The opinion
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JAMES E. JOHNSON THE Cc ITY OF NEW YorRK ZACHARY KALMBACH
Corporation Counsel Assistant Corporation Counsel
LAW DEPARTMENT phone: (212) 356-2322
100 CHURCH STREET jane Can 356-3509
NEW YORK, N.Y. 10007 ee NSE
June 12, 2020
VIA EC
Honorable J. Paul Oetken
United States District Judge
Southern District of New York
40 Foley Square
New York, New York 10007
Re: Noel Brown v. City of New York, et al.
18 Civ. 3287 (JPO) (SLC)
Your Honor:
I am the attorney assigned to represent defendants the City of New York, Officer
Kempinski, Officer Li, and Captain Firsov in the above-referenced matter. Defendants write to
respectfully request that the Court: (1) endorse defendants’ proposed briefing schedule for their
anticipated motion to dismiss the Second Amended Complaint pursuant to Fed. R. Civ. P. 12(b)(6);
and (2) stay proceedings and adjourn sine die all pending deadlines until after adjudication of
defendants’ motion. Defendants have not sought plaintiffs consent to this request as he is
proceeding pro se and 1s currently incarcerated.
By way of background, plaintiff alleges various federal and state law claims relating to his
arrest on September 6, 2015, and subsequent confinement (ECF No. 6). Defendants moved to
dismiss the Amended Complaint in its entirety on July 26, 2019 (ECF No. 42). On April 9, 2020,
the Court dismissed the Amended Complaint in its entirety, and granted plaintiff leave to amend
the Amended Complaint with respect to his federal claims relating to his confinement, and with
respect to his equal protection claim arising from his arrest (ECF No. 66). Plaintiff filed the Second
Amended Complaint on May 28, 2020 (ECF No. 67). The Second Amended Complaint contains
substantially similar allegations as those in the Amended Complaint.!
' The Second Amended Complaint asserts a claim related to legal mail that was dismissed sua sponte on September
14,2018 (ECF No. 8).
I. Defendants’ Anticipated Motion to Dismiss
As an initial matter, all of plaintiff’s claims relating to his arrest for which the Court denied
leave to amend must be dismissed because “amendment would be futile.” (Id. at 15.) Plaintiff’s
equal protection claim also fails because plaintiff has not alleged any specific facts to support the
claim.
Additionally, plaintiff’s denial of vegan meals fails because plaintiff has not alleged the
personal involvement of any defendant. The Second Amended Complaint alleges only that
Captain Firsov informed plaintiff that he would not receive a vegan meal until he obtained medical
clearance (ECF No. 67 at 8). The Court has already held that this allegation is insufficient to state
a claim against any of the defendants (ECF No. 66 at 8-9).
Plaintiff has also failed to state a claim with regard to his allegation that he was
unconstitutionally strip searched. As the Court held in its April 9, 2020 Order, to support such a
claim plaintiff was required to allege specific facts indicating “that the search involved close
viewing of his body, that he was subject to repeated opposite-sex viewings, or that the [female
officer] touched [him] during the search.” (Id. at 10.) Alternatively, plaintiff was required to
allege “facts suggesting that the strip search was conducted with the specific intent to humiliate,
harass, or abuse him.” (Id.) However, the Second Amended Complaint merely contains the
conclusive allegation that “the humiliation caused by plaintiff being the only inmate forced to strip
search conducted intentionally to harass, and embarrass the plaintiff . . . .” (ECF No. 67 at 9.) As
such, the Second Amended Complaint is completely devoid of any factual allegations necessary
to state a claim for relief with regard to the alleged strip search.
Plaintiff’s claim that he was forced to submit to a drug test also fails to state a claim for
relief. The Second Amended Complaint merely alleges that Officer Covinton forced plaintiff to
submit to a drug test (See id. at 10). The Court held that this allegation, without more, is
insufficient (See ECF No. 66 at 11).
Finally, plaintiff’s claim arising out of the alleged denial of food and medication fails for
the reasons outlined by the Court in its April 9, 2020 Order (See id. at 11-13). Specifically, plaintiff
fails to plead: (1) the personal involvement of any individual defendant; (2) that he was denied
treatment for a serious medical condition; or (3) that any of the individual defendants had actual
knowledge of his serious medical condition.
For the foregoing reasons, defendants intend to file a fully dispositive motion to dismiss
the Second Amended Complaint for failure to state a claim. Defendants respectfully request that
the Court endorse the following briefing schedule on its motion to dismiss:
• Defendants shall serve and file their motion papers on or before July 17, 2020;
• Plaintiff shall serve and file his opposition papers on or before August, 17, 2020;
and
• Defendants shall serve and file their reply papers, if any, on or before September 7,
2020.
II. Stay of Proceedings
Furthermore, because all claims in this case are ripe for dismissal, discovery is not
necessary at this stage. As such, defendants respectfully request a stay of proceedings and
adjournment sine die of all pending deadlines until after the adjudication of defendants’ motion.2
Pursuant to Rule 26(c) of the Federal Rules of Civil Procedure, a court has discretion to stay
discovery “for good cause.” “Good cause may be shown where a party has filed a dispositive
motion, the stay is for a short period of time, and the opposing party will not be prejudiced by the
stay.” Boelter v. Hearst Communs., Inc., No. 15 Civ. 03934 (AT), 2016 U.S. Dist. LEXIS 12322,
at *13 (S.D.N.Y. Jan. 28, 2016) (quoting Spencer Trask Software & Info. Servs., LLC v. RPost
Int’l Ltd., 02 Civ. 01276 (PKL), 206 F.R.D. 367, 368, 2002 U.S. Dist. LEXIS 6021 at *368
(S.D.N.Y. Apr. 8, 2002) (internal quotations omitted)). In determining whether to stay discovery,
the Court should consider: “1) whether the defendant has made a strong showing that the plaintiff’s
claim is unmeritorious; 2) the breadth of discovery and the burden of responding to it; and 3) the
risk of unfair prejudice to the party opposing the stay.” Kanowitz v. Broadridge Fin. Solutions
Inc., 13 CV 649 (DRH) (AKT), 2014 LEXIS 46518 at *15-*16 (E.D.N.Y. Mar. 31, 2014). Courts
in this Circuit “have held that a stay of discovery is appropriate [] where the motion appears to
have substantial grounds or[,] stated another way, does not appear to be without foundation in
law.” Johnson v. N.Y. Univ. Sch. of Educ., 205 F.R.D. 433, 434 (S.D.N.Y. 2002) (internal citations
and quotations omitted).
In the instant action, defendants’ anticipated motion to dismiss is fully dispositive and, as
the stay of discovery would only last for the duration of the Court’s consideration of the motion,
plaintiff would not be prejudiced by said stay. Furthermore, in light of the fully dispositive nature
of defendants’ anticipated motion to dismiss, any movement toward discovery would be a waste
of the Court and parties’ resources. Accordingly, defendants respectfully request that the Court
stay proceedings and adjourn sine die all pending deadlines until after the adjudication of
defendants’ anticipated motion to dismiss.
Defendants thank the Court for its consideration in this matter.
Respectfully submitted,
/s/ Zachary Kalmbach
Zachary Kalmbach
Assistant Corporation Counsel
Special Federal Litigation Division
2 Defendants note that the Court has previously granted defendants’ request for a stay pending resolution of their
motion to dismiss the Amended Complaint (ECF No. 36).
cc: VIA Regular Mail’
Noel Brown
Plaintiff pro se
Smart Communications/PADOC
Noel Brown/MW0387
SCI Somerset
PO Box 33028
St Petersburg, FL 33733
Granted. The moving defendants’ proposed briefing schedule is adopted, and
discovery in this matter is stayed pending the Court's resolution of the anticipated
motion to dismiss. All existing deadlines and conference dates in this matter are
adjourned sine die.
So ordered: 6/22/20
Counsel for defendants are directed to mail a copy of this order to the plaintiff.
| J. PAUL OETKEN
United States District Judge
3 Due to limitations imposed by the ongoing COVID-19 pandemic, defendants are currently unable to mail this
application to plaintiff. However, defendants will attempt to do so as soon as practicable.