Kane v. City of New York

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF NEW YORK

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NICKIE KANE,

Plaintiff, MEMORANDUM & ORDER

22-CV-1339 (KAM)(LB)

v.

CITY OF NEW YORK; NEW YORK POLICE

DEPARTMENT; SARGENT PUMELLA;

OFFICER JOHN DOE; OFFICER JANE

DOE,

Defendants.

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KIYO A. MATSUMOTO, United States District Judge:

On March 1, 2022, pro se Plaintiff filed the instant action1

alleging violations of the American with Disabilities Act (“ADA”), 42

U.S.C. § 12101 et seq., and violations of the Fourteenth Amendment’s

Equal Protection Clause based on an encounter with police during a July

17, 2020 incident on a bus in Queens, New York.2 (ECF No. 1, Complaint

(“Compl.”). She named as defendants (1) the City of New York; (2) the

New York City Police Department (“NYPD”); (3) Sergeant Pumella; and (4)

Officers John and Jane Doe (collectively “Defendants”). Plaintiff moved

to proceed in forma pauperis. (ECF No. 6.) For the reasons set forth

1 Plaintiff brought the action in the United States District Court for

the Southern District of New York, which subsequently transferred the

case to this Court. (ECF Nos. 1, 2.)

2 Because “a pro se complaint, however inartfully pleaded, must be held

to less stringent standards than formal pleadings drafted by lawyers,”

the Court liberally construes Plaintiff’s Fourteenth Amendment claim as

arising under 42 U.S.C. § 1983. Erickson v. Pardus, 551 U.S. 89, 94

(2007) (per curiam) (internal quotation marks and citations omitted).

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below, and pursuant to 28 U.S.C. § 1915, Plaintiff’s request to proceed

in forma pauperis is GRANTED, the complaint is DISMISSED for failure to

state a claim, and Plaintiff is GRANTED 30 days leave from the date of

this Order to file an amended complaint regarding her ADA claim.

BACKGROUND

The following facts are drawn from the complaint and assumed to be

true for the purposes of this Memorandum and Order. See Kiobel v. Royal

Dutch Petroleum Co., 621 F.3d 111, 124 (2d Cir. 2010) (explaining that

at the pleading stage, a court must assume “all well-pleaded,

nonconclusory factual allegations in the complaint to be true”).

Plaintiff alleges that on July 17, 2020, she boarded a bus with a

service dog. (Compl. at 7.) The service dog helps with her “PTSD with

depression and anxiety”: it “wakes her up in the morning, reminds her

to take her medication, diverts her attention when she is experiencing

a panic attack and barks at individuals who trigger” her. (Id.) After

boarding, the bus driver repeatedly told Plaintiff to leave the bus,

due to her service dog, despite her assertions that the law permitted

her to travel on the bus with the animal. (Id.) When Plaintiff refused

to leave, the driver parked the bus and refused to continue driving.

(Id.) Plaintiff called the police, and NYPD Officers Jane and John Doe

responded. (Id.) Officer John Doe “instructed [Plaintiff] that she

was not allowed to board the bus with her dog.” (Id.) After the

incident, Plaintiff filed a claim with the New York City Comptroller.

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(Id.) Plaintiff alleges that a 50-h hearing was held on August 26,

2021, but does not allege any further information regarding the hearing

or its outcome. (Id.)

Additionally, Plaintiff alleges that she was harassed by a

passenger on the bus, who “began complaining” when the bus was stopped

and who made an offensive comment regarding Plaintiff’s gender

expression. (Id. at 8.) The passenger also allegedly “slammed into

[Plaintiff] and her dog with a shopping cart” after all passengers—

including Plaintiff—disembarked from the parked bus. (Id.) Officers

John and Jane Doe recorded a statement from Plaintiff regarding this

incident. (Id.) When Plaintiff later contacted the NYPD to “inquire

about the status” of her police report, she realized that the report

filed by Officers John and Jane Doe “did not state an assault had

occurred.” (Id.) To correct the allegedly deficient police report,

Plaintiff went to a police station, where Sergeant Pumella took her

statement regarding the bus passenger. (Id.) After “time passed”

without contact from the NYPD, Plaintiff received a copy of the amended

report and realized that it “still did not accurately reflect that an

assault had occurred.” (Id.) She alleges that the NYPD’s failure to

“accurately record the crime” contrasts with their response to the “many

attacks on the Asian community” that were reported during “the pandemic

of 2020,” wherein “[a]ssailants often made comments as to the

race/ethnicity of the victim prior to the assault” and where the

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“assaults were classified as hate crimes and referred . . . for

prosecution.” (Compl. at 8-9.)

Plaintiff asserts that Officers John and Jane Doe violated the

ADA, causing her emotional distress, and that the City of New York

failed to adequately train Officers John and Jane Doe. (Id.) She also

asserts that Defendants violated the Fourteenth Amendment’s Equal

Protection Clause by failing (1) to “accurately record the crime”

committed against her by the bus passenger; and (2) to “investigate and

refer the crime for prosecution as a hate crime,” based on her sex.

(Id. at 2, 8.) She requests as relief damages, the amendment of the

police report, an investigation by the NYPD, and referral of the assault

for prosecution. (Id. at 9.)

STANDARD OF REVIEW

Under 28 U.S.C. § 1915(e)(2)(B), this Court must dismiss an in

forma pauperis action if it determines that the action “(i) is

frivolous or malicious; (ii) fails to state a claim upon which relief

may be granted; or (iii) seeks monetary relief from a defendant who

is immune from such relief.” The submissions of a pro se plaintiff

are “held to less stringent standards” than those drafted by attorneys,

Erickson v. Pardus, 551 U.S. 89, 94 (2007) (per curiam) (internal

quotation marks and citation omitted), and “construed liberally and

interpreted to raise the strongest arguments that they suggest.”

Triestman v. Fed. Bureau of Prisons, 470 F.3d 471, 474 (2d Cir. 2006)

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(per curiam) (citation and internal quotation marks omitted). “This

is particularly so when the pro se plaintiff alleges that her civil

rights have been violated.” Sealed Plaintiff v. Sealed Defendant, 537

F.3d 185, 191 (2d Cir. 2008). Even so, to survive a motion to dismiss,

a complaint must plead enough facts, “accepted as true, to state a

claim to relief that is plausible on its face.” Cohen v. Rosicki,

Rosicki & Assocs., P.C., 897 F.3d 75, 80 (2d Cir. 2018) (citation and

internal quotation marks omitted). “A claim has facial plausibility

when the plaintiff pleads factual content that allows the court to

draw the reasonable inference that the defendant is liable for the

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

Detailed factual allegations are not required, but a pleading that

tenders “naked assertion[s] devoid of further factual enhancement” or

“a formulaic recitation of the elements of a cause of action will not

do.” Id. (citations and internal quotation marks omitted).

DISCUSSION

I. Defendant NYPD

As an agency of the City of New York, the NYPD cannot be joined as

a party to this suit. N.Y.C. Charter § 396 (“All actions and proceedings

for the recovery of penalties for the violation of any law shall be

brought in the name of the city of New York and not in that of any

agency, except where otherwise provided by law.”); see Jenkins v. City

of New York, 478 F.3d 76, 93 n.19 (2d Cir. 2007) (“The district court

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correctly noted that the NYPD is a non-suable agency of the City.”)

(citation omitted). Accordingly, the Court dismisses Plaintiff’s

claims against the NYPD.

II. § 1983 Claims

A colorable Section 1983 claim requires two elements: (1) the

conduct challenged “must have been committed by a person acting under

color of state law,” Cornejo v. Bell, 592 F.3d 121, 127 (2d Cir. 2010)

(citation omitted); and (2) the conduct complained of “must have

deprived a person of rights, privileges, or immunities secured by the

Constitution or laws of the United States.” Id. (citation omitted).

Plaintiff fails to state a claim against Defendants Officer John

Doe, Officer Jane Doe, and Sergeant Pumello. Although Plaintiff’s

factual allegations likely establish that all three defendants were

acting under color of law, Jocks v. Tavernier, 316 F.3d 128, 134 (2d

Cir. 2003) (“We have no doubt that when an officer identifies himself

as a police officer . . . he acts under color of law.”), Plaintiff fails

to establish that their actions deprived her of a constitutional right.

Plaintiff asserts that by failing to include her allegation of an

“assault” committed by the bus passenger in their report, Officers John

and Jane Doe and Sergeant Pumello violated the Equal Protection Clause.

The Equal Protection Clause of the Fourteenth Amendment “is

essentially a direction that all persons similarly situated should be

treated alike.” White v. City of New York, 206 F. Supp. 3d 920, 930

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(S.D.N.Y. 2016) (quoting City of Cleburne v. Cleburn Living Ctr., 473

U.S. 432, 439 (1985). Plaintiff alleges in her complaint that she was

“not granted equal protection as similarly situated individuals due to

her sex,” thus asserting a selective enforcement claim. (Compl. at

9.); see Zahra v. Town of Southold, 48 F.3d 674, 683 (2d Cir. 1995)

(analyzing selective enforcement claim where plaintiff alleged local

ordinance was not enforced against similarly situated individuals).

When alleging selective enforcement claims, a plaintiff must plausibly

allege that “(1) the person, compared with others similarly situated,

was selectively treated, and (2) the selective treatment was motivated

by an intention to discriminate on the basis of impermissible

considerations . . . to punish or inhibit the exercise of constitutional

rights, or by a malicious or bad faith intent to injure the person.”

Hu v. City of New York, 927 F.3d 81, 91 (2d Cir. 2019) (citation

omitted).

Plaintiff has not plausibly alleged facts establishing that others

were similarly situated to Plaintiff. Cf. Okin v. Vill. of Cornwall-

On-Hudson Police Dep’t, 577 F.3d 415, 439 (2d Cir. 2009) (“Any equal

protection claim is grounded on a comparison between the treatment the

state gives similarly situated individuals.”). To satisfy this

standard, Plaintiff’s circumstances “must bear a reasonably close

resemblance” to her comparators’ alleged circumstances. Hu, 927 F.3d

at 96, 97 (“A plaintiff can prevail by showing that she was similarly

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situated in all material respects to the individuals with whom she seeks

to compare herself.” (citation and internal quotation marks omitted)).

Plaintiff generally asserts that assaults against Asian Americans

during 2020 were reported and prosecuted as hate crimes, whereas the

alleged assault against her was not. (Compl. at 8-9.) Such generalized

allegations, however, do not suffice to establish that Plaintiff’s

circumstances bore “a reasonably close resemblance” to assaults that

were prosecuted. Hu, 927 F.3d at 96; see also Iqbal, 556 U.S. at 678

(a pleading that tenders “naked assertions” does not state a claim

(alterations omitted)). Indeed, Plaintiff does not make any factual

allegations about the circumstances of the assaults against members of

the Asian American community beyond the allegation that they occurred,

such as where or when the assaults took place; the severity of the

assaults; or how quickly the police addressed the victims’ complaints.

(Compl. at 8-9.)

Nevertheless, construing Plaintiff’s complaint liberally, her

claim may not rest on the fact that she “was singled out as a target

against whom the law was enforced,”—i.e., that she was subject to

selective enforcement—but rather that the police allegedly refused to

act on her complaint because she was a woman. White, 206 F. Supp. 3d

at 931. For such “‘traditional’ equal protection claims,” a plaintiff

is not required to plead similarly situated comparators. Id.; see Pyke

v. Cuomo, 258 F.3d 107, 109 (2d Cir. 2001) (holding that Native American

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plaintiffs did not need to establish “the disparate treatment of

otherwise similarly situated non-Native American individuals” if

plaintiffs established that “defendants discriminatorily refused to

provide police protection because the plaintiffs [were] Native

American”). In such cases, however, a plaintiff must still allege facts

establishing that “discriminatory intent was a motivating factor” in a

defendant’s actions. Okin, 577 F.3d at 438.

Plaintiff alleges no such facts here, beside legal conclusions.

Drimal v. Tai, 786 F.3d 219, 223 (2d. Cir. 2015) (“Courts are not bound

to accept as true a legal conclusion couched as a factual allegation.”

(internal quotation marks omitted)). Indeed, the complaint’s only

allegation related to Plaintiff’s sex is that the passenger made an

offensive comment concerning her gender expression. (Compl. at 8.)

This does not suffice to establish purposeful animus on behalf of the

individual police officer defendants. Naumovski v. Norris, 934 F.3d

200, 216 n.50 (2d Cir. 2019) (to establish a sex-based equal protection

violation, a plaintiff “must prove that she suffered purposeful or

intentional discrimination on the basis of gender.”). Accordingly,

Plaintiff fails to state an equal protection claim against the

individual defendants under § 1983.

Plaintiff also fails to state an equal protection claim against

the City of New York. “To hold a municipality liable under § 1983 for

the unconstitutional actions of its employees, a plaintiff is required

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to plead and prove three elements: (1) an official policy or custom

that (2) causes the plaintiff to be subjected to (3) a denial of a

constitutional right.” Lucente v. Cnty. of Suffolk, 980 F.3d 284, 297

(2d Cir. 2020) (alteration, internal quotation marks and citations

omitted). Plaintiff does not allege any facts establishing that the

City has a policy or custom of discrimination based on sex in police

reporting, and her § 1983 claims are dismissed.

C. ADA Claims

Plaintiff also asserts claims against Officer John Doe and the

City of New York under the ADA, alleging that Officer John Doe violated

the ADA by preventing her from riding a bus with her service animal

and that the City failed to adequately train Officers John and Jane

Doe. (Compl. at 7-8.) Although she alleges a violation under Title

I of the ADA, which solely relates to employment-based discrimination

based on disability, the Court liberally construes Plaintiff’s claim

as arising under Title II, which concerns discrimination by public

services.3

3 The ADA has two different sections which relate to discrimination on

public transit: Title II, Section 12182, which prohibits discrimination

on publicly owned and operated transit services, and Title III, Section

12184, which prohibits discrimination on public transit services

provided by private entities. 42 U.S.C. §§ 12182, 12184. Plaintiff

does not allege any facts establishing that the bus was operated by a

private entity. Accordingly, for purposes of this Memorandum and Order,

the Court liberally construes her claims as arising under Title II of

the ADA.

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Title II of the ADA requires that “no qualified individual with

a disability shall, by reason of such disability, be excluded from

participation in or be denied the benefits of the services, programs,

or activities of a public entity, or be subjected to discrimination

by any such entity.” 42 U.S.C. § 12132; see also Wright v. N.Y. State

Dep’t of Corr., 831 F.3d 64, 72 (2d Cir. 2016). To establish a claim

under Title II, “a plaintiff must demonstrate (1) that she is a

qualified individual with a disability; (2) that she was excluded from

participation in a public entity’s services, programs or activities

or was otherwise discriminated against by a public entity; and (3)

that such exclusion or discrimination was due to her disability.”

Tardif v. City of New York, 991 F.3d 394, 404 (2d Cir. 2021) (citation

and internal quotation marks omitted)).

“Only public entities are subject to Title II.” City & Cnty. of

San Francisco, Cal. v. Sheehan, 575 U.S. 600, 610 (2015). Accordingly,

to the extent that Plaintiff asserts an ADA claim against Officer John

Doe in his individual capacity, the claim is dismissed. See also

Blaylock v. Doe, No. 14-CV-5363 (SJF), 2016 WL 1069073, at *5 (E.D.N.Y.

Mar. 17, 2016) (noting that, under Title II, “individuals may not be

sued in their individual or personal capacity”). To the extent that

Plaintiff asserts an ADA claim against John Doe in his official

capacity, the Court analyzes the claim concurrently with her claim

against the City.

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An individual has a disability under the ADA if she has “a physical

or mental impairment that substantially limits one or more major life

activities,” or if she has a “record of such impairment.”4 42 U.S.C. §

12102(1)(A), (B). The complaint alleges that Plaintiff “suffers from

PTSD with depression and anxiety” and that she experiences “panic

attacks.” (Compl. at 7.) Plaintiff does not allege, however, any

details supporting how this impairment substantially limits any major

life activities. (Id.); see Cain v. Mandl Coll. of Allied Health, No.

14-cv-1729 (ER), 2017 WL 2709743, at *4 (S.D.N.Y. June 22, 2017)

(“Plaintiff fails to allege any specific facts connecting her symptoms

to any limitation of her major life activities.”). Even at the pleading

stage, therefore, Plaintiff’s “failure to plausibly allege a

substantial limitation to a major life activity precludes her from

asserting that she has a record of disability.” Kelly v. N.Y. State

Off. of Mental Health, 200 F. Supp. 3d 378, 394 (E.D.N.Y. 2016)

(citation omitted).

However, under the more lenient standard set out in Congress’ 2008

amendments to the ADA, a plaintiff may be “regarded as” having a

disability if she “establishes that [s]he . . . has been subjected to

an action prohibited [by the ADA] because of an actual or perceived

4 Major life activities include “caring for oneself, performing manual

tasks, seeing, hearing, eating, sleeping, walking, standing, lifting,

bending, speaking, breathing, learning, reading, concentrating,

thinking, communicating, and working.” 42 U.S.C. § 12102(2)(A).

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physical or mental impairment whether or not the impairment limits or

is perceived to limit a major life activity.” 42 U.S.C. § 12101(3)(A);

see also Woolf v. Strada, 949 F.3d 89, 94 (2d Cir. 2020) (discussing

the 2008 amendment to the ADA). To state a claim under the “regarded

as” prong, a plaintiff “need only establish that defendant regarded

[her] as having a mental or physical impairment.” Rodriguez v. Verizon

Telecom, No. 13-CV-6969 (PKC), 2014 WL 6807834, at *5 (S.D.N.Y. Dec. 3,

2014). Although Plaintiff does not allege any facts establishing that

Officer John Doe regarded her as having PTSD, the Court liberally

construes the complaint to allege that his reference to her service

animal establishes that she was “regarded as” having a disability.

Next, the Court must consider whether Plaintiff established that

she was “excluded from participation in a public entity’s services,

programs or activities or was otherwise discriminated against by a

public entity.” Tardif, 991 F.3d at 404. District courts in the Second

Circuit have found that it is “clear” that “the ADA can apply to police

activity in some situations.” Reyes v. Galpin, No. 18-CV-831 (JBA),

2019 WL 959680, at *8 (D. Conn. Feb. 27, 2019). “In the policing

context, courts typically treat Title II claims under either the

wrongful arrest or failure to reasonably accommodate umbrellas.” Felix

v. City of New York, 344 F. Supp. 3d 644, 663 (S.D.N.Y. 2018).

Neither of these scenarios apply here. First, Plaintiff does not

allege that she was arrested. Second, for reasonable accommodation

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claims, police officers “fail to reasonably accommodate [a plaintiff’s]

disability in the course of investigation or arrest, causing [him or

her] to suffer greater injury or indignity in that process than other

arrestees.” Bobbit v. Marzan, No. 16-cv-2042 (AT), 2020 WL 5633000, at

*16 (S.D.N.Y. Sept. 21, 2020). Such a claim “must be assessed in light

of the totality of the circumstances of the particular case.” Williams

v. City of New York, 121 F. Supp. 3d 354, 365 (S.D.N.Y. 2015). Most

reasonable accommodation claims against police officers relate to a

failure to provide accommodations during an investigation or arrest.

See, e.g., id. (police officers failed to provide ASL interpreter during

arrest); Felix, 344 F. Supp. 3d at 650 (police officers failed to

account for suspect’s paranoid schizophrenia when investigating

suspect, leading to physical altercation); Morales v. City of New York,

No. 13-CV-7667 (RJS), 2016 WL 4718189, at *1 (S.D.N.Y. Sept. 7, 2016)

(wheelchair-bound plaintiff alleged that police mishandled his

transport after arrest); Reyes v. Town of Thomaston, No. 18-CV-831

(JBA), 2020 WL 5849529, at *2 (D. Conn. Sept. 30, 2020) (police

department had “no protocols or procedures regarding how to properly

log information on addresses with persons who are mentally disturbed”).

Here, however, Plaintiff does not allege that Officer John Doe

failed to provide her with reasonable accommodation in his or the NYPD’s

“services, programs or activities,” nor that she was “otherwise

discriminated against” by Officer John Doe based on her disability.

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Tardif, 991 F.3d at 404. Instead, she asserts only that Officer John

Doe failed to counter the bus driver’s alleged discrimination. (Compl.

at 8.) While the Court does not excuse Officer John Doe’s alleged

failure to understand the law regarding service animals, his actions as

alleged do not amount to a discrimination claim under the ADA. Further,

although Plaintiff asserts that the City of New York failed to train

Officers John and Jane Doe, she alleges no facts concerning police

training on the ADA, or lack thereof. See Reyes, 2020 WL 5849529, at

*4-5. Accordingly, Plaintiff has not plausibly alleged an ADA claim

against the City or against Officer John Doe in his official capacity,

and the ADA claim is dismissed.

III. Leave to Amend

When a complaint falls short and is dismissed for failure to state

a claim, the plaintiff should be given an opportunity to amend the

complaint if a “liberal reading of the complaint gives any indication

that a valid claim might be stated.” Cuoco v. Moritsugu, 222 F.3d 99,

112 (2d Cir. 2000) (citations and internal quotation marks omitted).

Here, Plaintiff has not identified the type of bus she rode on July 17,

2020, and did not name the transit authority or private transit company

as a defendant. With that information, in combination with additional

factual allegations, Plaintiff may be able to allege a viable ADA claim

against the municipal transit authority or the private entity operating

the bus, based on the bus driver’s alleged failure to let her board

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with a service animal. Accordingly, and given Plaintiff’s pro se

status, the Court grants Plaintiff thirty (30) days from the date of

this Memorandum and Order to amend her complaint regarding the ADA

claim. See Fed. R. Civ. P. 15(a). The Court declines to grant leave

to amend as to the Section 1983 claim because the Court concludes that

doing so would be futile. As explained above, no factual allegations

suggest that Plaintiff was discriminated against by Defendants based on

her sex. See, e.g., Terry v. Inc. Vill. of Patchogue, 826 F.3d 631,

633 (2d Cir. 2016) (“Although district judges should . . . liberally

permit pro se litigants to amend their pleadings, leave to amend need

not be granted when amendment would be futile.”)

Should Plaintiff file an amended complaint, she must satisfy the

minimal pleading requirements of Fed. R. Civ. P. 8, providing the

defendant(s) with notice of the claim(s) and a short, plain statement

of the relevant facts supporting her claim or claims. Plaintiff must

provide facts pertinent to each claim and cannot rely on generalized or

conclusory allegations of misconduct. If Plaintiff elects to file an

amended complaint, she should label it as an “Amended Complaint” and

forth specifically what injury each defendant did to cause her to

suffer, when and how it occurred, and who was responsible for it.

Conclusory allegations will not suffice to state a claim. See Iqbal,

556 U.S. at 678. Finally, Plaintiff must name the individuals who were

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personally involved as defendants or provide detailed physical

descriptions to assist with identifying them.

CONCLUSION

For the reasons set forth above, the complaint is dismissed for

failure to state a claim. 28 U.S.C. § 1915(e)(2)(B). Plaintiff is

granted thirty days from the date of this Memorandum and Order to file

an amended complaint with respect to her ADA claims only. Plaintiff is

advised that an amended complaint replaces her original complaint. If

Plaintiff fails to file an amended complaint within the 30-day period

or fails to cure the deficiencies identified in this Memorandum and

Order, judgment shall enter dismissing this action with prejudice.

Plaintiff may wish to consult the City Bar Justice Center’s Federal

Pro Se Legal Assistance Project at (212) 382-4729 for free, limited-

scope legal assistance.

The Court certifies pursuant to 28 U.S.C. § 1915(a)(3) that any

appeal would not be taken in good faith and, therefore, in forma

pauperis status is denied for purpose of an appeal. See Coppedge v.

United States, 369 U.S. 438, 444-45 (1962). The Clerk of Court is

respectfully directed to serve a copy of this Memorandum and Order on

pro se Plaintiff and note service on the docket.

SO ORDERED.

December 9, 2022

Brooklyn, New York _______________________

KIYO A. MATSUMOTO

United States District Judge

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