# Johnson v. City of New York

> District Court, S.D. New York · September 21, 2022

URL: https://www.frixlaw.com/law-library/cases/10344543

## Case

- **Court:** District Court, S.D. New York
- **Decided:** September 21, 2022
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/10344543

## How later opinions describe it (automated extraction)

- noting that “persistent and widespread” practices of city officials may constitute a municipal custom
- noting that “persistent and widespread” practices of city officials may constitute a municipal custom

## Opinion text

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
mere ee es ee ee se re ee eee es eee ee eee ee XX
VANDYKE JOHNSON, :
Plaintiff, :
-against- : MEMORANDUM DECISION
: AND ORDER
THE CITY OF NEW YORK, DIANA ALAMA, :
CPS Worker, SHEENA BLAISE, CPS Worker, and: 20 Civ. 3083 (GBD) (BCM)
DAVID A. HANSELL, Commissioner of the :
Administration of Child Services,
Defendants. :
eee eee eee ee ee eee ee -X
GEORGE B. DANIELS, United States District Judge:
Pro se Plaintiff Vandyke Johnson brings this action against Defendants the City of New
York, Diana Alama, a Child Protective Services (“CPS”) worker, Sheena Blaise, another CPS
worker, and David A. Hansell, the Commissioner of the New York City Administration of Child
Services, alleging various violations of federal and state law stemming from a child services matter
involving Plaintiff and his family. (See generally Third Amended Complaint (“TAC”), ECF No.
72.) Defendants move to dismiss Plaintiff's complaint for failure to state a claim pursuant to
Federal Rule of Civil Procedure 12(b)(6). (Notice of Mot., ECF No. 76, at 1.)
Before this Court is Magistrate Judge Barbara C. Moses’s August 12, 2022 Report and
Recommendation (the “Report”), recommending that Defendants’ motion be granted and this
action be dismissed. (See generally, Report, ECF No. 91.) Magistrate Judge Moses advised the
parties that failure to file timely objections to the Report would constitute a waiver of those
objections on appeal. (/d at 31.) Plaintiff filed timely objections on August 22, 2022 and
supplemental objections on September 8, 2022. (PI.’s Objs. to Mag. J..s R. & R., ECF No. 92

(“PI.’s Objs.”); Pl.’s Supp. Objs. to Mag. J.’s R. & R., ECF No. 95.)'! Subsequently, on September
15, 2022, Defendants filed a response to Plaintiff's initial and supplemental objections. (Defs.’
Resp. to Pl.’s Objs. to Mag. J.’s R. & R. (“Defs.’ Resp.”), ECF No. 96.)
Having reviewed Magistrate Judge Moses’s Report, Plaintiffs objections, and Defendants’
response, this Court ADOPTS the Report in full. Accordingly, Defendants’ motion to dismiss is
GRANTED and this action is dismissed.
I. FACTUAL BACKGROUND?
On August 22, 2019, Plaintiff was arrested on charges relating to “defamatory” allegations
of child abuse after his step-daughter “A.O.M.” filed a police report accusing Plaintiff of violently
grabbing and dragging her across her bedroom. (Report at 1-2; TAC 4 14.) A.O.M. was taken to
the police station and assisted in reporting the incident by her biological mother, Mercedes
Johnson, with whom Plaintiff also shares another minor child, “V.J.” (Report at 1-2.) The day
after the alleged incident, Plaintiff was arraigned on charges of assault in the third degree, acting
in a manner injurious to a child, and related crimes. (/d. at 2.) The arraigning court also issued a
stay-away order of protection prohibiting Plaintiff from contacting A.O.M. or V.J. (d.)
On August 28, 2019, the Administration of Child Services (“ACS”) filed a neglect petition
against Plaintiff in Family Court based, according to Plaintiff, on “information from the Plaintiff's
August 23, 2019 arrest, that produced no evidence, only false allegations.” (Report at 3; TAC {
13.) The neglect petition accused Plaintiff of inflicting “excessive corporal punishment” on
A.O.M. and alleged that A.O.M. and her younger sister (Plaintiff’s biological daughter, V.J.) were

Plaintiff's Supplemental Objections purport to provide support for a false arrest claim. The operative
complaint does not include a cause of action for false arrest.
* The relevant factual and procedural background is set forth in greater detail in the Report and is
incorporated by reference herein.

)

“neglected children” within the meaning of the law. (Report at 3.) Defendant Alama was the
Child Protective Services worker assigned to the investigation into A.O.M.’s allegations against
Plaintiff and she verified the petition. (/d. at 2-3.) Plaintiff alleges that “defendants did not
provide the family court of any evidence to support their allegations,” and failed to include a report
from another Child Protective Services worker, identified as “CPS Wade,” that exonerated the
Plaintiff of the abuse allegations. (/d. at 9.) Shortly after ACS filed the petition, the Family Court
issued a temporary order of protection prohibiting Plaintiff from having any contact with A.O.M.
or V.J. except in the presence of ACS or certain approved relatives, and barring him from the girls’
home and schools until February 24, 2020. (/d. at 5-6.)
On November 25, 2019, the criminal charges arising out of the August 22, 2019 incident
were dismissed. (Report at 6.) Presumably under the assumption that the criminal charges and
order of protection went hand-in-hand, once the charges were dismissed, Plaintiff's criminal
defense attorneys advised him that there was no longer any order of protection in place. (/d.) In
actuality, the family court order remained in effect. U/d.) Believing that no order of protection
remained, however, Plaintiff returned to his children’s residence. (/d.) After seeing Plaintiff there
during a wellness visit, Defendant Alama called the police. (/d.) Plaintiff was arrested and spent
eighteen hours in jail. (/d.)
The criminal case stemming from Plaintiff's November 25, 2019 violation of the order of
protection was dismissed on March 5, 2020 on speedy trial grounds. (Report at 7.) On February
12, 2020, Plaintiff was again arrested, this time outside of V.J.’s school for “criminal contempt”
after the school principal “falsely called the police and falsely stated to the NYPD that Plaintiff
was violating the Family Court’s order.” (/d. at 7-8.) That case was dismissed on May 12, 2020.
(Ud. at 8.) On August 3, 2021, ACS withdrew the neglect petition against Plaintiff. (/d.)

On April 16, 2020, Plaintiff initiated the instant suit, alleging that his constitutional rights
were violated by the Defendants in connection with his arrests and the family court proceedings.
Plaintiff alleges that, “because of the Defendant of City of New York [sic] false allegations, the
Plaintiff was forced out of his home subject to multiple arrests, embarrassment, defamation, and
alienation of family.” (Report at 8, 10.) On September 30, 2021, this Court adopted Magistrate
Judge Barbara Moses’s August 23, 2021 Report and Recommendation that Plaintiff's Second
Amended Complaint (“SAC”) be dismissed insofar as it asserted claims on behalf of Plaintiff's
minor children. See Johnson v. City of New York, 2021 WL 4896477, at *6 (S.D.N.Y. Aug. 23,
2021), report and recommendation adopted, 2021 WL 4479384 (S.D.N.Y. Sept. 30, 2021); (ECF
No. 71). After Plaintiff filed the operative Third Amended Complaint, (ECF No. 72), which
Defendants now move to dismiss, Magistrate Judge Moses issued an Order excising certain claims
alleged therein as barred by this Court’s September 30, 2021 ruling. (Report at 10.)
Il. LEGAL STANDARDS
A. Reports and Recommendations
“Although a magistrate may hear dispositive pretrial motions, he may only submit
proposed findings of fact and recommendations for disposition of the matter.” Thomas E. Hoar,
Inc. v. Sara Lee Corp., 900 F.2d 522, 525 (2d Cir. 1990). The district court must review de novo
the portions of a magistrate judge’s report and recommendation to which a party properly objects.
28 U.S.C. § 636(b)(1)(C). However, the district court need not conduct a de novo hearing on the
matter. See United States v. Raddatz, 447 U.S. 667, 675-76 (1980). Instead, it is sufficient that
the district court “arrive at its own, independent conclusion” regarding those portions of the report
to which objections are made. Nelson v. Smith, 618 F. Supp. 1186, 1189-90 (S.D.N.Y. 1985)
(citation omitted).

Portions of a magistrate judge’s report to which no or “merely perfunctory” objections are
made are reviewed for clear error. See Edwards v. Fischer, 414 F. Supp. 2d 342, 346-47 (S.D.N.Y.
2006) (citations omitted). The clear error standard also applies if a party’s “objections are
improper—because they are ‘conclusory,’ ‘general,’ or ‘simply rehash or reiterate the original
briefs to the magistrate judge.’” Stone v. Comm’r of Soc. Sec., No. 17 Civ. 569 (RJS), 2018 WL
1581993, at *3 (S.D.N.Y. Mar. 27, 2018) (citation omitted). Clear error is present when “upon
review of the entire record, [the court is] ‘left with the definite and firm conviction that a mistake
has been committed.’” United States v. Snow, 462 F.3d 55, 72 (2d Cir. 2006) (citation omitted).
“A magistrate’s ruling is contrary to law if it ‘fail[s] to apply or misapplies relevant statutes, case
law, or rules of procedure[.]’” Thai Lao Lignite (Thai.) Co. v. Gov’t of Lao People’s Democratic
Republic, 924 F. Supp. 2d 508, 512 (S.D.N.Y. 2013) (first alteration in original) (citation omitted).
B. Rule 12(b)(6) Failure to State a Claim
“To survive a 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)). The plaintiff
must demonstrate “more than a sheer possibility that a defendant has acted unlawfully”; stating a
facially plausible claim requires the plaintiff to plead facts that enable the court “to draw the
reasonable inference that the defendant is liable for the misconduct alleged.” Jd The factual
allegations pled must therefore “be enough to raise a right to relief above the speculative level.”
Twombly, 550 U.S. at 555 (citation omitted). A district court must first review a plaintiffs
complaint to identify allegations that, “because they are no more than conclusions, are not entitled
to the assumption of truth.” [gbal, 556 U.S. at 679. The court then considers whether the plaintiff s
remaining well-pleaded factual allegations, assumed to be true, “plausibly give rise to an

entitlement to relief.” Ja.; see also Targum v. Citrin Cooperman & Co., No. 12 Civ. 6909 (SAS),
2013 WL 6087400, at *3 (S.D.N.Y. Nov. 19, 2013). In deciding the 12(b)(6) motion, the court
must also draw all reasonable inferences in the non-moving party’s favor. See N.J. Carpenters
Health Fund y. Royal Bank of Scot. Grp., PLC, 709 F.3d 109, 119-20 (2d Cir. 2013).
C. Pro Se Litigants
Submissions of pro se litigants are read liberally and interpreted to “raise the strongest
arguments that they suggest.” Triestman y. Fed. Bureau of Prisons, 470 F.3d 471, 474 (2d Cir.
2006) (quoting Pabon v. Wright, 459 F.3d 241, 248 (2d Cir. 2006)). Courts must also “afford pro
se plaintiffs ‘special solicitude’ before granting motions to dismiss or motions for summary
judgment.” Quadir v. N.Y. State Dep’t of Labor, 39 F. Supp. 3d 528, 536 (S.D.N.Y. 2014) (quoting
Ruotolo v. IRS, 28 F.3d 6, 8 (2d Cir. 1994)).
I. DEFENDANTS’ MOTION TO DISMISS IS GRANTED
A. Plaintiff Continues to Lack Standing to Assert Claims on Behalf of His Children
In the operative Third Amended Complaint, Plaintiff predicates several of his claims on
allegations that Defendants unconstitutionally performed an “invasive, non-routine nude
examination” of his children without parental consent. (See e.g., TAC § 96-101.) As noted
above, this Court has already held that Plaintiff may not vicariously assert a constitutional search
and seizure claim on behalf of his children. See Johnson, 2021 WL 4896477, at *6; (ECF No. 71);
see also Tenenbaum vy. Williams, 193 F.3d 581, 593 n. 13 (2d Cir. 1999) (“Fourth Amendment
rights are personal rights, which, like some other constitutional rights, may not be vicariously
asserted”) (quoting Alderman v. United States, 394 U.S. 165, 174 (1969)); Southerland v. City of
New York, 667 F.3d 87, 103 (2d Cir. 2012) (“A Fourth Amendment child-seizure claim belongs
only to the child, not to the parent.”); Hunter v. Child Protective Servs. of Niagara Cnty., No. 20

&

Civ. 18 (LJV) (MJR), 2021 WL 2368024, at *14 (W.D.N.Y. Feb. 22, 2021), report and
recommendation adopted sub nom. Hunter v. McMahon, 2021 WL 1996772 (W.D.N.Y. May 19,
2021) (applying identical principle to New York State search and seizure claim). Notwithstanding
this Court’s prior ruling, the TAC continues to assert claims on behalf of Plaintiff's children, (TAC
83-86, 96-101, 115), and the Court is aware of no change in the law that makes them now
colorable—a point Plaintiff concedes in his objections, (Pl.’s Objs. at 6). Plaintiff's TAC is
therefore dismissed insofar as it is predicated on an alleged unlawful search and seizure of
Plaintiffs minor children.?
B. Plaintiff's Malicious Prosecution Claim is Dismissed
Plaintiff's First Cause of Action is based on his claim that Defendants maliciously
prosecuted him when they filed the neglect petition against him in family court. In her Report,
Magistrate Judge Moses concluded that Plaintiff may advance a malicious prosecution claim
arising from his family court proceedings, but that the claim nevertheless fails for pleading
deficiencies. (Report at 17-25.) As an initial matter, neither Plaintiff nor Defendants objected to
that portion of the Report which found that Plaintiff may advance a malicious prosecution claim
premised on a civil, family court proceeding and, seeing no clear error in that ruling, this Court
adopts it. Plaintiff does object, however, to the Report’s recommendation that his claim be
dismissed for his failure to adequately plead a lack of probable cause or malice. Accordingly, this
Court reviews those issues de novo.
1. Plaintiff Fails to Adequately Plead Lack of Probable Cause or Malice
“In order to prevail on a § 1983 claim against a state actor for malicious prosecution, a
plaintiff must show a violation of his rights under the Fourth Amendment[] and establish the

> Plaintiff's Second, Fourth, and Sixth Causes of action are based, in part, on alleged wrongs to Plaintiffs
children.

elements of a malicious prosecution claim under state law.” Fulton v. Robinson, 289 F.3d 188,
195 (2d Cir. 2002) (citations omitted). To establish a malicious prosecution claim under New
York law, a plaintiff is “required to show the following: (1) the defendant initiated a prosecution
against plaintiff, (2) without probable cause to believe the proceeding can succeed, (3) the
proceeding was begun with malice, and (4) the matter terminated in plaintiff's favor.” Rentas v.
Ruffin, 816 F.3d 214, 220 (2d Cir. 2016) (quotation omitted).
Given a careful review of the pleadings, Plaintiff has not set forth two of the necessary four
elements of his claim. First, Plaintiff has failed to plausibly plead a lack of probable cause. In the
context of a malicious prosecution claim, probable cause “is the knowledge of facts, actual or
apparent, strong enough to justify a reasonable man in the belief that he has lawful grounds for
prosecuting the defendant in the manner complained of.” Rounseville v. Zahl, 13 F.3d 625, 629
(2d Cir. 1994) (citation omitted). “[T]he existence of probable cause is a complete defense to a
claim of malicious prosecution in New York.” Savino v. City of New York, 331 F.3d 63, 72 (2d
Cir. 2003).
Plaintiff's assertion that Defendants lacked probable cause to institute the family court
proceedings is entirely undercut by the facts and circumstances alleged in the TAC and other
documents Plaintiff has placed before this Court. As noted in the Report, the neglect petition was
based on the statements of A.O.M. herself, her mother, and her younger sister V.J., all of whom
reported that Plaintiff had assaulted ALOM. (Report at 22.) Specifically, A.O.M. told NYPD and
ACS officers that Plaintiff had grabbed her “by her sweatshirt and dragged her out of the bedroom
and into the living room.” (/d.) This statement was corroborated by A.O.M.’s mother and V.J.
A.O.M. further reported that she developed “pain around her neck” and “a hard time
speaking” as a result of the incident, and that Plaintiff had been violent with her twice before, once

grabbing her by the hair to throw her out of the room and once striking her face and causing her
lip to bleed. (/d.) This record clearly supports Defendants’ initial finding of probable cause and
filing of the neglect petition. See, e.g, Martinez v. Simonetti, 202 F.3d 625, 634 (2d Cir. 2000)
(“We have previously held that police officers, when making a probable cause determination, are
entitled to rely on the victims’ allegations that a crime has been committed.”); Curley v. Village of
Suffem, 268 F.3d 65, 70 (2d Cir. 2001) (“When information is received from a putative victim or
an eyewitness, probable cause exists.”); Singer v. Fulton Cnty. Sheriff, 63 F.3d 110, 119 (2d Cir.
1995) (“An arresting officer advised of a crime by a person who claims to be the victim ... has
probable cause to effect an arrest...”). In addition to A.O.M.’s complaint and her mother and
sister’s corroboration, Defendants’ actions are reinforced by redness, scratches, and bruises NYPD
officers and ACS caseworkers directly observed on A.O.M.’s neck following the alleged incident.
(Report at 22.)
Further, as the Report recognizes, “the issuance of a temporary injunction or similar
judicial recognition of the merit of the underlying case”—such as the order of protection issued by
the family court in Plaintiff's case—“creates a presumption of probable cause and places upon the
plaintiff the burden of pleading facts sufficient to overcome it.” Emanuel v. Griffin, No. 13 Civ.
1806 (IMF), 2015 WL 1379007, at *9 (S.D.N.Y. Mar. 25, 2015) (quoting Butler v. Ratner, 210
A.D.2d 691, 693-94 (3d Dep’t 1994)); see also Grullon vy. Admin. for Children’s Servs., No. 18
Civ. 3129 (LJL), 2021 WL 981848, at *11 (S.D.N.Y. Mar. 16, 2021); Boyd v. City of N.Y., 336
F.3d 72, 76 (2d Cir. 2003) (presumption of probable cause created by grand jury indictment). That
presumption “is rebuttable, and may be overcome by evidence establishing that the [] witnesses
‘have not made a complete and full statement of facts ... [,] that they have misrepresented or
falsified evidence[,] ... or otherwise acted in bad faith.’” Boyd, 336 F.3d at 76 (quoting Colon v.

City of New York, 60 N.Y.2d 78, 82-83 (N.Y. 1983)). In the context of child-abuse proceedings,
one court has held that the presumption of probable cause arising from a removal order may be
rebutted where the petition for removal “was either intentionally or recklessly false.” Estiverne v.
Esternio-Jenssen, 833 F. Supp. 2d 356, 379 (E.D.N.Y. 2011).
Here, Plaintiff fails to rebut the presumption of probable cause created by the family court
order of protection. Plaintiffs principal complaints are: first, that Defendants failed to consider
that the marks on A.O.M.’s neck may have been the result of acanthosis nigricans, a medical
condition that causes darkening of the skin in the armpits, groin, and neck and from which A.O.M.
suffered; second, that ACS did not interview Plaintiffs babysitter; and third, that various portions
of ACS’s investigation notes identify A.O.M.’s injuries as non-serious. (PI’s. Opp. at 4-7.) As
to Plaintiff's first and second arguments, “[an] alleged failure to conduct further investigation or
apply all procedures that could have been followed ... is insufficient to overcome the presumption
[of probable cause].” Gil v. Cnty. of Suffolk, 590 F.Supp.2d 360, 370 (E.D.N.Y. 2008). To the
contrary, “once a police officer has a reasonable basis for believing there is probable cause, he is
not required to explore and eliminate every theoretically plausible claim of innocence before
making an arrest.” Curley v. Vill. of Suffern, 268 F.3d 65, 70 (2d Cir. 2001) (quotation omitted).
With respect to his third argument, neither Plaintiff's complaint that A.O.M.’s injuries were
deemed non-serious, nor any of the alleged omissions about which Plaintiff complains in his
objections, (see Pl.’s Objs. at 6),* suggest that the submissions in the neglect petition were
“intentionally or recklessly false,” and as such, they do not rebut the presumption of probable cause
afforded the neglect petition.

* Among other facts immaterial to resolution of the instant motion, Plaintiff faults Defendants for failing to
include mention of A.O.M.’s emergency room visit in the neglect petition. (Pl.’s Objs. at 6.)

Ww

In his objections to the Report, Plaintiff also relies, for the first time, on a transcript of a
hearing held in Plaintiff's family court proceedings. (See generally, Pl.’s Objs.) As noted by
Defendants, the transcript constitutes extrinsic material not provided with Plaintiffs pleadings and,
as such, is inappropriate for this Court’s consideration on a motion to dismiss.? Madu, Edozie &
Madu, P.C. v. SocketWorks Ltd. Nigeria, 265 F.R.D. 106, 122-23 (S.D.N.Y. 2010) (“plaintiff may
not shore up a deficient complaint through extrinsic documents submitted in opposition to a
defendant’s motion to dismiss”) (citing Wright v. Ernst & Young LLP, 152 F.3d 169, 178 (2d Cir.
1998)). Even if such consideration were appropriate, however, the evidence from the hearing upon
which Plaintiff relies—that Plaintiff's current partner described him as a “good father” who had
never hit A.O.M. and that A.O.M. did not require medical attention following the alleged incident,
(P1.’s Objs. at 2)}—does not contradict the information used to file the neglect petition and therefore
does not show that the petition was based on “intentionally or recklessly false” submissions. Nor
does the fact that the petition was ultimately dropped in itself demonstrate that the proceedings
were brought for any “wrong or improper” purpose, as Plaintiff suggests throughout his
objections, (see generally, Pl.’s Objs.), because “[w]ere it otherwise, the second and [fourth]
elements of a malicious prosecution claim would be duplicative in most cases.” Emanuel, 2015
WL 1379007, at *9 (citing Broughton v. State, 37 N.Y.2d 451, 457 (N.Y. 1975)).
Separately, the pleadings fail to satisfy the third element of a malicious prosecution claim,
malice, which requires showing “‘a wrong or improper motive, something other than a desire to see
the ends of justice served.” Fulton, 289 F.3d at 198; see also Lowth v. Town of Cheektowaga, 82
F.3d 563, 573 (2d Cir. 1996). The TAC is utterly devoid of any non-conclusory allegation that
Plaintiff's family court proceedings were motivated by malice. With no factual elaboration, the

> Accordingly, Plaintiffs request that this Court take judicial notice of the transcript, (Pl.’s Objs. at 8), is
denied.

Ar

TAC’s only relevant allegations baldly state that Defendants “acted maliciously,” that their actions
were “done ... with malice,” and that they “maliciously commenced” the family court proceedings.
(TAC § 74, 79, 91, 92.) Such pleading amounts to nothing more than a bare recitation of the
elements of a cause of action and is insufficient to survive a motion to dismiss.
Because Plaintiff fails to plead any facts showing that his family court proceedings were
begun either with malice or without probable cause, his First Cause of Action is dismissed.°
C. Plaintiff's Catch-all Section 1983 Claim is Dismissed
Plaintiff's Second Cause of Action is raised pursuant to 42 U.S.C. § 1983 and alleges
violations of his Fourth and Fourteenth Amendment rights. This cause of action fails to provide
Defendants, or this Court, notice regarding the substance of or factual basis for the claim and must
therefore be dismissed. It is well-established that “[s]ection 1983 itself creates no substantive
rights; it provides only a procedure for redress for the deprivation of rights established elsewhere.”
Sykes v. James, 13 F.3d 515, 519 (2d Cir. 1993) (citation omitted). Plaintiff must therefore be
specific as to which of his constitutional rights were violated in order to provide Defendants with
“fair notice of what the claim is and the grounds upon which it rests.” Leibowitz v. Cornell Univ.,
445 F.3d 586, 591 (2d Cir. 2006). Plaintiff claims that Defendants violated his constitutional rights
when they “failed to intervene in each other’s misconduct” and established a “falsified version of
the facts surrounding the arrest and/or neglect petition of the Plaintiff,” (TAC §§ 80-88), but he
has not shown how these harms are separate and apart from his other, more specific, claims for

© Because this Court finds sufficient probable cause to justify the initiation of the family court proceedings,
it adopts the Report’s finding that Defendant Alama is entitled to qualified immunity. (See Report at 26);
see also Amore v. Novarro, 624 F.3d 522, 536 (2d Cir. 2010) (officers are entitled to qualified immunity if
they have probable cause to make arrests). This Court also adopts Magistrate Judge Moses’s
recommendation that Defendants Hansell and Blaise be dismissed for Plaintiffs failure to plead non-
conclusory facts suggesting that they had any involvement in the filing of the neglect petition. (Report at
26-28.)

19

malicious prosecution and failure to intervene (which he also alleges to be violations of his Fourth
and Fourteenth Amendment rights). This claim is therefore dismissed, as Plaintiff has not
adequately pleaded a plausible cause of action distinct from his remaining claims. See Brandon vy.
City of New York, 705 F.Supp.2d 261, 264, 268-69 (S.D.N.Y. 2010) (dismissing “catchall” claim
for violation of “federal civil rights under the First, Fourth, Fifth, Eighth, and Fourteenth
Amendments” for failing to “set forth a plausible cause of action” or provide fair notice).
D. Plaintiff's Monell Claim is Dismissed
Plaintiff's sixth cause of action is for Monell liability based on deliberately indifferent
policies, practices, and customs. (TAC {J 108-16). As an initial matter, Plaintiff's Monell claim
must be dismissed because, for the reasons discussed above, he has failed to allege any underlying
constitutional violation. See Segal v. City of N.Y., 459 F.3d 207, 219 (2d Cir. 2006) (Monell does
not provide an independent separate cause of action against a municipality; rather, “it extends
liability to a municipal organization where that organization’s failure to train, or the policies or
customs that it has sanctioned, led to an independent constitutional violation”).
Even if Plaintiff had sufficiently pled a constitutional violation, he still has not plausibly
alleged a claim for Monell liability. In order to maintain a 42 U.S.C. § 1983 action against a
municipal defendant, a plaintiff must identify a municipal “policy or custom” from which the
alleged injury arose. Monell v. Dep’t of Social Svcs., 436 U.S. 658, 694 (1978). One of the ways
courts have found allegations sufficient to establish a policy or custom is when “an act performed
pursuant to a custom that has not been formally approved by an appropriate decisionmaker ... is so
widespread as to have the force of law.” Bd. of Cnty. Comm’rs v. Brown, 520 U.S. 397, 404
(1997); see also Kern v. City of Rochester, 93 F.3d 38, 44 (2d Cir. 1996) (noting that “persistent
and widespread” practices of city officials may constitute a municipal custom). A plaintiff may

12

also plead the existence of a custom or policy based on governmental reports documenting
constitutional deficiencies or misconduct, Felix v. City of New York, 344 F. Supp. 3d 644, 658
(S.D.N.Y. 2018) (collecting cases), or “by citing to complaints in other cases that contain similar
allegations,” Gaston v. Ruiz, No. 17 Civ. 1252 (NGG) (CLP), 2018 WL 3336448, at *6 (E.D.N.Y.
July 6, 2018). Finally, municipal liability can also be based on a showing of deliberate indifference
to a recurring situation “where a local government is faced with a pattern of misconduct and does
nothing, compelling the conclusion that the local government has acquiesced in or tacitly
authorized its subordinates’ unlawful actions.” Reynolds v. Giuliani, 506 F.3d 183, 192 (2d Cir.
2007) (citing Jett v. Dallas Indep. Sch. Dist., 491 U.S. 701, 737 (1989)).
As the Report correctly notes, (see Report at 28), the TAC does none of these things. While
Plaintiff makes conclusory allegations that the City of New York developed and maintained
policies and customs exhibiting “deliberate indifference” to the rights of citizens, including by
enacting a policy and custom of “filing false neglect petitions, breaking up families, and having
good mothers and fathers arrested,” as well as interviewing and forcing children into medical
examinations without parental consent, (TAC §§ 113, 115), he does not offer any examples of
similar misconduct in other cases. As such, Plaintiff has offered no facts from which it can be
inferred that the conduct complained of is “widespread,” “pervasive,” or part of a “pattern.” His
Monell claim therefore fails.
E. This Court Declines to Exercise Supplemental Jurisdiction Over Plaintiff's State Law
Claims
Having dismissed claims over which this Court has original jurisdiction, this Court adopts
the Report’s recommendation and declines to exercise supplemental jurisdiction over Plaintiff's
claims under Third, Fourth and Fifth Causes of Action brought under state law. (Report at 29.)

1A

IV. CONCLUSION
Plaintiff's objections are OVERRULED and Magistrate Judge Moses’s Report is
ADOPTED in full. Defendant’s motion to dismiss, (ECF No. 76), is GRANTED.’ The Clerk of
the Court is directed to close the motion accordingly.

Dated: September 21, 2022
New York, New York
SOARDERED.
□□□
CAG, & Dai 4
R . DANIELS
United States District Judge

’ This Court agrees with Magistrate Judge Moses’s recommendation that leave to amend should be denied,
as Plaintiff has already had multiple opportunities to correct his pleading deficiencies. (Report at 29-30.)

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10344543. Public record. Not legal advice.