Owens v. The County of Monroe

UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF NEW YORK

PHILLIP H. OWENS,

Plaintiff,

Case # 21-CV-6445-FPG

v.

DECISION AND ORDER

THE COUNTY OF MONROE,

Defendant.

INTRODUCTION

This case involves a dispute between an individual, Phillip H. Owens (“Plaintiff”), and the

County of Monroe (“Defendant”), alleging that Monroe County District Attorney (“DA”),

employed unlawful administrative policies that caused Plaintiff to be wrongfully convicted of a

crime he did not commit and to spend time in prison as a result. See ECF No. 1 (“Compl.”).

Because the DA is the policymaker for the Defendant, Plaintiff asserts that Defendant is liable

pursuant to 42 U.S.C. § 1983 and Monell v. City of New York, 436 U.S. 658 (1978). Compl. ¶ 7.

Defendant filed a motion to dismiss Plaintiff’s claims on the grounds that Plaintiff failed

to meet his pleading burden in articulating a claim for Monell liability against the Defendant. ECF

No. 5. For the reasons set forth below, Defendant’s motion is GRANTED IN PART and DENIED

IN PART.

BACKGROUND1

On May 31, 2021, Tara Owens, Plaintiff’s estranged wife, called 911 and falsely reported

that Plaintiff had fired gun shots from a convenience store at her and their three-year-old son.

Compl. ¶ 18. Specifically, Tara told the police that an hour earlier, she was driving her green

1 Unless otherwise noted, the following allegations are accepted as true from Plaintiff’s Complaint.

Lexus down Magnolia Street, in Rochester, New York, with her son, on her way to her mother-in-

law’s house, when Plaintiff fired shots at her. Id. ¶ 19. At trial, Tara elaborated that she was

driving her green Lexus from Shelter Street, down Manila Street, and then down Magnolia Street

towards Genesee Street. Id. ¶ 20, 21. Then, Tara testified that she waited at an intersection. Id. ¶

22. While waiting, she heard a gunshot and turned to see Plaintiff shooting at her. Id. ¶ 23.

However, Tara and her son were not present at the corner of Genesee Street and Magnolia

Street on May 31, 2012 in a green Lexus, nor was Plaintiff. Id. ¶¶ 27, 28. Surveillance video from

a convenience store at the location did not show the alleged shooting, however, it did show that

minutes prior to the alleged shooting, Tara and two young boys were inside the store. Id. ¶¶ 29-

31. Then, the two boys exited the store and got into a blue Nissan Altima. Compl. ¶ 32. After

purchasing a beverage, Tara left the store and got into the blue Nissan Altima. Id. ¶¶ 33, 34. At

3:24:16 p.m., Tara pulled out of the parking lot in the blue Nissan Altima and drove away. Id. ¶

36. Yet, according to the prosecution, at 3:26:02 p.m., Tara arrived back at the store, driving from

the opposite direction, in a green Lexus with just her son in the back seat, and a shooting occurred.

Id. ¶ 37. This is contrary to the video footage. Id. ¶¶ 38, 39.

Indeed, prior to trial, Tara recanted her statements to police and advised that she could not

testify against Plaintiff because she did not see him shoot at her. Id. ¶¶ 40-43. In response,

prosecutor William Gargan told Tara that if she did not testify, she would be arrested for perjury

and Child Protective Services would remove her children. Compl. ¶ 44. Pursuant to Defendant’s

policy, no notes were taken during Tara’s meeting with Mr. Gargan, nor was the statement

disclosed to Plaintiff or his attorney. Id. ¶¶ 45, 47. Furthermore, the surveillance video, which

showed Tara’s initial claim to the police was false, was never disclosed to Plaintiff or his attorney

in viewable format. Id. ¶ 51.

Despite this lack of disclosure, Plaintiff discovered the discrepancy in Tara’s story when

she testified at trial. See id. ¶¶ 53-59. On cross examination, Tara admitted that her statement to

the police, as recorded, was inaccurate, but that she already corrected it. Id. ¶¶ 60-63. When she

testified that she corrected it, Mr. Gargan objected as she was referring to her meeting with the

prosecutor. Id. ¶¶ 65-66. The objection was sustained. Compl. ¶ 67.

During closing arguments, Mr. Gargan played the entirety of the surveillance footage for

the first time. Id. ¶ 70. Plaintiff noticed that the video showed Tara inside the convenience store

just before the alleged shooting, and also showed two boys exit the store and get into the blue

Nissan Ultima; Tara followed. Id. ¶¶ 76-79. After the prosecution completed closing statements,

Plaintiff’s attorney brought forward proof of actual innocence, including, Tara’s appearance in one

of the video frames, and the identification of the Nissan Ultima as belonging to Tara’s boyfriend’s

mother. Id. ¶ 86, 87. Accordingly, Plaintiff’s attorney asked the court to reopen proof so that he

could cross-examine Tara regarding the video; the court denied the request. Id. ¶¶ 88, 93.

Plaintiff’s attorney then unsuccessfully moved for a mistrial. Id. ¶¶ 93, 94.

The jury acquitted Plaintiff of attempted murder and reckless endangerment but convicted

him of attempted assault in the first degree, criminal possession of a weapon in the second degree

(two counts), and criminal possession of a weapon in the third degree. Compl. ¶ 98. He was

sentenced to concurrent terms of 13 years. Id. ¶ 102.

After trial, Plaintiff moved to set aside the verdict pursuant to CPL § 330.30, which was

denied. Id. ¶¶ 103, 106. On appeal, the DA’s Office conceded that the woman in the video was

Tara. Id. ¶ 109. The DA’s Office further conceded that Plaintiff’s conviction should be reversed

but refused to file a joint CPL § 440 motion. Id. ¶ 112. In response, Plaintiff’s counsel moved to

dismiss the indictment and to expedite Plaintiff’s release on December 29, 2017. Id. ¶ 113. On

March 16, 2018, while the motion was still pending, the Appellate Division reversed Plaintiff’s

conviction and remanded the case for a new trial.2 Compl. ¶ 114.

Prior to re-trial, Tara would not cooperate or discuss the case with Mr. Gargan. Id. ¶ 119.

After a material witness order was issued by the court, Tara was located and required to take the

stand at the re-trial. Id. ¶ 122. When she was called to testify, Tara refused, and ultimately,

asserted her Fifth Amendment right against self-incrimination. See id. ¶¶ 124-128. Finally, Mr.

Gargan admitted he could not proceed, a trial order of dismissal was issued on June 13, 2018, and

Plaintiff was released from jail. Id. ¶¶ 129, 130.

According to Plaintiff, Defendant maintains a policy of not taking notes when interviewing

potential trial prosecution witnesses to “make sure that exculpatory or impeachment evidence . . .

is not recorded . . . [and therefore] not disclosed to the defense.” Id. ¶¶ 131, 32. As a result of this

policy, Mr. Gargan took no notes about Tara’s statement that she did not see Plaintiff shoot at her

and did not disclose that information to Plaintiff or his counsel. Compl. ¶ 139. Due to this policy,

the DA’s Office established a committee in 2020 to attempt to collect impeachment evidence. Id.

¶ 167. Since 2020, the DA’s Office has sent numerous criminal defense attorneys letters

“admitting that in prior criminal prosecutions, their office withheld exculpatory and/or

impeachment evidence of prosecution witnesses.” Id. ¶ 168.

Plaintiff asserts that Defendant also maintains a policy of failing to discipline or sanction

prosecutors who commit misconduct. Plaintiff alleges that Defendant had notice of the misconduct

through the numerous decisions overturning verdicts for various improprieties, including

withholding of materials. Id. ¶ 174. Furthermore, Plaintiff points to Defendant’s failure to identify

any records of attorney discipline as evidence of this policy. Id. ¶ 178, 179.

2 The court reasoned that the video was material evidence directly relevant to determining whether Tara fabricated

her story or was at the scene at the time of the alleged incident. Compl. ¶ 115.

As a result of Defendant’s improper conduct, through the DA’s Office and the DA, Plaintiff

was deprived of various constitutional rights. See generally id.

LEGAL STANDARDS

I. 12(b)(6) Standard

To survive a motion to dismiss under Rule 12(b)(6), “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 for

relief is plausible when the plaintiff pleads facts sufficient to allow the Court to draw reasonable

inferences that the defendant is liable for the alleged misconduct. Id. In reviewing a motion to

dismiss under Federal Rule of Civil Procedure 12(b)(6), the Court must accept as true the factual

allegations in the complaint and draw all reasonable inferences in favor of the plaintiff. See Nechis

v. Oxford Health Plans, Inc., 421 F.3d 96, 100 (2d Cir. 2005). At the same time, the Court is not

required to credit “[l]egal conclusions, deductions, or opinions couched as factual allegations . . .

[with] a presumption of truthfulness.” In re NYSE Specialists Sec. Litig., 503 F.3d 89, 95 (2d Cir.

2007) (internal citations and quotations omitted). The “touchstone for a well-pleaded complaint

under Federal Rules of Civil Procedures 8(a) and 12(b)(6) is plausibility.” In re AOL Time Warner,

Inc. Sec. Litig., 503 F. Supp. 2d 666, 670 (S.D.N.Y. 2007) (citing Twombly, 550 U.S. at 560-61).

To meet this plausibility standard, the factual allegations must permit the Court “to infer more than

the mere possibility of misconduct.” Iqbal, 556 U.S. at 679.

II. Monell Liability

“[A] local government is liable under § 1983 for its policies that cause constitutional torts.”

McMillian v. Monroe Cnty., Alabama, 520 U.S. 781, 784 (1997); see Monell v. Dep’t of Soc.

Servs., 436 U.S. 658, 693 (1978). A plaintiff who seeks to impose liability on local governments

pursuant to 28 U.S.C. § 1983 must demonstrate that “action pursuant to official municipal policy”

caused the injury. Monell, 436 U.S. at 692. “Official municipal policy includes the decisions of

a government’s lawmakers, the acts of its policymaking officials,3 and practices so persistent and

widespread as to practically have the force of law.” Connick v. Thompson, 563 U.S. 51, 61 (2011)

(citing Monell, 436 U.S. at 691) (additional citations omitted). A plaintiff may demonstrate a

policy or custom exists by showing:

(1) a formal policy officially endorsed by the municipality; (2)

actions taken by government officials responsible for establishing

the municipal policies that caused the particular deprivation in

question; (3) 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; or (4) a failure by

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.

Jones v. Westchester County, 182 F. Supp. 3d 134, 158 (S.D.N.Y. 2016) (quoting Brandon v. City

of New York, 705 F. Supp. 2d 261, 276-77 (S.D.N.Y. 2010)).

DISCUSSION

Defendant moves to dismiss the Complaint, arguing that (1) Plaintiff fails to establish a de

facto policy of not disciplining prosecutors for Brady4 violations and presenting false or

misleading argument, evidence or testimony, by citing to other cases that allegedly involve similar

misconduct; (2) Plaintiff fails to sufficiently plead a failure to train claim in that the DA was

deliberately indifferent to the deprivation of rights by failing to discipline prosecutors for Brady

violations; and (3) Plaintiff fails to provide any support for the existence of a policy of directing

3 Defendant does not contest that it can be held liable for the DA’s practices at issue here.

4 Brady v. Maryland, 373 U.S. 83 (1963).

prosecutors not to take notes when interviewing prosecution witnesses or being deliberately

indifferent to such practices. See generally ECF No. 5-3.

In response, Plaintiff maintains that his claims are adequately pled. Specifically, he asserts

that the Brady violation in his case resulted from longstanding deliberate indifference of the DA,

as demonstrated by the DA’s failure to discipline any prosecutor since at least 1998. See generally

ECF No. 9. Additionally, Plaintiff maintains that the Complaint sufficiently alleges that the DA’s

Office trains prosecutors that impeachment materials related to prosecution witnesses do not have

to be disclosed as evidenced, by the recent establishment of a Giglio committee and sending letters

to attorneys regarding exculpatory and impeachment materials previously withheld. Id. The

Court addresses each of Plaintiff’s claims in turn below.

I. Failure to Discipline Prosecutors

A. De Facto Policy

First, Plaintiff asserts that Defendant has (1) a de facto policy of refusing to disclose Brady

material and presenting false and misleading evidence and testimony at trial; and (2) a policy of

failing to discipline5 or sanction trial prosecutors who commit misconduct. Compl. at 18-28. “To

demonstrate a de facto policy or custom through a widespread practice, a plaintiff must ‘show that

the policymaker was aware of a subordinate’s unconstitutional actions, and consciously chose to

ignore them, effectively ratifying the actions.’” Buari v. Ciy of New York, 530 F. Supp. 3d 356,

398 (S.D.N.Y. 2021) (quoting Amnesty America v. Town of West Hartford, 361 F.3d 113, 126 (2d

Cir. 2004) (citations omitted)). Plaintiff may adequately plead the existence of de facto customs

or policies “by citing to complaints in other cases that contain similar allegations.” Gaston v. Ruiz,

5 As discussed herein, the failure to discipline resulting in a violation of constitutional rights and therefore, a “policy”

for purposes of Monell liability is subject to a different standard than that applicable to determining whether a de facto

policy exists. Therefore, this claim will be evaluated under a deliberate indifference theory.

No. 17-CV-1252 (NGG) (CLP), 2018 WL 3336448, at *6 (E.D.N.Y. July 6, 2018) (citing

Osterhoudt v. City of New York, No. 10CV3173(RJD)(RML), 2012 WL 4481927, at *2 (E.D.N.Y.

Sept. 27, 2012)). The cited complaints “must involve factually similar misconduct, be

contemporaneous to the misconduct at issue in [Plaintiff’s] case, and result in an adjudication of

liability.” Buari, 530 F. Supp. 3d at 399 (citations omitted).

In an effort to plead a de facto policy based on a widespread practice of prosecutorial

misconduct including the failure to disclose Brady materials and presenting false and misleading

evidence and testimony at trial, Plaintiff cites various Appellate Division, Fourth Department cases

wherein the court commented on Monroe County prosecutors’ misconduct. See Compl. ¶¶ 180,

185. In addition to the cited cases, Plaintiff indicates that the DA’s Office was aware of many

other instances which led to prosecutions being “thrown out.” See id. ¶¶ 181, 182. Plaintiff cites

to 30 total cases, spanning about 30 years. 18 of the cases cited by Plaintiff involve misconduct

which occurred prior to Plaintiff’s prosecution, the remaining cases involve misconduct which

occurred after Plaintiff’s initial prosecution, but before Plaintiff’s re-trial.

After reviewing each case cited by Plaintiff, the Court finds that he has not sufficiently

pled a de facto policy or custom. In total, only seven cases referenced by Plaintiff involve Brady

violations, id. ¶¶ 180a, 180b, 180k, 180m, 180r, 185j, 185l, which occurred over the course of

about 30 years, see id. ¶ 180r (citing People v. Ausserau, 77 A.D. 2d 152, 154-55 (N.Y. App. Div.

1980)), id. ¶ 185j (citing People v. Carver, 114 A.D.3d 1199 (N.Y. App. Div. 2014)). In other

words, Plaintiff alleges about one similar instance of misconduct involving Brady violations every

four or so years. In addition, five other cases cited by Plaintiff involved prosecutors improperly

eliciting false or misleading testimony. See id. ¶¶ 180c, 180n, 185c, 185d, 185k. Again, the cases

cover a span of almost 20 years. This means that, taking Plaintiff’s allegations as true, he alleges

about one similar instance of misconduct involving false or misleading testimony every four or so

years.

Even drawing all inferences in Plaintiff’s favor, such a small number of similar instances

of misconduct, over the span of multiple decades, does not suggest that the practice is “so

widespread as to have the force of law,” Bd. of Cnty. Comm’rs of Bryan County, Okl. v. Brown,

520 U.S. 397, 404 (1997) (citations omitted), or “so manifest as to imply the constructive

acquiescence of senior policy-making officials,” Sorlucco v. New York City Police Dept., 971 F.2d

864, 871 (2d Cir. 1992) (citations omitted). See, e.g., Buari, 530 F. Supp. 3d at 406 (plaintiff’s 23

cited cases of misconduct occurring over a twenty-year period, was insufficient to establish that

improper practice was so widespread as to have the force of law) (collecting cases). Therefore,

this claim must be DISMISSED.

B. Deliberate Indifference

A Monell claim may also be established by showing a “deliberate indifference” to a risk

that a recurring situation will likely result in a constitutional violation. See Davis v. City of New

York, 75 F. App’x 827, 829 (2d Cir. 2003) (summary order). To establish that a municipality’s

failure amounts to deliberate indifference, the plaintiff must show:

(1) policymaker of the municipality knows to a moral certainty that

its employees will confront a given situation; (2) that 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) that the

wrong choice by the employee will frequently cause the deprivation

of a citizen’s constitutional rights.

Young v. Cnty. of Fulton, 160 F.3d 899, 904 (2d Cir. 1998) (citing Walker v. City of New York,

974 F.2d 293, 297-98 (2d Cir. 1992) (internal quotations and alterations omitted)). Liability for

deliberate indifference can be based on two distinct theories: failure to train or failure to

supervise/discipline. See Amnesty America, 361 F.3d at 127.

Under the failure to supervise or discipline theory, a plaintiff must plead “(1) there was a

pattern of allegations of or complaints about, or a pattern of actual, similar unconstitutional

activity, and (2) the municipality consistently failed to investigate those allegations.” Treadwell

v. County of Putnam, No. 14-cv-10137, 2016 WL 1268279, at *4 (S.D.N.Y. Mar. 30, 2016)

(citations omitted). While a need for greater supervision or discipline “may be demonstrated

through proof of repeated complaints of civil rights violations” that are not followed by a

“meaningful attempt . . . to investigate or to forestall further incidents,” Vann v. City of New York,

72 F.3d 1040, 1049 (2d Cir. 1995), “there is no requirement that complaints result in a formal

finding of misconduct for such complaints to support findings of failure to supervise. . . .” Felix

v. City of New York, 344 F. Supp. 3d 644, 662 (S.D.N.Y. 2018). Moreover, there is no bright-line

rule for how many complaints there must be, or how recent the complaints must be, to put a

municipality on notice of potential liability. Tieman v. City of Newburgh, No. 13 Civ. 4178(KMK),

2015 WL 1379652, at *20 (S.D.N.Y. Mar. 2, 2015). Plaintiff sufficiently pleads such a claim here.

First, Plaintiff demonstrates that the DA’s Office “plainly knew, to a moral certainty, that

ADAs would make probable cause assessments, offer testimonial evidence in court, confront false

or misleading testimony, and acquire Brady material ‘because these are basic facets of an ADA’s

job.’” Buari, 530 F. Supp. 3d at 406 (quoting Bertuglia v. City of New York, 839 F. Supp. 2d, 703

738 (S.D.N.Y. 2012) (citing Walker, 974 F.2d at 300)).

Second, Plaintiff sufficiently demonstrates that Defendant was on notice of misconduct

and failed to investigate and discipline the misconduct. Specifically, Plaintiff’s list of decisions

discussing prosecutorial misconduct “plausibly permits a reasonable inference that [the DA’s

Office] should have been aware or were on notice of” deficiencies with respect to prosecutorial

conduct. Buari, 530 F. Supp. 3d at 406. Plaintiff goes on to sufficiently allege that Defendant

failed to investigate or discipline the misconduct. Specifically, Plaintiff cites to a lack of

disciplinary records concerning instances of misconduct; Plaintiff indicates that in response to

records requested pursuant to the Freedom of Information law, the Defendant responded that it has

no records of any discipline imposed against any attorney at the DA’s Office from January 1, 1998

to present. Compl. ¶ 178. Further, Plaintiff indicates that the DA’s Office had no records of any

discipline imposed after convictions were overturned due to misconduct from January 1, 1998 to

present, id. ¶ 179, nor did the DA’s Office investigate an instance of alleged misconduct or have a

system to oversee supervision and discipline of prosecutors in the office, id. ¶¶ 214, 215.

Finally, it is reasonable to infer that a failure to discipline prosecutors in connection with

prosecutorial misconduct, including the failure to disclose Brady information, would cause

constitutional violations. See Buari, 530 F. Supp. at 406; (citing Walker, 974 F.2d at 300

(“[W]ithholding Brady material will virtually always lead to a substantial violation of

constitutional rights.”); Bertuglia, 839 F. Supp. 2d at 739 (“[W]here an assistant district attorney

commits misconduct . . . or violates their obligations under Brady, those actions will frequently

result in the violation of citizens’ constitutional rights.”)).

Therefore, while Plaintiff’s Monell claim fails under a widespread practice theory, it

survives under a theory of failure to discipline and Defendant’s motion on this ground is DENIED.

II. Disclosure of Impeachment Materials

Finally, Plaintiff asserts that Defendant had a policy of training prosecutors that

impeachment evidence of prosecution witnesses was not required to be disclosed and that

Defendant had a policy of not taking notes when interviewing potential trial prosecution witnesses

to make sure evidence was not recorded and therefore, did not have to be disclosed.

In support of such claims, Plaintiff asserts that the DA’s Office’s creation of a “Giglio

committee” in 2020 demonstrates the existence of such an unlawful policy. See Compl. ¶ 167.

Indeed, Plaintiff asserts that since the establishment of such committee, the DA’s Office has sent

“hundreds of letters to local criminal defense attorneys admitting that in specific cases, exculpatory

and impeachment materials of prosecution witnesses were withheld, which may have caused

defendants to be wrongfully convicted.” ECF No. 9 at 27 (citing Compl. ¶ 168). Plaintiff further

asserts that such policy has been in effect since 1985, when former District Attorney, Howard

Relin, was in office. See Compl. ¶¶ 145, 148. Specifically, Plaintiff asserts that the DA’s Office

would fire employees who raise concerns that evidence was being suppressed or hidden. See id. ¶

147. Plaintiff points to an incident involving Melinda C. Frank, who, according to Plaintiff, was

fired for raising concerns that an ADA was refusing to interview witnesses whose testimony could

potentially aid a defendant, and an incident involving Louis P. Pilato who was allegedly fired for

informing a judge that the ADA handling a claim was violating Brady. Id. ¶¶ 148, 149. Plaintiff

alleges such policies have continued.

The Court finds such allegations to be insufficient to establish a Monell claim here. As

discussed above, “[t]o demonstrate a de facto policy or custom through a widespread practice, a

plaintiff must ‘show that the policymaker was aware of a subordinate’s unconstitutional actions,

and consciously chose to ignore them, effectively ratifying the actions.’” Buari, 530 F. Supp. 3d

at 398 (quoting Amnesty America, 361 F.3d at 126 (citations omitted)). Plaintiff may adequately

plead the existence of de facto customs or policies “by citing to complaints in other cases that

contain similar allegations.” Gaston, 2018 WL 3336448 at *6 (citations omitted).

First, Plaintiff does not cite to any similar cases to support the allegation that the DA’s

Office had a policy of not taking notes here,6 instead, Plaintiff makes conclusory assertions that

such policy exists. See, e.g., Compl. ¶¶ 131-135, 225. This is insufficient to plead a Monell claim.

Connick, 563 U.S. at 61 (Plaintiff must demonstrate that a policy is “so persistent and widespread

as to practically have the force of law”).

The same is true of Plaintiff’s claim that the DA’s Office had a policy of not disclosing

impeachment evidence. Even accepting as true Plaintiff’s allegations that two former ADAs were

fired from their position in retaliation for disclosing improper practices, that alone does not support

the claim that failing to disclose information was a widespread practice. See, e.g., Jones v. Town

of East Haven, 691 F.3d 72, 85 (2d Cir. 2012) (two or three instances is insufficient evidence to

establish a policy of improper conduct). Nor does the existence of a Giglio committee and the

committee’s recognition that evidence was withheld in various cases, see Compl. ¶ 168,

demonstrate the existence of an unlawful policy of failing to disclose information. See, e.g.,

Jackson v. Nassau County, __ F. Supp. 3d __, 2021 WL 3207168, at *19 (E.D.N.Y. July 28, 2021)

(finding that two investigators, on two occasions, who were found to have committed

unconstitutional conduct, did not demonstrate a policy or custom of unconstitutional conduct).

Indeed, Plaintiff cannot point this Court to any case where a court found such de minimis

allegations sufficient to establish such a claim. See generally, ECF No. 9 at 26-29.

Therefore, such claims must be DISMISSED.

6 In United States v. Rodriguez, the Second Circuit held that the government does not violate Brady by merely failing

to take notes of its interviews with witnesses. 496 F.3d 221, 224-25 (2d Cir. 2007).

CONCLUSION

For the reasons set forth above, Defendant’s Motion to Dismiss, ECF No. 5, is GRANTED

IN PART and DENIED IN PART. Plaintiff's Monel/ claim based on a failure to discipline may

proceed and Plaintiff's remaining claims are DISMISSED.

IT IS SO ORDERED.

Dated: December 27, 2021

Rochester, New York

H NK P. GE , JR.

United States District Judge

Western District of New York

14