852-53. Neither negligently inflicted harm nor “an

intermediate level of fault, such as recklessness is . .. enough to

impose constitutional liability.” Pena v. DePrisco, 432 F.3d 98,

113 (2d Gir. 2005).

Here, the Officers were responding to the protest and did not

have time to deliberate, so a more demanding standard for de-

liberate indifference is appropriate. Ms. Fraser has not pleaded

any facts indicating that the Officers “fail[ed] to properly and ad-

equately address [her] physical injuries,” (see Am. Compl. |

103)—certainly not to the conscience-shocking level required for

a finding of deliberate indifference. She apparently quickly made

her way to an ambulance on the scene after the alleged assault.

Thus, she has failed to raise a cognizable claim for deliberate in-

. difference under the Fourteenth Amendment.

Accordingly, because Ms. Fraser’s Fourteenth Amendment exces-

sive force claim is more appropriately brought under the Fourth

Amendment, and her deliberate indifference claim is not cog-

nizable, the City’s motion to dismiss the Fourteenth Amendment

claim is GRANTED.

2. First Amendment Claim

Ms. Fraser claims that Defendants violated her First and Four-

teenth Amendment rights “by engaging in conduct that is

shocking to the conscience and is offensive to the community’s

sense of fair play and decency,” and that Defendants were aware

of the violations of her rights because the “First Amendment

Right to freedom of expression and speech is a Right that is so

clearly established that a reasonable person under the circum-

stances presented herein would have known the said conduct

was a violation,” specifically her right “to assemble for peaceful

and lawful protests.” (Am. Compl. 19 41, 44, 46.) The City moves

to dismiss this cause of action because “it is duplicative of [her]

excessive force claim under the Fourth Amendment,” and she

“fails to clearly allege what this conduct is.” (Mem. in Supp. of

Mot. to Dismiss (“Mot.”) (Dkt. 20) at 9.)

As to the City’s claim that Ms. Fraser’s First Amendment claim is

duplicative of her Fourth Amendment claim, a plaintiff may al- □

lege First and Fourth Amendment claims arising out of the same

alleged conduct. See Salmon v. Blesser, 802 F.3d 249, 255-56 (2d

Cir. 2015) (finding that the plaintiff could have properly alleged

both First and Fourth Amendment claims had plaintiff suffi-

ciently asserted he was exercising his First Amendment rights at

the time the officers used force); Pluma v. City of N.Y., No. 13-

CV-2017 (LAP), 2015 WL 1623828, at *6-*8 (S.D.N.Y. 2015)

(reasoning that plaintiff could have brought a Fourth Amend-

ment excessive force claim and a First Amendment claim had the

plaintiff alleged facts that satisfied the requirements of each

claim). Consequently, the court declines to dismiss Ms. Fraser's

claim on that basis.

As to the City’s claim that Ms. Fraser has not clearly alleged what

the conduct is, the court agrees that the Amended Complaint

could more clearly apprise the court of the First Amendment con-

duct. However, that is not fatal here.

“To state a First Amendment claim, a plaintiff must allege facts

admitting a plausible inference that the defendant's actions re-

stricted, or were retaliation against, speech or conduct protected

by the First Amendment.” Salmon, 802 F.3d at 255. Ms. Fraser

alleges sufficient facts to establish that she was plausibly engag-

ing in expressive conduct protected by the First Amendment at

the time of the incident: She asserts that Defendants prevented

her from attending a protest and recording police activity. (Am.

Compl. { 44.) Attending a protest is clearly protected under the

First Amendment. See Cox v. Louisiana, 379 U.S. 559, 574

(1965). Courts in this circuit have found that recording police

activity is also protected under the First Amendment. See Hig-

ginbotham v. City of N.Y., 105 F. Supp. 3d 369, 380 (S.D.N.Y.

2015) (holding that the First Amendment protects the filming of -

police activity); Pluma, 2015 WL 1623828, at *6-*8 (S.D.N.Y.

2015) (same, and noting that “some Courts of Appeals have held

_ that the First Amendment protects the right to film the police,”

but “neither the Supreme Court nor the Second Circuit has ad-

dressed [it]”).

At the motion to dismiss stage, the court finds that these allega-

tions amount to a plausible inference that the Defendants

restricted Ms. Fraser’s First Amendment conduct by interfering

with her ability to participate in and record the protest. The court

recognizes, however, “that the claim, like all claims, may look

very different at the summary judgment stage.” Marom v. City of

N.Y., 15-CV-2017 (PKC), 2016 WL 916424, at *11 (S.D.N.Y. Mar.

7, 2016). For these reasons, the City’s motion to dismiss Ms. Fra-

ser’s First Amendment claim is DENIED.

C. State Law Tort Claims

The City has also moved to dismiss Ms. Fraser’s claims of inten-

tional infliction of emotional distress (IED), negligent infliction

of emotional distress (NIED), and negligent hiring, retention, and

supervision.

1. Intentional Infliction of Emotional Distress

_ Defendants move to dismiss Ms. Fraser’s ITED claim because she

also alleges assault and battery, a traditional tort, arising out of .

the same set of facts. Under New York law, an ITED claim may

“be invoked only as a last resort,” Turley v. ISG Lackawanna, Inc.,

774 F.3d 140, 158 (2d Cir. 2014), “to provide relief in those cir-

cumstances where traditional theories of recovery do not,” Sheila :

C. v. Povich, 781 N.Y.S. 2d 342, 351 (1st Dep’t 2004). As a result,

the New York Court of Appeals has considered the possibility that

an IIED claim can never be brought when the challenged conduct

“falls well within the ambit of other traditional tort liability.”

Fischer v. Maloney, 43 N.Y.2d 553, 557-58 (1978). The four ap-

pellate division courts in New York have concluded that it may

not. See Salmon, 802 F.3d at 256 (collecting cases). Thus, courts

in this circuit have consistently concluded that IED claims are

duplicative of traditional tort claims. See, e.g., id. at 256-57 (hold-

ing that where the challenged conduct “would have been

actionable under state law as a battery,” the ITED claim was

properly dismissed); Rubio v. Cnty. of Suffolk, No. 01-CV-1806

- (TCP), 2007 WL 2993830, at *5 (E.D.N.Y. Oct. 9, 2007) (holding .

that the IIED claim was duplicative of other state tort claims, in-

cluding assault and battery).

Ms. Fraser’s IIED claim fails because “the conduct complained of

falls well within the ambit of other traditional tort liabil-

ity.” Turley, 774 F.3d at 159. Specifically, the challenged conduct

amounts to an assault, and Ms. Fraser has alleged assault as a

cause of action in the Amended Complaint. Accordingly, the

City’s motion to dismiss Ms. Fraser’s claim for intentional inflic-

tion of intentional distress is GRANTED.

2. Negligent Infliction of Emotional Distress

Defendants move to dismiss Ms: Fraser’s NIED claim because, as

with IIED claims, a claim for NIED should be asserted as a last

resort. Courts in the Second Circuit have described NIED claims

as “an even greater stretch” than IIED claims given “the narrow

band of negligent emotional distress cases recognized under New

York law.” Jackson v. Nassau Cnty., 552 F. Supp. 3d 350, 386

(E.D.N.Y 2021); see also Broadnax v. Gonzalez, 2. N.Y.3d 148, 153

(2004) (explaining that New York courts have shown a

“longstanding reluctance to recognize causes of action for negli-

gent infliction of emotional distress”).

□□ a result, NIED claims are generally dismissed when the claim

arises out of the same facts that give rise to a traditional tort

cause of action. See, ¢.g., Doe v. Uber Techs., Inc., 551 Supp. 3d

341, 364 (S.D.N.Y 2021) (dismissing NIED claim because “the

allegations supporting the NIED claim track the allegations sup-

porting plaintiffs negligent screening, hiring, and supervision

claim, as well as her negligence claim”); Buoniello v. Ethicon

Women’s Health & Urology, No. 19-CV-4021 (DRH) (ARL), 2020

WL 5802276, at *4 (E.D.N.Y. Sept. 29, 2020) (dismissing plain- □

tiffs NIED claim because it was duplicative of other tort causes

of action); Berrio v. City of N.Y., No. 15-CV-9570 (ALC), 2017 WL

118024, at *7 (S.D.N.Y, Jan. 10, 2017) (“New York does not rec-

ognize NIED or IIED causes of action where the conduct

underlying them may be addressed through traditional tort rem-

edies.”); C.T. v. Valley Stream Union Free Sch. Dist., 201 F. Supp.

3d 307, 327-28 (E.D.N.Y. 2016) (granting summary judgment to

defendants on NIED claim because it “mirror[ed]” another tort

claim).

Like her HED claim, Ms. Fraser’s NIED claim arises out of the

same facts and circumstances as her claim for assault and battery,

10

a traditional tort claim. (See Am. Compl. {{ 61-69.) And she has

not provided any basis on which the court can conclude that this

claim is distinct. Ms. Fraser therefore cannot pursue the same

claim under a NIED theory. Accordingly, the City’s motion to dis-

miss the negligent infliction of emotional distress claim is

GRANTED.

3. Negligent Hiring, Supervision, and Retention

The City argues that Ms. Fraser’s negligent hiring, supervision,

and retention claim fails because the Officers were acting within

the scope of their employment. Under New York law, a plaintiff

may state a claim for negligent hiring, supervision, or retention,

by showing, “in addition to the standard elements of negligence,”

(1) that the tort-feasor and the defendant were in an em-

ployee-employer relationship ...; (2) that the employer

knew or should have known of the employee’s propensity for

the conduct which caused the injury prior to the injury’s oc-

currence ...; and (3) that the tort was committed on the

employer's premises or with the employer’s chattels.

Ehrens v. Lutheran Church, 385 F.3d 232, 235 (2d Cir. 2004).

“Generally, where an employee is acting within the scope of his =

or her employment... , no claim may proceed against the em-

ployer for negligent hiring or retention.” Karoon v. N.Y.C. Transit

Auth., 659 N.Y.S.2d 27, 29 (1st Dep’t 1997) (granting defendant

New York City Transit Authority summary judgment on negligent

hiring, retention, and training claim because bus driver was act-

ing within the scope of employment). As a result, courts in this

circuit have consistently dismissed negligent hiring, retention,

and supervision claims where the defendant was acting within

the scope of employment. See, e.g., Paul v. City of N.Y., No. 16-

CV-1952 (VSB), 2017 WL 4271648, at *7 (S.D.N.Y. Sept. 25,

2017) (dismissing negligent hiring, training, and supervision

claim because “there are no allegations in the Amended Com-

plaint that the officers were at any point acting outside the scope

11

of their duties and none of the facts as alleged directly or infer-

entially supports such a finding”); Melvin v. Cnty. of Westchester,

No. 14-CV-2995 (KMK), 2016 WL 1254394, at *21 (S.D.N.Y.

Mar. 29, 2016) (dismissing negligent hiring, retention, and train-

ing claim because there were no allegations in the complaint that

the defendants “were acting outside scope of employment during

the course of events giving rise to Plaintiffs claim”).

Here, the Officers were acting within the scope of their employ-

ment as police officers at the protest. They were not attending in

their personal capacities. Ms. Fraser concedes as much, as she

alleges that “Defendants POLICE OFFICERS . . . at all times

herein were acting in such capacity as the agent, servants, and/or -

employees of the City and NYPD, within the scope of their em-

ployment.” (Am. Compl. {4 12-13.)

Notwithstanding the case law in this circuit, Ms, Fraser argues

that Jaquez v. City of New York supports her position. See No. 10-

GV-2881 (KBF), 2014 WL 2696567 (S.D.N.Y. June 9, 2014). She

argues that the Jacquez court “held that an alternative pleading .

..is satisfied when, like here, plaintiff alleges that the Defendants

City and NYPD, and their delegated supervisors knew or should

have known of Defendant-Officer’s propensity for their illegal

conduct.” (Opp. at 21.) However, Ms. Fraser appears to misun-

derstand the holding in Jacquez. Like Ms. Fraser, the plaintiffs in

Jacquez pleaded that “the City knew or should have known that

the individual defendants were likely to engage in the conduct

that caused .. . death.” 2014 WL 2696567, at *7. But the court |

held that this claim failed as a matter of law because “plaintiffs

have failed to allege, even in the alternative, that the individual

defendants were acting outside the scope of their employment at

the time of the alleged misconduct.” Id. So too here, Ms. Fraser

has not pled in the alternative that the Officers were acting out-

side the scope of their employment.

12

Because the Officers were acting in the scope of their employ-

ment, and Ms. Fraser has not pled in the alternative that the

Officers were acting outside the scope of their employment, the

City’s motion to dismiss her claim for negligent hiring, supervi-

sion, and retention is GRANTED.

D. Municipal Liability Claims ,

A municipality may be held liable under 42 U.S.C. § 1983 when

_ a plaintiffs injury is the result of municipal policy or custom. See

Monell v. Dep’t of Soc. Servs., 436 U.S. 658, 694 (1978). On a

motion to dismiss, the “mere assertion... . that a municipality has

...a custom or policy is insufficient in the absence of allegations

of fact tending to support, at least circumstantially, such an in-

ference.” Montero v, City of Yonkers, 890 F.3d 386, 403-04

Cir, 2018). A municipality may be held liable under § 1983 for

the constitutional violations of its employees that “may fairly be

said to represent official policy.” Monell, 436 U.S. at 694. Thus,

“[t]o hold a city liable under § 1983 for the unconstitutional ac-

tions of its employees, a plaintiff is required to plead and prove .

..: C1) an official policy or custom that (2) causes the plaintiff to

be subjected to (3) a denial of a constitutional right.” Wray v. City

of N.Y., 490 F.3d 189, 195 (2d Cir. 2007). But a municipality may

not be held liable solely “by application of the doctrine of re-

spondeat superior.” Pembaur v. City of Cincinnati, 475 U.S. 469,

478 (1986). And “a single incident alleged in a complaint, espe-

_ cially if it involved only actors below the policy-making level,

does not suffice to show a municipal policy.” DeCarlo v. Fry, 141

F.3d 56, 61 (2d Cir. 1998).

Ms. Fraser alleges that the City and NYPD “promulgated official

Policies, Rules, and Regulations” that “allow[], permit[], and en-

courag[e] the use of Excessive Force” and that the City

inadequately trains police officers. (Am. Compl. 78-99.)

13

1. Unconstitutional Policy

To bring a Monell claim for an unconstitutional policy, the plain-

tiff must show that an “action pursuant to official municipal

policy caused the[] injury,” which “includes the decisions of a

government’s lawmakers, the acts of its policymaking officials,

and practices so persistent and widespread as to practically have

the force of law.” Connick v. Thompson, 563 U.S. 51, 60-61

(2011). At the pleading stage, the court “does not impose a prob-

ability requirement .. . ; it simply calls for enough fact to raise a

reasonable expectation that discovery will reveal evidence.” Bell

Atlantic v. Twombly, 550 U.S. 544, 556 (2007).

The City argues that this claim should be dismissed because sin-

gle acts of excessive force by non-policymaking municipal

employees, i.e., police officers, are not sufficient to demonstrate

municipal custom, policy, or usage that would justify municipal

liability under § 1983. A single incident is usually not sufficient

because the municipality could have acted properly and merely

hired a “bad apple,” who acted in violation of others’ constitu-

tional rights. See Oklahoma City v. Tuttle, 471 U.S. 808, 821

(1985). However, a single act may justify liability of the munici-

pality when a plaintiff establishes that the single act is one of

many. In other words, “such acts would justify liability of the mu-

nicipality if, for example, they were . . . sufficiently widespread

and persistent to support a finding that they constituted a cus-

tom, policy, or usage of which supervisory authorities must have

been aware, or if a municipal custom, policy, or usage would be

inferred from evidence of deliberate indifference of supervisory

officials to such abuses.” Jones v. Town of E. Haven, 691 F.3d 72,

81 (2d Cir. 2012).

Ms. Fraser refers generally to NYPD officers’ consistent and wide-

spread use of excessive force as an official policy. (See Am.

Compl. {| 82-84.) In support of this argument, Ms. Fraser at-

tached a December 2020 report on an investigation conducted

14

| by the New York City Department of Investigation titled Investt- □

gation into NYPD Response to George Floyd Protests (hereinafter,

“DOI Report”) to her opposition motion. (See DOI Report (Dkt.

21-3).)* She notes the DOI Report’s findings about police officers’

“use of force and certain crowd control tactics to respond to the

Floyd protests,” which included the use of batons. (See id. at 3,

42-43.)

Courts in this circuit have allowed plaintiffs to rely on govern-

mental reports to “adequately plead the existence of de facto

customs or policies.” Felix y. City of N.Y., 344 F. Supp. 3d 644,

658 (S.D.N.Y. 2018) (holding that a report from the Inspector

General for the NYPD and references to a series of lawsuits could

“substantiate policymakers’ awareness of the NYPD’s deficient

policies”); see also Lopez v. City of N.Y., 20-CV-2502 (LJL), 2022 □

WL 2078194, at *8 (S.D.N.Y June 9, 2022) (holding that a Mol-

_ Jen Commission report could have supported a plaintiffs claim of

widespread “police falsification” had the report established that

the falsifications continued through the relevant time period);

Kucharczyk y. Westchester Cnty., 95 F. Supp. 3d 529, 544

(S.D.N.Y. 2015) (“(T]he DOJ Report appended to Plaintiffs

+ Defendant argues that the court may not consider the DOI Report since

it was not attached to the Amended Complaint nor sufficiently referenced

in the Amended Complaint. Though the DOI Report was not attached to

the Amended Complaint, there are multiple references to and discussions

of the report within the Amended Complaint, which in the court's view,

constitutes “a clear, definite, and substantial reference.” Trump v. Vance,

977 F.3d 198, 210 n.8 (2d Cir. 2020) (holding that two brief quotations

from a New York Times article in the Second Amended Complaint, which

did not include the title or date of the article, allowed the panel to consider

the entire article because the reference “[wa]s far more substantial than a

mere passing reference”); see also Sira v. Morton, 380 F.3d 57, 67 (2d Cir,

2004) (holding that two documents were incorporated by reference to the

complaint where the complaint “explicitly refer[red] to and relie[d] upon”

them}. However, the court does not consider the reports first referenced in

her opposition.

15

Complaint is sufficient to allege a widespread practice at [the lo-

cal jail] of which policymakers were aware.”).

“That a report was published after the subject incident does not

prevent plaintiffs from relying on it—provided plaintiffs plead

other allegations from which the court may infer high-level poli-

cymakers’ acquiescence.” Felix, 344 F. Supp. 3d at 658. In Felix,

the court found that the report “adequately reflect[ed] the City’s

notice of problems that occurred prior to its publication,” where

“Tilt discusse[d] extensive research and planning” that had oc-

curred well in advance of the incident, and the “[r]eport was an

internal document rather than a document developed by an out-

side agency.” Id. at 658, Thus, the court found that the plaintiffs

were “rely[ing] on the report not for the notice it provided on its

date of publication, but for the inference it supports that high-

level policymakers were aware of the alleged deficiencies at the

time of’ the relevant incident. Id. So too here, Ms. Fraser at-

tempts to rely on the DOI Report for the inference of prior notice.

However, the DOI Report, which is not an internal document,

does not indicate that the NYPD had notice of the widespread use

of excessive force prior to the protests in May 2020. At the outset,

the City correctly points out that the DOI Report did not “reach[]

the conclusion that the NYPD had unconstitutional policies or pa-

trol guide procedures,” and Ms. Fraser “fails to identify any

policies and procedures that could possibly be the cause of [her]

harm.” (Mot. at 6.) In fact, the DOI Report spends few of its 111

pages discussing excessive force. Though the DOI Report men-

tions earlier protests implicating First Amendment freedoms,

such as the Occupy Wall Street protests, it does not state that

excessive force was an issue at these earlier protests such that the

NYPD would have had notice of the issue. (DOI Report at 6.) The □

DOI Report discusses excessive force as part of its finding that

“the NYPD’s primary strategy appears to have involved the appli-

cation of disorder control tactics and methods.” Ud. at 35.) It

16

explains that “there were allegations of individual instances of

excessive force, some widely reported, such as the police vehicle

in Brooklyn driving into a crowd, excessive use of batons, and

use of pepper spray.” (id. at 42.) Staff from the NYPD’s Commu-

nity Affairs. Unit “confirmed observing instances that they

believed to constitute disproportionate force by officers, includ-

ing punching, kicking, tackling, or using batons to strike

protesters. (Id. at 43.) The NYPD executives who were consulted

on the report “noted their agreement with disciplinary action

against officers involved in particular reported incidents,” but be-

yond the reported incidents, “did not believe officers engaged in

widespread excessive force during the protests.” Gd.) The court

has not seen anything in the DOI Report indicating that high-

level NYPD officials were aware of this issue prior to the May

2020 protests.

In her opposition motion, Ms. Fraser also directs the court to In

re New York City Policing During Summer 2020 Demonstrations,

in which the plaintiffs alleged similar excessive force claims aris- -

ing out of the same series of protests. 548 F. Supp. 3d 383, 401

(S.D.N.Y 2021). There, plaintiffs relied on the same DOI report,

in addition to non-governmental organization reports document-

ing police misconduct at protests in earlier decades; several

lawsuits alleging incidences of police brutality; thousands of Ci-

vilian Complaint Review Board complaints in response to NYPD □

practices at the May-June 2020 protests, reports from the New |

York Attorney General’s Office, Human Rights Watch, and Cor-

poration Counsel; and the incidents alleged in the complaints. Id.

at 401. Based on this comprehensive evidence, the court con-

cluded that the plaintiffs had sufficiently demonstrated the

existence of an official policy, as compared to the single DOI Re-

port relied on here. Id. at 402.

Even drawing all inferences in Ms. Fraser’s favor, the court can-

not conclude on the basis of a single allegation and one report

17

published after the incident that she has stated a claim for an

unconstitutional policy of excessive force. Accordingly, the City’s

motion to dismiss the Monell claim for unconstitutional policies

: is GRANTED. If Ms. Fraser seeks to file another amended com-

plaint on this cause of action, she should consider appending □

more extensive evidence of the alleged unconstitutional policy,

along the lines of what the plaintiffs submitted in In re New York

City Policing During Summer 2020 Demonstrations.

2. Inadequate Training

Defendants also move to dismiss Ms. Fraser’s Monell claim that

the City is liable under § 1983 for failing to adequately train the

Officers, She alleges that the City inadequately trained its offic-

ers, in particular on how to police First Amendment-protected .

expression at protests. (Am. Compl. {| 86-99.)

Inadequate training may be the basis of a § 1983 claim where the

municipality has displayed “deliberate indifference to the rights

of persons with whom the police come into contact.” See City of

Canton v. Harris, 489 U.S. 378, 388 (1989). To establish that a

municipality's failure to train its employees amounts to “deliber-

ate indifference,” a plaintiff must plead some facts that, if proven,

would tend to show that (1) “a policymaker knows to a moral

certainty that her employees will confront a given situation”; (2)

“the situation either presents the employee with a difficult choice

of the sort that training or supervision will make less difficult or

that there is a history of employees mishandling the situation”;

and (3) “the wrong choice . . . will frequently cause the depriva-

tion of a citizen’s constitutional rights.” Jenkins v. City of N.Y.,

478 F.3d 76, 94 (2d Cir. 2007). Additionally, the policymaker’s

deliberate indifference in training must cause the injury and “be

based on more than the mere fact that the misconduct occurred

in the first place.” Amnesty America v. Town of W. Hartford, 361

F.3d 113, 129-31 (2d Cir. 2004).

18

At the motion dismiss stage, plaintiffs alleging the failure to train

“confront pleading standards that threaten their ability to press

their claims beyond mere accusation.” Osterhoudt v. City of N.Y.,

No. 10-CV-3173 (RJD) (RML), 2012 WL 4481927, at *2

(E.D.N.Y. Sept, 27, 2012). This is in large part because “[i]t is

unlikely that a plaintiff would have information about the city’s

training programs or about the cause of the misconduct at the

pleading stage.” Amnesty America, 361 F.3d at 130 n.10.

In recognition of these difficulties, the Second Circuit has held

that a plaintiff “need only plead that the city’s failure to train

caused the constitutional violation.” Id.; see also Jackson v. Nas-

sau Cnty., 552 F. Supp. 32 350, 380-81 (E.D.N.Y. 2021) (denying

motion to dismiss inadequate training claim where: plaintiff re-

lied on the court’s earlier decision in another case “discussing

allegations of misconduct by County investigators. . . for fabrica-

tion of evidence and coercive interrogation tactics”); Reyes v.

Cnty. of Suffolk, 995 F, Supp. 2d 215, 231 (E.D.N.Y. 2014) (al-

lowing inadequate training claim to proceed where plaintiff

alleged three other examples of the same alleged failure); Ferrari

y. Cnty. of Suffolk, 790 F. Supp. 2d 34, 46 (E.D.N.Y. 2011) (al-

lowing inadequate training claim to proceed even though

plaintiff “d[id] not plead much factual detail concerning Suffolk

County’s training programs”).

Ms. Fraser alleges that the City failed to train police officers to

“specifically address First Amendment-Protected Expression, in-

cluding the failure to facilitate a peaceful assembly.” (Am.

Compl. { 89.) With respect to the first prong from Jenkins, she

has alleged the policymakers’ knowledge that its employees

would confront this situation. Specifically, she asserts that the

City was “aware of the need to create and implement policies,

practices, and procedures . . . for policing of protests and crowds

... exercising their First Amendment Rights.” (See id. { 92.) On

19

the second prong, she alleges that the City did not provide “suf-

ficient training on policing First Amendment-Protected

Expression” despite knowing Officers would police “protests and

crowds who were exercising their First Amendment Rights.” (See

id. 92-94.) Finally, she has alleged causation—that the City’s

Jack of training led to her injuries. (Id. 4 94). She supports these

allegations with references to the DOI Report, which provides,

among other things, that the NYPD does not have policies specific

to policing protests and that “other than for personnel assigned

to [the Strategic Response Group]... , prior to the Floyd pro-

tests, NYPD lacked standardized, agencywide, in-service training

related to policing protests.” (See Compl. 44 90-93; DOI Report

at 34-35, 56, 60-61.)°

For these reasons, Ms. Fraser “has nudged [her] claims across the

line from conceivable to plausible,” Osterhoudt, 2012 WL

4481927, at *2 (quoting Twombly, 550 U.S. at 570), and the

City’s motion to dismiss this claim is DENIED.

E. Amendments to the Complaint

Under Federal Rule of Civil Procedure 15, leave to amend should

be “freely” granted “when justice so requires,” Fed. R. Civ. P.

15(a)(2). It should not be denied “[i]n the absence of... undue

delay, bad faith or dilatory motive on the part of the movant,

repeated failure to cure deficiencies by amendments previously

allowed, undue prejudice to the opposing party by virtue of al-

lowance of the amendment, futility of amendment, etc.” Forman

y. Davis, 371 U.S. 178, 182 (1962). “If the underlying facts or

5 Though Ms. Fraser also references a second report on policing and the

NYPD patrol guide, neither of which were submitted to the court, in alleg-

ing inadequate training, the court does not find these documents to be

persuasive. Though the second report generally finds that improvements

in training are warranted for policing protests, this finding is not specific

to the NYPD. With respect to the NYPD patrol guide, Ms. Fraser does not

point to any specific problems.

20

circumstances relied upon by a plaintiff may be a proper subject

of relief, he ought to be afforded an opportunity to test his claim

on the merits.” Id.

Ms. Fraser has amended her complaint once, and the record does

not indicate that she has repeatedly submitted deficient plead-

ings. Given the liberal standard set forth in Rule 15(a), the court

declines to ex ante issue an order prohibiting Ms. Fraser from fur-

ther amending her complaint. However, she is warned not to □

continue seeking relief under causes of action that would be im-

permissibly duplicative, such as her Fourteenth Amendment,

IED, and NIED claims, or are inconsistent with her factual alle-

gations, such as her negligent hiring, supervision, and retention

claim. Ms. Fraser’s counsel is directed to conduct research on the

legal standards of any claims she asserts, so as to avoid wasting

the court’s time with meritless claims.

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IV. CONCLUSION

For the reasons stated above, the City’s motion to dismiss Ms.

Fraser’s Fourteenth Amendment claim, intentional and negligent

infliction of emotional distress claims, negligent hiring, supervi-

sion, and retention claim, and Monell claim for unconstitutional

policies is GRANTED. The City’s motion to dismiss Ms. Fraser’s

First Amendment claim and Monell claim for inadequate training

is DENIED. The NYPD is removed as a Defendant because the

NYPD is not a suable entity. The court declines to issue an order .

prohibiting Ms. Fraser from further amending her complaint. .

SO ORDERED.

Dated: Brooklyn, New York

July 2 4 2022

s/Nicholas G. Garaufis

NICHOLAS G. GARAUFIS

United States District Judge

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