The opinion
UNITED STATES DISTRICT COURT DOCUMENT
SOUTHERN DISTRICT OF NEW YORK | ELECTRONICALLY FILED ||
JAVONE BROWN, UATE TEED! □□
Plaintiff,
No. 20-cv-10846 (CM)
~against-
CITY OF NEW YORK, et al.,
Defendants.
DECISION AND ORDER GRANTING IN PART AND DENYING IN PART
DEFENDANTS’ MOTION FOR JUDGMENT ON THE PLEADINGS
McMahon, J.
Plaintiff Javone Brown (“Plaintiff”) brings this action under 42 U.S.C. §§$ 1983 and 1988
against the City of New York (“City”), the New York City Police Department (“NYPD”), and six
anonymous individuals employed by the NYPD (“Individual Defendants”), seeking relief for
alleged violations of his Fourth, Fifth, and Fourteenth Amendment rights. Plaintiff contends that
these violations stem from a series of unlawful actions, including a forcible strip search and two
physical assaults, relating to his June 9, 2018 arrest for drug possession.
Defendants City of New York and New York City Police Department have filed a motion
for judgment on the pleadings pursuant to Federal Rule of Civil Procedure 12(c), arguing that
Plaintiff's complaint (“Compl.”) does not state a claim upon which relief can be granted and that
the NYPD cannot be sued. See Dkt. Nos. 3, 37. That motion is granted in part, denied in part.
BACKGROUND
I. Parties
Plaintiff Javone Brown is an African-American male, residing in New York County.
Compl. ¥ 16.
Defendants Officers John Doe #1-4, Jane Doe #1, and Sergeant John Doe #1 were at all
relevant times employed by the NYPD. /d. at {J 11-13. On September 12, 2022, the Court denied
Plaintiff's motion to amend the complaint to identify the Individual Defendants as futile, ordering
that “[t]he only claims that will proceed are Plaintiff's claims against New York City, which was
timely sued under federal law.” See Dkt. No. 36. Unfortunately, the Court neglected to formally
dismiss the complaint as against the Individual Defendants. it corrects that omission here, and
respectfully directs the Clerk of Court to terminate the Individual Defendants as parties to this
matter.
Defendant City of New York is a municipal entity that maintains the New York City Police
Department. Compl. { 9. Plaintiff has sued the City under a theory of municipal liability for the
actions of the NYPD and the Individual Defendants. See Monell v. Dep’t of Social Servs. of City
of New York, 436 U.S. 658 (1978). Plaintiff has separately sued the NYPD as the City’s agent in
the area of law enforcement. Plaintiff's claims against the NYPD are dismissed because the NYPD
is a non-suable entity. N.Y. City Charter ch. 17, § 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 also Paige-Fl
y. Herbert, 735 Fed. Appx. 753, 755 (2d Cir. 2018); Singleton v. Bragg, No. 23-cv-701, 2023 WL
2457707, at *2 (S.D.N.Y. Mar. 10, 2023). The Clerk of Court is respectfully directed to terminate
the NYPD as party to this matter.
II. Factual Allegations
On the evening of June 9, 2018, Plaintiff was a passenger in a friend’s car. Compl. { 17.
At approximately 10:00 p.m., the car carrying Plaintiff was stopped by the Individual Defendants
at the corner of 9" Street and Avenue D in Manhattan. Jd. Plaintiff was directed by the officers to
step out of the vehicle. Jd. at 18. When Plaintiff asked for a reason, he was advised that there was
an outstanding warrant for his arrest. Jd. There was no such warrant. Jd. Plaintiff was subsequently
detained and arrested by the Individual Defendants. Jd.
During the course of the arrest, the Individual Defendants physically assaulted Plaintiff. /d.
at | 19, Plaintiff was punched, kicked, and stepped on multiple times by the arresting officers. Id.
As aresult of the assault, Plaintiff sustained substantial and serious bodily injury, including trauma
to his chest, ribs, and right hand. fa.
Following the arrest and while in police custody, Plaintiff was forcibly strip searched and
anally probed, Id. at 21. After the searches, several officers entered into Plaintiff's cell, removed
their body cameras, and physically assaulted Plaintiff a second time. Jd. at | 22. Plaintiff's injuries
were so severe that an ambulance was required to take him to the hospital so that he could receive
medical attention. /d. As a result, Plaintiff suffered a litany of physical, emotional, and financial
injuries, including pain and suffering, mental anguish, shock, fright, physical pain, humiliation,
and embarrassment. /d. at □ 24.
Plaintiff later pleaded guilty to possession of drugs discovered in the course of the search
and seizure described above. Jd, at 23.
If. Procedural Background
Plaintiff commenced the instant action on December 28, 2020, alleging four separate
claims under 42 U.S.C. §§ 1983, 1988: unlawful search and seizure, excessive force, deprivation
of liberty, and violation of equal protection. See Dkt. No. 3. On July 27, 2022, Plaintiff filed a
jetter motion seeking an extension of time to file an amended complaint, which this Court denied
as futile. See Dkt. Nos. 34, 36. On November 2, 2022, the City and NYPD filed a motion for
judgment on the pleadings pursuant to Federal Rule of Civil Procedure 12(c). See Dkt. Nos. 37—
39.
STANDARD
Federal Rule of Civil Procedure 12(c) provides that “[a]fter the pleadings are closed—but
early enough not to delay trial—_a party may move for judgment on the pleadings.” Fed. R. Civ. □
12(c). “The standard for granting a Rule 12(c) motion for judgment on the pleadings is identical
to that [for granting] a Rule 12(b)(6) motion for failure to state a claim.” Lynch v. City of New
York, 952 F.3d 67, 75 (2d Cir, 2020) (quoting Patel v. Contemporary Classics, 259 F.3d 123, 126
(2d Cir. 2001)). In deciding such a motion, a court presumes all well-pleaded facts to be true and
draws all reasonable inferences in favor of the pleader. Johnson v. Rowley, 569 F.3d 40, 43 (2d
Cir. 2009).
To survive a motion for judgment on the pleadings, “a complaint must contain sufficient
factual matter . . . 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 misconduct alleged.” id. (citing Twombly,
550 U.S. at 556). The complaint “does not need detailed factual allegations,” but must provide
“more than labels and conclusions, and a formulaic recitation of the elements of a cause of action.”
Twombly, 550 U.S. at 555. Thus, unless a plaintiff's well-pleaded allegations have “nudged [its]
claims across the line from conceivable to plausible, [the plaintiffs] complaint must be dismissed.”
Id. at 570; Iqbal, 556 US. at 680.
DISCUSSION
1 The Court May Consider Plaintiff’s Medical Records in Ruling on the Instant
Motion, But Properly Disregards Other Facts Alleged in Plaintiff's Opposition
Brief
Plaintiff presents three exhibits affixed to his Opposition Brief (“Opp.”): first, a
spreadsheet of the NYPD’s Misconduct Complaint Database relating to the 9" Precinct for 2006
— 2018; second, a news article concerning limited access to disciplinary records; and third,
Plaintiff's medical records pertaining to his treatment post-arrest. See Dkt. Nos. 47, 47-2, 47-3,
47-4. This evidence, Plaintiff contends, demonstrates an “illegal predilection [for racial profiling]
that has now been settled as a pattern, a widespread custom that Defendants are undeniably aware
of.” Opp. 5. It further “proves that racially motivated stops, arrests, and abuse of authority incidents
are the ‘de facto’ rule for the NYPD,” and that “Defendants [City and NYPD] condone the illegal
activity of their employees” by failing to reprimand bad actors. id. at 6.
In their Reply Brief, Defendants ask that these exhibits be ignored by the Court because
they were not attached to, referenced in, or otherwise integral to the complaint, and because
Plaintiff may not amend his complaint via extrinsic evidence submitted, for the first time, in
opposition to Defendant’s motion. See Dkt. No. 51 at 1-3; see also Jennings v. Hunt Cos., 367 □□
Supp. 3d 66, 70-71 (S.D.N.Y. 2019) (collecting cases) (confirming that plaintiffs may not amend
their complaints via briefing on a motion).
Whether Plaintiffs exhibits are properly considered by the Court comes prior to any
assessment of their validity. When ruling on a 12(c) motion, a court is tasked with assessing
whether the contents of the pleadings are sufficient to rendering judgment on the merits. See Fed.
R. Civ. P. 7(a), 12(c). It considers “the complaint, the answer, any written documents attached to
them, and any matter of which the court can take judicial notice for the factual background of the
case.” L-7 Designs, Inc. v. Old Navy, LLC, 647 F.3d 419, 422 (2d Cir. 2011) (quoting Roberts v.
Babkiewicz, 582 F.3d 418, 419 (2d Cir. 2009)). For the reasons that follow, the Court will disregard
the spreadsheet of police misconduct (“Exhibit 1”) and news article (“Exhibit 2”) but will consider
Plaintiffs medical records (left untitled on the docket, hereinafter “Exhibit 3”) when ruling on the
instant motion.
“A complaint is deemed to include any written instrument attached to it as an exhibit,
materials incorporated in it by reference, and documents that, although not incorporated by
reference, are sintegral’ to the complaint.” Sira v. Morton, 380 F.3d 57, 67 (2d Cir. 2004) (citations
omitted). Although Plaintiff neglected to file his medical records when initiating the case, Exhibit
3 merits consideration by the Court as integral to the pleading. “A document is integral to the
complaint ‘where the complaint relies heavily upon its terms and effect.’” Buari v. City of New
York, 530 F. Supp. 3d 356, 377 (S.D.N.Y. 2021) (quoting Goel v. Bunge, Lid., 820 F.3d 554, 559
(2d Cir. 2016)). “Typically, an integral matter is a contract, agreement, or other document essential
to the litigation.” Palin v. N.Y. Times Co., 940 F.3d 804, 811 (2d Cir. 2019). As Plaintiff's medical
records are vital to assessing any damages Plaintiff might claim to his person, they are essential to
the litigation, integral to the pleading, and properly considered by the Court.
The same, however, cannot be said for Exhibits 1 or 2. The complaint’s references to
“ceonstitutional abuses and violations” by Defendants City and NYPD, while possible to
substantiate from the proffered factual allegations, do not tum on the presentation of these
documents. Compl. J 29. Additionally, neither Exhibit 1 nor 2 was incorporated by reference in
the complaint. “A document is incorporated by reference where the complaint ‘make[s] a clear,
definite and substantial reference’ to it.” Buari, 530 F. Supp. 3d at 376-77 (quoting Thomas v.
Westchester Cnty. Health Care Corp., 232 F. Supp. 2d 273, 275-76 (S.D.N.Y, 2002)). Plaintiff's
complaint makes no reference to either Exhibit 1 or 2—let alone a clear, definite, or substantial
one. Moreover, it is evident that Plaintiff did not contemplate or rely upon either exhibit—
foreclosing the possibility that they be properly considered by the Court as background material.
See Chambers v. Time Warner, Inc., 282 ¥.3d 147, 153 (2d Cir. 2002). These documents are
evidence, pure and simple—to be considered on a motion for summary judgment but not on a
motion to dismiss.
HI. The Motion for Judgment on the Pleadings Is Otherwise Denied Because Plaintiff
Alleges Facts Sufficient to State a Monell Claim Against the City
“To state a claim under § 1983, a plaintiff must allege the violation of a right secured by
the Constitution and laws of the United States, and must show that the alleged deprivation was
committed by a person acting under color of state law.” West v. Atkins, 487 U.S. 42, 48 (1988);
see also Vega v. Hempstead Union Free Sch. Dist., 801 F.3d 72, 87-88 (2d Cir. 2015), Local
governments only exercise power “possessed by virtue of state law,” and thus act by definition
under color of state law. West, 487 U.S. at 49 (quoting United States v. Classic, 313 U.S, 299, 326
(1941)). As such, local governments “may be sued for constitutional deprivations visited pursuant
to governmental ‘custom’ even though such a custom has not received formal approval through
the government’s official decisionmaking channels.” Monell, 436 U.S. at 690-91. These
constitutional deprivations must be directly caused by the actions of the municipality, whether
official or customary. Id. at 691-92; see also Amnesty America v. Town of West Hartford, 362 F.3d
113, 135 (2d Cir, 2004).
Municipalities “cannot be held liable under § 1983 on a respondeat superior theory.”
Monell, 436 U.S. at 691; see also Buari, 530 F. Supp. 3d at 397. To state a claim under § 1983
against the City, Plaintiff must plead sufficient facts that demonstrate “(1) an official policy or
custom that (2) causes the plaintiff to be subjected to (3) a denial of a constitutional right.” Brandon
v. City of New York, 705 F. Supp. 2d 261, 276 (S.D.N.Y. 2010) (quoting Batista v. Rodriguez, 702
F.2d 393, 397 (2d Cir. 1983)); see also Agosto v. N.Y.C. Dept of Educ., 982 F.3d 86, 97 (2d Cir.
2020). Plaintiff need not sue any individual tortfeasors for there to be a finding of municipal
liability, as long as he can “plead and prove against the municipality that municipal actors
committed the tort against the plaintiff and that the tort resulted from a policy or custom of the
municipality.” Askins v. Doe, 727 F.3d 248, 253 (2d Cir. 2013); see also Small v. City of New York,
No, 9-cv-1912, 2022 WL 1261739, at *12 (S.D.N.Y. Apr. 28, 2022).
Plaintiff has elected to satisfy the “‘policy, custom or practice’ requirement” for Monell
liability in two ways: first, by alleging “a failure of policymakers to provide adequate training or
supervision to subordinates to such an extent that it amounts to deliberate indifference to the rights
of those who come into contact with the municipal employees;” and second, by alleging “a practice
so consistent and widespread that, although not expressly authorized, constitutes a custom or usage
of which a supervising policy-maker must have been aware.” Brandon, 705 F. Supp. 2d at 276;
see also Jones v. Westchester Cnty., 182 F. Supp. 3d 134, 158 (S.D.N.Y. 2016). These allegations
will be assessed in turn.
a. Failure to Train
Plaintiff has plausibly pleaded facts sufficient to establishing a failure of policymakers to
provide adequate training or supervision to their subordinates. A municipality may be held liable
under § 1983 for constitutional violations resulting from its failure to train its police when the
failure “amounts to deliberate indifference to the rights of persons with whom the police come into
contact.” See City of Canton v. Harris, 489 U.S. 378, 388 (1989). To plead deliberate indifference,
Plaintiff must allege that: (1) a policymaker knows to a moral certainty that her employees will
confront a given situation; (2) the situation either presents the employee with a difficult choice of
the sort that training or supervision will make less difficult or that there is a history of employees
mishandling the situation; and (3) the wrong choice by the city employee will frequently cause the
deprivation of a citizen’s constitutional rights. Jones v. City of New York, No. 13-cv-929, 2016
WL 1322443, at *8 (S.D.N.Y. Mar. 31, 2016) (quoting Jenkins v. City of New York, 478 F.3d 76,
94 (2d Cir. 2007)) (quotation marks omitted).
Plaintiff has met this burden. City policymakers are well aware that their police officers
routinely confront situations of the type Plaintiff alleges, that these situations clearly present
officers with difficult choices of the sort that training and adequate supervision would make less
difficult, and that the wrong choices by officers will frequently cause the deprivation of a citizen’s
constitutional rights. Cf Harris, 489 US. at 390 n.10. Of course, merely stating that the
municipality’s failure to train caused Plaintiff's constitutional injuries does not suffice. 7riano v.
Town of Harrison, 895 F. Supp. 2d 526, 540 (S.D.N.Y. 2012); see also Simms vy. City of New York,
480 Fed. Appx. 627, 631 n.4 (2d Cir. 2012). Plaintiff cannot be expected to identify with precision
the various deficiencies in the City’s training program prior to discovery. Asking him to do so now
would defeat the purpose of having a failure to train theory of Monell liability. Here, Plaintiff
alleges no fewer than seven separate violations of his constitutional rights during the course of a
single arrest. That plausibly suggests a failure to train. Therefore, Plaintiff may go forward on a
failure to train theory.
b, Unwritten Custom or Persistent Pattern
Plaintiff has also plausibly pleaded facts sufficient to establishing an unwritten custom or
persistent pattern of civil rights violations. Shom of any conclusory material, the complaint
contains numerous allegations of seriously objectionable conduct: a racially-motivated traffic stop,
unlawful arrest without reasonable suspicion, impermissible searches, and multiple attacks on
Plaintiff's person. Compl. {{ 17-19. “To prevail on this theory of municipal liability, however, a
plaintiff must prove that the custom at issue is permanent and well-settled.” Tieman v. City of
Newburgh, No. 13-cv-4178, 2015 WL 1379652, at *16 (S.D.N.Y. Mar. 26, 2015). Additionally,
single incident alleged in a complaint, especially if it involved only actors below the
policymaking level, does not suffice to show a municipal policy.” Ricciuti v. N.Y.C. Transit Auth.,
941 F.2d 119, 123 (2d Cir. 1991); see also Jones, 182 F. Supp. 3d at 159 (“A Monell claim cannot
go forward based on. . . claims regarding a single incident without more evidence that connects
this incident to a municipal policy or practice.”} (quoting Pittman y. City of New York, No. 14-cv-
4140, 2014 WL 7399308, at *7 (E.D.N.Y. Dec. 30, 2014)).
Plaintiff attempts to answer this charge in the Opposition Brief, arguing that the original
traffic stop constitutes “a practice of racial profiling . . . against which Defendants have a clear
standard policy and custom,” Opp. 4, and that “[s]tatistical evidence proves that racially motivated
stops, arrests, and abuse of authority incidents are the ‘de facto’ rule for the NYPD.” Jd. at 6. Of
course, merely positing the existence of a de facto policy of “unlawfully interfering with and/or
using excessive force against [iJndividuals” does not make it so. Compl. { 31. And recourse to
statistical data, while potentially useful, cannot factor into this analysis for the reasons already
discussed. See supra Section I. But Plaintiff has not alleged just a mere single incident of municipal
employees violating his constitutional rights; he has alleged (by this Court’s estimation) no fewer
than seven separate violations, conducted by multiple municipal employees, from which municipal
liability can be plausibly inferred.
It remains to be seen whether City policymakers truly have the policy Plaintiff contends,
or whether they are actually indifferent to the alleged constitutional violations taking place under
their watch. But we are not at present dealing with the merits, simply the pleadings. And at this
stage, Plaintiff has sufficiently alleged a Monell claim against the City to survive dismissal.
CONCLUSION
For the reasons set forth above, the City of New York and New York City Police
Department’s motion for judgment on the pleadings is granted in part and denied in part.
The Clerk of the Court is respectfully directed to terminate the Individual Defendants and
the New York City Police Department as parties to this action and to remove the motion at Dkt.
No. 37 from the Court’s list of pending motions. Plaintiff Javone Brown’s claims against the City
of New York will proceed.
This constitutes the decision and order of the Court. It is a written opinion.
Dated: June 14, 2023 [‘lte L
BY ECF TO ALL COUNSEL US.D..