Guerrero v. DeMatteo

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF NEW YORK

JOSE F. GUERRERO,

Plaintiff, MEMORANDUM & ORDER

against: 22-CV-1217 (NGG) (RER)

BETH T. DOUGLAS, as Former Assistant

Department Advocate, Police Department City

of New York, JOSHUA P, KLEIMAN, as Former

Assistant Department Advocate, Police

Department City of New York, CHARLES

DEMATTEO, as Sergeant, Major Case Squad,

Police Department City of Yonkers, MEGAN

MADUS, as Detective, Major Case Squad, Police

Department City of Yonkers, DENNIS MULLIN,

as Detective, Police Department City of

Yonkers, ROBERT SPINK, as Police Officer,

Police Department City of Yonkers, each sued

individually and in their official capacities as

employees of The City of New York and

Yonkers,

Defendants.

NICHOLAS G, GARAUFIS, United States District Judge.

Plaintiff Jose Guerrero, a former sergeant with the New York Po-

lice Department (“NYPD”), brings suit against various members

of the NYPD and Yonkers Police Department (“YPD”) in their in-

dividual and official capacities alleging denial of access to the

courts in violation of 42 U.S.C. § 1983. (See Am. Compl. (Dit.

13) at 14-15.) Guerrero asserts that the Defendants withheld ex-

culpatory evidence and made fabricated claims during the course

of an NYPD disciplinary proceeding, ultimately leading to his ter-

mination. The Defendants move to dismiss Guerrero’s Amended

Gomplaint in its entirety, (See NYPD Mot. (Dkt. 23); YPD Mot.

(Dkt. 26).) For the reasons stated below, the motion to dismiss is

GRANTED with prejudice.

I. BACKGROUND!

Guerrero, a former NYPD sergeant, was involved in a domestic

dispute with his then-girlfriend Yahayra Feliz on December 23,

2015. (Am. Compl. 4 17.) Feliz was shot in the neck with Guer-

rero’s off-duty 9MM handgun inside his apartment. Cd.)

Thereafter, Defendants Megan Madaus, Charles DeMatteo, Den-

nis Mullin, Robert Spink, and Douglas Brady, all Yonkers Police □

Department officers (“YPD Defendants”), purportedly created a

“false case” against Guerrero alleging that he intentionally or

recklessly discharged his handgun during an argument with Feliz

1 The following facts are taken from the Amended Complaint and, for the

purposes of this motion to dismiss, are assumed to be true. See Ark. Pub.

Emps. Ret. Sys. v. Bristol-Myers Squibb Co., 28 F.4th 343, 349 (2d Cir.

2022). Both parties attached supporting materials to their briefing on the

instant motion. The court is permitted to consider documents that are in-

corporated into the Amended Complaint by reference or that are “integral”

to it. Chambers v. Time Warner, Inc., 282 F.3d 147, 152-53 (2d Cir. 2002),

A document is integral “where the complaint relies heavily upon its terms

and effect.” fd. at 153. Consideration of other materials would require the

court to convert the motion to one for summary judgment and allow an

opportunity for discovery. fd. at 154. Both the complaint in Guerrero v. City

of Yonkers and Feliz’s interview with Douglas and Kleinman are incorpo-

tated into the Amended Complaint by reference. (See Am. Compl. {| 13-

16; see also Dkts. 24-2, 24-3, 26-3.) Detective Madaus’s “Trial Room Testi-

mony” is also referenced in the Amended Complaint and provided to the

court. (See Am Compl. 4 18; see also Dkt. 26-7.) The court will thus con-

sider these documents in weighing the instant motion. The Amended

Complaint also references other documents that have not been provided

to the court in this action, such as Feliz’s 2021 deposition testimony. (See

Am Compl. 4 18.) The court cannot consider materials that are not dock-

eted in this action. The other docurnents attached to the parties’ briefing,

including those attached to the YPD Defendants’ motion, (see YPD Mot. at

7 2.6), are relevant but are not relied on by Guerrero’s Amended Com-

plaint. The court thus excludes all other documents attached to the briefing

over the motion.

over his infidelity. Ud.) Feliz, after recanting her initial story that

she was shot while walking toward her apartment, signed a writ-

ten statement claiming that she was shot by Guerrero following

a heated dispute over his infidelity. Ud. { 18, 28, 52.) Guerrero

alleges that Detective Madaus created this statement and forced

Feliz to sign it while tired and medicated at the hospital. Ud. "4

25-26.)

Guerrero was arrested by the YPD and suspended without pay

from his NYPD job. (id. {| 35-36.) During grand jury proceedings

in Westchester County on June 8, 2016, Feliz disavowed her

written statement and admitted to subjecting Guerrero to domes-

tic violence, entering his apartment without permission,

retrieving his unsecured off-duty 9 MM handgun, and being in-

jured in the resulting struggle. (id. {| 39-47.) Feliz also testified

that she signed the written statement when “really tired” and

“had a lot of meds [in her] body.” Ud. § 48.) Guerrero later cor-

roborated this account as a witness. Ud. 99 56-58.) The

Westchester County District Attorney withdrew the criminal

charges against Guerrero on June 14, 2016. (Id. 4 59.)

Shortly thereafter, Defendants Beth Douglas and Joshua Klein-

man (“NYPD Defendants”), then Assistant Department

Advocates for the NYPD, began a proceeding to investigate and

adjudicate disciplinary charges brought against Guerrero (the

“NYPD disciplinary proceeding”). Ud. (| 60, 65.) During this in-

vestigation, a Westchester County Assistant District Attorney told

Douglas that Feliz had disavowed the YPD criminal investigation,

but Douglas did not communicate this renunciation to Guerrero.

Cd. §§ 60-62.) Feliz spoke to the NYPD Defendants on August 3,

2017 and again disavowed the narrative that Guerrero intention-

ally or recklessly discharged his 9MM handgun amidst an

argument over his infidelity. dd. 1 63-66.) Feliz recorded this

interview because she did not trust the police. (id. € 64.) Douglas

and Kleinman then interviewed the YPD Defendants and pro-

ceeded with the disciplinary case. (Id. { 68.)

in mid-August 2017, a disciplinary hearing was held before

NYPD Assistant Deputy Commissioner for Trials David S. Weisel.

(id. { 69.) During testimony on August 14, Feliz repeated the

same statements that she made to the Westchester County grand

jury in June 2016 and to Douglas and Kleinman on August 3,

2017——that Guerrero did not discharge his handgun intentionally

or recklessly during an argument over his infidelity, but instead

that the gun went off after she barged into his apartment and

retrieved his firearm. (fd. {{ 69-70.) Guerrero and Sergeant Neil

Casey of the NYPD Force Investigation Division corroborated Fe-

liz’s account, while Detective Madaus and Officer Spink testified

in opposition. Ud. {{ 71-78.) On December 15, 2017, Assistant

Deputy Commissioner for Trials Weisel recommended Guerrero’s

termination from the NYPD. (id. { 78.) Police Commissioner

James P. O’Neill adopted this recommendation on February 1,

2018 and terminated Guerrero’s employment. (Id. 479.)

On September 24, 2018, Guerrero sued the cities of New York

and Yonkers, as well as various municipal employees associated

with his criminal prosecution and termination from the NYPD,

alleging false arrest, malicious prosecution, and race and gender-

based discrimination. (See Feb. 4, 2020 M&O (Dkt. 28), Guerrero

vy. City of Yonkers, et al., 18-CV-5353 (NGG) (RER) (E.D.N.Y. Feb.

4, 2020).) On February 4, 2020, this court dismissed Guerrero’s

claims against the New York City-related defendants but allowed

certain claims against the Yonkers defendants to proceed. (Id. at

13.) The remaining defendants filed a motion for summary judg-

ment on November 18, 2021, which remains pending. (See Mot.

for Summ. J. (Dkt. 43), Guerrero v. City of Yonkers, et al., 18-CV-

5353 (NGG) (RER) (E.D.N.Y. Nov. 18 2021).)

The instant case arises from “newly discovered evidence” ob-

tained during Guerrero v. City of Yonkers, including grand jury

testimony and the recording of Feliz’s August 3, 2017 interview

with Douglas and Kleinman. (Am. Compl. 13-16.) Guerrero

brings a single claim for denial of access to the courts under 42

U.S.C. § 1983, alleging that the YPD and NYPD Defendants pre-

sented fabricated evidence, withheld information on Feliz’s lack

of credibility, and pursued the criminal case against Guerrero

without credible evidence of serious misconduct or any criminal

offense. (Id. §{ 80-86.) He alleges that this “resulted in his termi-

nation from the [NYPD] causing the loss of all pay and benefits,

a multimillion-dollar future pension distribution, punitive dam-

ages, emotional distress, legal expenses, and other costs[.]”

(Opp. to NYPD Mot. (Dkt. 24) at 10; Opp. to YPD Mot. (Dkt. 27)

at 10.)

Il, LEGAL STANDARD

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

contain sufficient factual matter, accepted as true, to ‘state a

claim to relief that is plausible on its face.” Ashcroft v. Iqbal, 556

U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550

U.S. 544, 570 (2007)).? “A claim 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 miscon-

duct alleged.” Id. A complaint must contain facts that do more

than present a “sheer possibility that a defendant has acted un-

lawfully.” Id. In deciding a motion to dismiss, the court will

accept all factual allegations in the complaint as true and draw

all reasonable inferences in the plaintiffs favor. Fink v. Time

Warner Cable, 714 F.3d 739, 740-41 (2d Cir. 2013). However,

allegations that “are no more than conclusions [] are not entitled

to the assumption of truth.” Hayden v. Paterson, 594 F.3d 150,

2 When quoting cases, unless otherwise noted, all citations and internal

quotation marks are omitted, and all alterations are adopted.

161 (2d Cir. 2010). Dismissal for failure to state a claim is appro-

priate if it is clear from the face of the complaint that a claim is

barred as a matter of law. Biocad JSC v. F. Hoffman-La Roche, 942

F.3d 88, 93 (2d Cir. 2019).

Ill. DISCUSSION

At the outset, the court notes that the Amended Complaint cen-

ters on Guerrero’s NYPD disciplinary proceeding. (Am. Compl. at

1-2.) Though the June 2016 Westchester County grand jury op-

erated in the background, the Amended Complaint makes

allegations principally with respect to the NYPD investigation

and “Trial Room’—i.e., the disciplinary proceeding Ud. 4 81-

86.) This proceeding was not a criminal prosecution; it was an

administrative process to adjudicate charges of misconduct that

resulted in Guerrero’s termination from the NYPD. Cid. 1 69,

79.) The Due Process Clause of the Fourteenth Amendment was,

however, implicated in this proceeding because Guerrero pos-

sessed a property interest in his continued employment with the

NYPD. See Capul y. City of New York, No. 19-CV-4313 CKPF),

2020 WL 2748274, at *7 (S.D.N.Y. May 27, 2020); Quire v. City

of New York, No. 19-CV-10504 (RA), 2021 WL 293819, at *4

(S.D.N.Y. Jan. 28, 2021).

A. Failure to State a Claim Under § 1983

Guerrero brings a single claim under § 1983 for denial of access

to the courts. (Am. Compl. 19 80-86.)° “[T]he source of this right

3 Both sets of Defendants also argue that Guerrero has failed to make out

a § 1983 fabrication of evidence claim. (See NYPD Mot. at 10-11; YPD Mot.

at 5-8.) Though it references fabricated evidence, Guerrero’s Amended

Complaint stylizes its sole claim for relief as one for denial of access under

§ 1983, (Am. Compl. □□ 80-86.) The court is under no obligation to con-

strue a counseled plaintiffs complaint as arguably raising claims it chose

not to include. Accordingly, the court will not construe the Amended Com-

plaint as raising a § 1983 fabrication of evidence claim.

has been variously located in the First Amendment right to peti-

tion for redress, the Privileges and Immunities Clause of Article

IV, section 2, and the Due Process Clauses of the Fifth and Four-

teenth Amendments.” Monsky v. Moraghan, 127 F.3d 243, 246

(2d Cir. 1997). Such claims typically fall into one of two catego-

ries: (1) where a “systemic officiai action frustrates a plaintiff or

plaintiff class in preparing and filing suits,” such as lack of access

to law libraries; and (2) where the litigant claims that “they have

irrevocably lost the ability to file a lawsuit, typically because of a

massive government cover-up denying plaintiffs the ability to

gather evidence.” Ponterio v. Kaye, No. 06-CV-6289 (HB), 2007

WL 141053, at *9 (S.D.N.Y, Jan. 22, 2007).

The latter category looks “backward to a time when specific liti-

gation ended poorly, or could not have commenced, or could

have produced a remedy subsequently unobtainable.” Christo-

pher v. Harbury, 536 U.S. 403, 414 (2002); see also Fareila v. City

of New York, No. 05-CV-5711 (NRB), 2007 WL 2456886, at *6

(S.D.N.Y. Aug. 23, 2007) (“The Supreme Court’s review of its

own precedent... [establishes] that each of the backward-look-

ing cases involved allegations of a cover-up by city or state

officials.”). “The viability of backward-looking right-of-access

claims is far from clear in this Circuit.” Sousa v. Marquez, 702

F.3d 124, 128 (2d Cir, 2012); see also Oliva v. Town of Greece,

630 F. App’x 43, 44 (2d Cir. 2015) (Summary Order). “To the

extent that they exist, [backward-looking] claims would be avail-

able only if the governmental action caused the plaintiffs suit to

be dismissed as untimely, or if a judicial remedy was completely

foreclosed by public officials’ false statement or nondisclosure.”

Martinez v, City of New York, 564 F. Supp. 3d 88, 101 (E.D.NLY.

2021).

To plead denial of access, a plaintiff “must allege not only that

the defendant’s alleged conduct was deliberate and malicious,

but also that the defendant’s actions resulted in actual injury to

the plaintiff.” Cancel v. City of New York, No. 07-CV-4670 (RRM)

(LB), 2010 WL 8965889, at *4 (E.D.N.Y. Mar. 3, 2010) (R&R).

Actual injury entails showing that the alleged shortcomings hin-

dered efforts to pursue an arguable, nonfrivolous underlying

claim. Lewis v. Casey, 518 U.S. 343, 351 (1996). The plaintiff

must in essence have “effectively lost (or was severely hampered

in) the ability to file a lawsuit[.]” Ponterio, 2007 WL 141053, at

*9, A denial of access plaintiff must also allege the underlying

cause of action which has been lost through the defendants’ mal-

feasance, as well as any available remedy under the access claim

and presently unique to it. Christopher, 536 U.S. at 417-18. This

is because a denial of access claim is “ancillary to the underlying

claim, without which a plaintiff cannot have suffered injury by

being shut out of court.” Id, at 415. Moreover, “a plaintiff does

not suffer a constitutional deprivation of access if he has other

available avenues to bring his grievances before the court.” Wa-

ters v. Sunshine, No. 07-CV-4753 (DLD (LB), 2009 WL 750217,

at *4 (E.D.N.Y. Mar. 19, 2009).

Guerrero’s backward-looking denial of access claim runs into the

threshold problem of not alleging any deprivation or hinderance

of access to a court. See Farella, 2007 WL 2456886, at *7.4+ He

4 Guerrero has not, however, abandoned his claims against the NYPD De-

fendants. (See NYPD Reply (Dkt. 26) at 3.) “A court may, and generally

will, deem a claim abandoned when a plaintiff fails to respond to a defend-

ant’s arguments that the claim should be dismissed.” Chamberlain v. City

of White Plains, 986 F. Supp. 2d 363, 392 (S.D.N.Y. 2013). “{W]here aban-

donment by a counseled party is not explicit but such an inference may be

fairly drawn from the papers and circumstances viewed as a whole, district

courts may conclude that abandonment was intended.” Walter v. Queens

College, 390 F. Supp. 3d 382, 398 n.5 (E.D.N.Y. 2019) (emphasis in origi-

nal), Guerrero’s Amended Complaint brings a single claim under § 1983.

He filed an opposition brief arguing that the Amended Complaint has al-

leged sufficient facts to sustain this claim. Guerrero’s counsel appeared at

a pre-motion conference to preview a response to the Defendants’ then-

contends that the Defendants “interfered with and deprived him

of his constitutional rights to prove his innocence in the NYPD

internal investigation and Trial Room[.]” (Am. Compl. { 81 (em-

phasis added).) This hearing took place in an internal NYPD

administrative proceeding to adjudicate disciplinary charges.

Though the proceeding bore many of the indicia of an Article If]

or state court—such as representation by counsel, presentation

of witnesses, and examination of evidence—it was a creature of

NYPD internal regulations and New York State statutory law em-

powered only to adjudicate NYPD employment matters.

Nowhere in the Amended Complaint does Guerrero allege that

that he was unable to bring a claim in an Article III or state court

because of the Defendants’ conduct. This raises the question of

whether denial of access claims are cognizable in the context of

NYPD disciplinary proceedings at all. Guerrero has not provided

any caselaw to this effect, let alone precedent supporting the ex-

istence of denial of access claims in administrative proceedings.

Nor has the court been able to identify any supportive precedent.

The Second Circuit’s reluctance to acknowledge the viability of

backward-looking access claims at all, see Sousa, 702 F.3d at 128,

suggests it may not be willing to extend denial of access liability

to NYPD disciplinary hearings.

Even assuming, however, that denial of access claims are valid in

the instant context, Guerrero fails to plead sufficient facts to state

a claim, The Amended Complaint does not identify any underly-

ing cause of action that was lost or substantially hampered a

result of the Defendants’ actions. Nor does it propose a judicial

remedy that may have been awarded to Guerrero but was not

otherwise available due to the Defendants actions, This alone

anticipated motion to dismiss. (11/22/2022 Minute Entry.) Notwithstand-

ing the NYPD Defendants’ contentions otherwise, (NYPD Reply at 3), it can

hardly be said that the circumstances, viewed as a whole, suggest that

Guerrero intended to abandon his sole claim for relief.

warrants dismissal. See, e.g., Martinez, 564 F. Supp. 3d at 101;

Raffaele v, City of New York, 144 F. Supp. 3d 365, 374-75

(E.D.N.Y. 2015). Asserting a loss of a “constitutional right[] to

prove [Guerrero’s] innocence” is not enough. (Am. Compl. § 81;

Opp. to NYPD Mot. at 9; Opp. to YPD Mot. at 9.) The specific

cause of action that was lost or hindered must be expressly iden-

tified.

It is also not clear what “official actions hindered [Guerrero’s]

efforts” to pursue a claim. Lopez v. City of New York, No. 05-CV-

3624 (ARR) (KAM), 2007 WL 2743733, at *13 (E.D.N.Y. Sept.

18, 2007). The Amended Complaint notes that this case arises

from newly discovered evidence that came to light during Guer-

rero v. City of Yonkers, namely grand jury testimony and Feliz’s

recording of her August 3, 2017 interview. (Am. Compl. {{ 13-

16.) It later asserts that the NYPD never shared Feliz’s “exculpa-

tory evidence”—.¢., the statements she made during her August

3, 2017 interview— with Guerrero and withheld from “the NYPD

investigators and Trial Room [that] they were on notice Ms. Feliz

lacked credibility[.]” dd. 19 62, 82.) But the statements that Feliz

made during the August 3, 2017 interview were consistent with

those she made during the NYPD disciplinary hearing. Ud. "| 65-

66, 69-70.) This account was further supported by the testimony

of Guerrero and Sergeant Casey. (id. (4 72-78.) Feliz’s repudia-

tion of her written statement and the reckless discharge theory

were thus not kept from the disciplinary hearing. Nor were issues

regarding her credibility. Feliz testified that she had previously

made “false representations,” but was now changing her story.

(id. { 69.) This about face made her unreliability as a witness

readily apparent to the factfinder at the NYPD disciplinary hear-

ing. Guerrero further notes that the Defendants withheld that

they had “NO CREDIBLE EVIDENCE that he engaged in serious

misconduct or committed any criminal offense.” (Am, Compl. {

82.) But this allegation is conclusory and undermined by the fact

that Douglas and Kleinman pursued the disciplinary case at all,

10

and that Commissioner Weisel found sufficient wrongdoing to

recommend Guerrero’s termination. (Ud. { 78.) There is also no

indication that the Defendants believed they lacked credible evi-

dence. The Amended Complaint thus fails to identify specific

“exculpatory information” that was withheld from the NYPD dis-

ciplinary hearing.°

To the extent Guerrero argues that Douglas and Kleinman’s fail-

ure to disclose the August 3, 2017 interview hindered his ability

to bring a claim, he has failed to provide specific, non-conclusory

allegations establishing how it did so. See Penz v. Fields, No. 21-

CV-005 (VB), 2021 WL 5507249, at *4 (S.D.N.Y. Nov, 23, 2021)

(“General statements that a defendant’s conduct hindered a

plaintiff's pending lawsuit, absent any factual support, are insuf-

ficient to sustain an access-to-courts claim.”). He does not allege

that he would have taken any different actions nor that the result

would have differed but for disclosure of this interview. Guerrero

has also not alleged or otherwise shown that the NYPD Defend-

ants were obligated to disclose the August 3, 2017 interview. His

opposition briefs do not cite, nor has the court been able to iden-

tify, any caselaw suggesting that due process compels public

employers to turn over exculpatory or potentially exculpatory

materials in employment disciplinary proceedings. (See generally

Opp. to NYPD Mot.; Opp. to YPD Mot.) New York Civil Service

° The NYPD Defendants note that “even if the recording indicated that Fe-

liz told them she had lied about fighting with Plainnff regarding his

infidelity and that he had not intentionally or recklessly discharged his

weapon, that fact is entirely irrelevant as Plaintiff was not terminated for

those reasons, He was terminated for a having had a physical [altercation]

and discharging his weapon.” (NYPD Mot. at 11.) If Guerrero’s termination

was not predicated on the reckless discharge theory, but for other non-

contested reasons, this would also defeat Guerrero’s claim. The Amended

Complaint does not, however, allege facts to this effect, nor does it incor-

porate any documents that do so. The court is thus unable to accept this

assertion for purposes of the instant motion.

11

Law § 75 (“Article 75”), which governs procedures for termina-

tion hearings of public employees in New York, also does not

expressly mandate disclosure of such materials. See N.Y. Civ.

Serv. Law § 75(2); see also New York Police Department, Disci-

plinary System Penalty Guidelines 6-7 (2021). The nondisclosure

of the August 3, 2017 interview thus cannot, as alleged, provide

the basis for a denial of access claim.

Accordingly, Guerrero has failed to state a § 1983 claim for denial

of access.®

B. Timeliness

The Defendants also argue that the Amended Complaint was not

filed within the three-year statute of limitations for § 1983 claims

in New York, as the disciplinary proceeding occurred in 2017 and

Guerrero should have known that his cause of action accrued

then. (NYPD Mot. at 7-8; YPD Mot. at 8-10.) Guerrero counters

that he only became aware of the cause of action upon discovery

of Feliz’s recorded interview with Douglas and Kleinman during

discovery in Guerrero v. City of Yonkers in 2022. (Opp. to NYPD

Mot. at 8 n.1; Opp. to YPD Mot. at 8, n.1.)’ The parties are cor-

rect that § 1983 claims in New York must be brought within three

© In the absence of a deprivation of a constitutional right, there can be no

Monell liability for a municipality. Agosto v. N.Y.C. Dep’t of Educ., 982 F.3d

86, 97-98 (2020) (“The elements of a Monell claim are (1) a municipal

policy or custom that (2) causes the plaintiff to be subjected to (3) the

deprivation of a constitutional right.”}. To the extent that Guerrero seeks

Monell liability, his failure to state a § 1983 claim necessarily implies that

New York City and Yonkers cannot be held liable for the individual De-

fendants’ actions, See Segal v. City of New York, 459 F.3d 207, 219 (2d

Cir. 2006) (“Because the district court properly found no underlying con-

stitutional violation, its decision not to address the municipal defendants’

liability under Monell was entirely correct.”).

7 Because the Amended Complaint in this action is not an amended plead-

ing in Guerrero v. City of Yonkers, it cannot relate back to the filing of the

complaint in that separate matter, See generally Fed. R. Civ. P. 15(c).

12

years of when the plaintiff “knows or has reason to know of the

injury which is the basis of his action.” Covington v. City of New

York, 171 F.3d 117, 121 (2d Cir. 1999} (quoting Singleton v. City

of New York, 632 F.2d 185, 191 (2d Cir. 1980)); see also Collins

v. Miller, 338 F. App’x 34, 36 (2d Cir. 2009) (Summary Order),

Because Guerrero has not clearly articulated the nature of the

harm arising from the discovery of Feliz’s recording, the court

cannot determine whether this event triggered the limitations pe-

riod. The court need not resolve this dispute, however, because

Guerrero has failed to state a claim for other reasons.

IV, CONCLUSION

In sum, Guerrero has failed to state a claim. His briefing in oppo-

sition does not seek leave to amend upon a finding of dismissal.

Moreover, “[a]n opportunity to amend is not required where the

plaintiff already has amended the complaint.” Thorsen v. Sons of

Norway, 996 F. Supp. 2d 143, 166 (E.D.N.Y. 2014). Accordingly,

the NYPD and YPD Defendants’ motions to dismiss are GRANTED

WITH PRJEUDICE.

SO ORDERED.

Dated: Brooklyn, New York

August , 2023

s/Nicholas G. Garaufis

NICHOLAS G. GARAUFIS

United States District Judge

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