Adamides v. Warren

UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF NEW YORK

__________________________________________

KATHERINE ADAMIDES, et al.,

Plaintiffs, DECISION AND ORDER

vs.

21-CV-6613 (CJS)

LOVELY ANN WARREN, et al.,

Defendants.

__________________________________________

Plaintiffs attended a protest near Martin Luther King, Jr. Memorial Park in

Rochester, New York that began around 11:00 p.m. on July 15, 2020. Am. Compl., ¶ 61,

Jan. 5, 2022, ECF No. 10. The protest was directed at Defendant Lovely Ann Warren,

then Mayor of Rochester, and her “Local Emergency Order,” which temporarily prohibited

gatherings in groups of five or more persons in a public place between the hours of 11:00

p.m. and 5:00 a.m. Am. Compl. at ¶ 33, 61. Shortly after 2:00 a.m. on July 16, Plaintiffs

were arrested by officers of the Rochester Police Department (RPD Defendants), after

Plaintiffs failed to heed the RPD’s recitations of the order and its calls to the crowd to

disperse. Am. Compl. at ¶ 61–86.

Based on these events, Plaintiffs have filed the present action alleging multiple

violations of First Amendment, Fourth Amendment, Due Process, and Equal Protection

rights, as well as false arrest and malicious prosecution under federal and New York law,

assault and battery, and violations of New York’s “right to monitor” law. The matter is

presently before the Court on Defendants’ motion to dismiss the complaint for failure to

state a claim upon which relief may be granted. Mot. to Dismiss, Feb. 9, 2022, ECF No.

13.

For the reasons stated below, Defendants’ motion [ECF No. 13] is granted with

respect to all federal claims, as well as the false arrest and malicious prosecution claims

under New York state law. The Court declines to exercise supplemental jurisdiction with

respect to the remaining state law claims for assault and battery, and violation of Plaintiffs’

“right to monitor” under New York Civil Rights Law § 79-P. The Clerk of Court is directed

to close this case.

BACKGROUND

Daniel Prude

Although their complaint alleges misconduct that occurred on the night of July 15,

2020, Plaintiffs have hitched the success of the present action to the arrest and

subsequent death of Daniel Prude four months earlier. Briefly, on the evening of March

23, 2020, Prude’s family sought assistance from the Rochester Police Department (RPD)

in dealing with an “acute mental health crisis” that Prude was experiencing at that time.

Am. Compl. at ¶ 27. In the course of effecting a “mental health arrest” on Prude, the RPD

forcibly restrained him and employed a “spit hood.”1 Prude asphyxiated while in the spit

hood, and had to be transported to the local hospital, where he was declared brain dead.

Id. He died one week later, on March 30, 2020. Id. In February 2021, after hearing

evidence over nine sessions, a grand jury voted not to indict any of the RPD officers

involved on charges related to Prude’s death. See Attorney General James Releases

Statement on Grand Jury Decision Regarding the Death of Daniel Prude, Feb. 23, 2021,

1 See Final Report of the Independent Investigation of the City of Rochester’s Response to the Death of

Daniel Prude, Emery Celli Brinckerhoff Abady Ward & Maazel LLP, available at https://ecbawm.com/report-

released-in-the-investigation-of-the-city-of-rochesters-response-to-the-death-of-daniel-prude/ (last

accessed July 12, 2022) (incorporated by reference into the amended complaint.

2

https://ag.ny.gov/press-release/2021/attorney-general-james-releases-statement-grand-

jury-decision-regarding-death (last visited July 5, 2022).

Following Prude’s death, his family sought to view a copy of the the RPD officers’

body worn camera recordings that captured Prude’s arrest (the “Prude footage”). As

Plaintiffs explain in the amended complaint:

28. On April 3, 2020, [Daniel Prude’s brother,] Joe Prude, through counsel,

submitted a request for the [“Prude footage”] under the Freedom of

Information Law. When the City ignored the request, an agency appeal was

submitted on May 28, 2020, and the City was legally required to release the

video to Joe Prude and his counsel within 10 business days.

29. When RPD officials learned that it would have to release video of its

officers killing Daniel Prude, they immediately took steps to suppress the

video. On June 4, 2020, RPD Deputy Chief Mark Simmons wrote an email

to Chief of Police La’Ron Singletary in which he stated, “We certainly do not

want people to misinterpret the officers’ actions and conflate this incident

with any recent killings of unarmed black men by law enforcement

nationally. That would simply be a false narrative, and could create

animosity and potentially violent blow back in this community as a result. I

ask that we reach out to Corporation Council and ask them to deny the

request based on the fact that the case is still active, as it is currently being

investigated for possible criminal charges to be brought forth by the AG’s

office.”

30. Chief Singletary responded, “I totally agree. If you can set up a zoom

meeting with Pat[rick Beath] and/or Tim [Curtin].”

31. In a June 5, 2020 meeting, senior RPD officials, including Chief

Singletary, advocated with former Corporation Counsel Tim Curtin and

Deputy Corporation Counsel Patrick Beath to delay release of the [Prude

footage], based on concerns that disclosure could spark civil unrest or

violence amidst demonstrations then occurring over the death of George

Floyd.

32. Concerns about the public reaction to the [Prude] footage were not a

lawful basis to deny release of the [Prude] footage under FOIL.

33. Upon information and belief, following the June 5 meeting, the City and

Mayor Warren immediately drafted the Emergency Order that went into

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effect on July 15, 2020 (the “Curfew”), which purported to make it a class B

misdemeanor to “gather in groups of five or more in a public place in the

City of Rochester” between the hours of 11:00 p.m. and 5:00 a.m.

Am. Compl. at ¶ 28–33.

The Emergency Order

At the time of the events alleged in the amended complaint, Defendant Lovely Ann

Warren was the duly elected Mayor of the City of Rochester (“Mayor Warren”), and author

of the “Local Emergency Order” (“Emergency Order”) that was the subject of the protest

on the night of July 15–16, 2020. Am. Compl. at ¶ 21. Although Plaintiffs do not include

the full text of the Emergency Order in their papers, the order is at the heart of their

amended complaint,2 and Defendants have included a copy in their submissions.

The Emergency Order invokes the ongoing global, national, statewide, and local

states of emergency caused by the COVID-19 pandemic, and states in pertinent part:

WHEREAS, throughout the summer months of 2020, and increasingly

during the month of July, groups of individuals in the City of Rochester are

gathering both indoors and outdoors in public places, without face masks

and without social distancing as required by the Governor’s Executive

Orders, in particular during the late-night and early morning hours,

increasing the risk of transmission and community spread of the virus;

NOW, THEREFORE, effective 12:01 am on July 15, 2020, pursuant to the

powers granted to me by New York State Executive Law Section 24, and in

order to adequately protect life and property and to bring the emergency

situation under control it is hereby

* * *

ORDERED that, between the hours of 11:00 p.m. and 5:00 a.m., it shall be

unlawful to gather in groups of five or more in a public place in the City of

2 In adjudicating a motion to dismiss, the Court recognizes that it may consider only the complaint, any

written instrument attached to the complaint as an exhibit, any document that is integral to the complaint,

and any statements or documents incorporated by reference. See Chambers v. Time Warner, Inc., 282

F.3d 147, 152–53 (2d Cir. 2002).

4

Rochester. For purposes of this clause, a public place includes any outdoor

premises or other area that is open to the public, including but not limited to

streets, sidewalks, parks, parking lots, vacant lots and any unused or

unimproved land. Violation of this clause shall be a class B misdemeanor in

accordance with Executive Law § 24(5) . . . .

Mot. to Dismiss (Ex. D), Feb. 9, 2022, ECF No. 13-5. In addition to the prohibition on

gathering in groups of five or more in a public place between 11:00 p.m. and 5:00 a.m.,

the order also prohibited gathering in groups of ten or more unrelated individuals during

the same time period inside any location or premises not licensed under the Alcoholic

Beverage Control Law, temporarily limited access to City of Rochester facilities generally,

exempted city officials from statutorily-required “in person” attendance of meetings of city

bodies or boards, postponed zoning board meetings, suspended particular provisions of

the zoning code and noise ordinances to facilitate the expansion outdoor dining at city

restaurants, authorized the city clerk to execute statements of domestic partnerships

remotely, and allowed virtual hearings for parking violations. Id.

The Events of July 15, 2020

The Emergency Order went into effect at 12:01 a.m. on July 15, 2020. At

approximately 11:00 p.m. that night, Plaintiffs gathered in the vicinity of Martin Luther

King, Jr. Memorial Park to protest the Emergency Order. Am. Compl at ¶ 62. After a

peaceful march around the downtown area accompanied by a police escort, the

protesters returned to the sidewalk outside the park at about 12:30 a.m. Am. Compl at

¶ 63. Around 1:30 a.m., 19 Rochester Police Department (RPD) officers assembled on

the street in front of the protesters, began continuously reading the emergency order over

the loudspeaker, and warned the protesters that they would be arrested if they did not

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disperse. Am. Compl. at ¶ 66–69.

At 1:40 a.m., 20 additional RPD officers approached the protesters from the rear.

Am. Compl. at ¶ 71. The first protester was arrested at 1:44 a.m. Am. Compl. at ¶ 71. At

2:16 a.m., the RPD issued another warning to the protesters that they must disperse or

be arrested. Am. Compl. at ¶ 72. When Plaintiffs did not disperse, they were surrounded

and arrested one-by-one by the RPD Defendants.

Prior to being put into one of three transport vans used by the RPD on this

occasion, Plaintiffs’ masks were removed so that they could be photographed. Am.

Compl. at ¶ 78. In several instances, the RPD Defendants did not put Plaintiffs’ masks

back on following the photographs. Am. Compl. at ¶ 78. Plaintiffs were then placed into

the transport vans with other arrestees – several of whom were unmasked – for between

30 and 60 minutes before being taken to a nearby police station. Am. Compl. at ¶ 79.

Once at the police station, Plaintiffs were questioned, issued appearance tickets charging

them with violations of the Emergency Order, and released. Am. Compl. at ¶ 82.

The Instant Case

Based on these events, Plaintiffs timely filed Notices of Claim against the City in

compliance with New York General Municipal Law § 50. Am. Compl. at ¶ 14. The City

waived a § 50-h hearing for nearly all Plaintiffs, and declined to pay or adjust the claims.

Am. Compl. at ¶ 15–16. Plaintiffs then filed the present action against Defendants, listing

fifteen causes of action: (1) municipal liability under 42 U.S.C. § 1983; (2) violation of the

First and Fourteenth Amendment; (3) violation of the First Amendment (including

retaliation and selective enforcement); (4) unlawful seizure / false arrest (§ 1983); (5) false

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arrest (New York state law); (6) malicious prosecution (§ 1983); (7) malicious prosecution

(New York state law); (8) violation of the First, Fourth, Fifth, and Fourteenth Amendments;

(9) false imprisonment / conditions of confinement (§ 1983); (10) due process violations;

(11) equal protection violations; (12) vagueness (§ 1983); (13) declaration of rights (28

U.S.C. § 2201); (14) assault and battery (New York state law); and (15) violation of New

York’s “right to monitor” act.

The matter is presently before the Court on Defendants’ motion to dismiss the

amended complaint for failure to state a claim upon which relief may be granted. Mot. to

Dismiss, Feb. 9, 2022, ECF No. 13.

LEGAL STANDARD

It is well-settled that the purpose of a motion to dismiss under Federal Rule of Civil

Procedure 12(b)(6) “is to test . . . the formal sufficiency of the plaintiff’s statement of a

claim for relief without resolving a contest regarding its substantive merits.” Global

Network Commc’ns, Inc. v. City of New York, 458 F.3d 150, 155 (2d Cir. 2006) (emphasis

omitted). The court must draw all reasonable inferences in the plaintiff’s favor and accept

all factual allegations in the complaint as true, but need not attach any weight to legal

conclusions and conclusory statements. See Harris v. Mills, 572 F.3d 66, 72 (2d Cir.

2009).

An action must be dismissed under Rule 12(b)(6) “when the allegations in a

complaint, however true, could not raise a claim of entitlement to relief . . . .” Bell Atl. Corp.

v. Twombly, 550 U.S. 544, 558 (2007). To survive a motion to dismiss under Rule

12(b)(6), on the other hand, “a complaint must contain sufficient factual matter, accepted

7

as true, to ‘state a claim to relief that is plausible on its face.’” Ashcroft v. Iqbal, 556 U.S.

662, 678 (2009) (quoting Twombly, 550 U.S. at 570).

“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.” Iqbal, 556 U.S. at 678. Where a plaintiff’s factual allegations are “merely

consistent with” a defendant’s liability, those allegations “stop[] short of the line between

possibility and plausibility of entitlement to relief.” Id. (quoting Twombly, 550 U.S. at 557).

Moreover, “[c]onclusory allegations or legal conclusions masquerading as factual

conclusions will not suffice to defeat a motion to dismiss.” Kirch v. Liberty Media Corp.,

449 F.3d 388, 398 (2d Cir. 2006) (citation and internal quotation marks omitted).

DISCUSSION

Defendants present multiple arguments in support of their motion to dismiss. They

maintain that: (1) Plaintiffs do not have standing to seek declaratory relief; (2) the claims

for relief alleging generalized municipal liability and assault and battery do not identify a

factual predicate; (3) Plaintiffs’ First Amendment claims fail as a matter of law; (4) the

false arrest and malicious prosecution claims are precluded by the RPD Defendants’

probable cause to arrest protesters who disobeyed the emergency orders; (5) the

conditions of confinement claim fails to satisfy either the objective or the subjective prongs

of the inquiry; (6) the emergency order was not unduly vague; (7) the equal protection

claim is legally insufficient; and (8) the violation of N.Y. Civil Rights Law § 79-p claim fails

to allege that Plaintiffs were arrested for protected activity. For ease of discussion, the

Court addresses Defendants’ arguments out of order.

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First Amendment Claims

In their second, third and eighth claims for relief, Plaintiffs argue that Mayor

Warren’s Emergency Order, and the RPD Defendants’ enforcement of that order,

constituted violations of their First, Fourth, Fifth and Fourteenth Amendment rights.

Plaintiffs allege that the Emergency Order fails “strict scrutiny” because it was “viewpoint

discriminatory . . . unnecessary, and not precisely tailored to serve compelling

government interests” (Am. Compl. at ¶ 371(a)), and that it fails “intermediate scrutiny”

because it “lacked narrow tailoring to serve a significant governmental interest” (Compl.

at ¶ 371(b)). Additionally, Plaintiffs maintain that they have adequately pled a retaliatory

arrest claim against the RPD Defendants under Lozman v. City of Riviera Beach, 138 S.

Ct. 1945 (2018). Mem. in Opp. at 18; Am. Compl. at ¶ 363, 365. The Court finds that all

three facets of Plaintiffs’ First Amendment claims – viewpoint discrimination, scope of the

restrictions, and retaliation – are without merit.

Viewpoint Discrimination

The central theory animating Plaintiffs’ compliant is that the July 15, 2020

Emergency Order “was simply a pretextual justification for suppressing lawful public

demonstrations when the video of [Rochester Police Department] officers killing Daniel

Prude was released publicly . . . .” Mem. in Opp. at 4; see also Am. Compl. at ¶ 361

(alleging that the Emergency Order “was drafted and implemented for the purpose of

suppressing lawful protests that were anticipated when the [Prude footage] became

public.”). Thus, Plaintiffs maintain that the order was drafted “without lawful justification to

deprive Plaintiffs of their rights to speech, expression and to assemble in violation of the

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First, Fifth, and Fourteenth Amendments to the United States [Constitution].” Am. Compl.

at ¶ 354. Defendants argue that Plaintiffs’ allegations in this regard are baseless, and that

the order and the “gathering limitations therein further a substantial government interest:

the promotion of public health and safety by reducing the spread of COVID-19 and

reducing gun violence.” Mem. in Support at 12.

To be sure, the First Amendment, as incorporated through the Fourteenth

Amendment, prohibits a state from abridging the freedom of speech, or the right of the

people to peaceably assemble. See, e.g., Johnson v. Perry, 859 F.3d 156, 171 (2d Cir.

2017). Consistent with the traditionally open character of public streets and sidewalks,

the Supreme Court has “held that the government’s ability to restrict speech in such

locations is ‘very limited.’” McCullen v. Coakley, 573 U.S. 464, 477 (2014) (citation

omitted). In such traditional public fora, “the guiding First Amendment principle that the

‘government has no power to restrict expression because of its message, its ideas, its

subject matter, or its content applies with full force’ . . . .” Id. (quoting Police Dept. of

Chicago v. Mosley, 408 U.S. 92, 95 (1972)).

Another court in this District recently summarized First Amendment law as it relates

to viewpoint discrimination:

Government “[d]iscrimination against speech because of its message is

presumed to be unconstitutional.” Rosenberger v. Rector & Visitors of Univ.

of Va., 515 U.S. 819, 828 (1995). “Viewpoint discrimination is a subset or

particular instance of the more general phenomenon of content

discrimination, in which the government targets not subject matter but

particular views taken by speakers on a subject.” Make the Rd. by Walking,

Inc. v. Turner, 378 F.3d 133, 150 (2d Cir. 2004) (quoting another source).

The government discriminates against viewpoints when it disfavors certain

speech because of “the specific motivating ideology or the opinion or

perspective of the speaker.” Rosenberger, 515 U.S. at 829.

10

Hilderbrant v. City of Rochester, et al., No. 21-CV-6714-FPG, 2022 WL 2356701, at *7

(W.D.N.Y. June 30, 2022).

In the amended complaint, Plaintiffs make much of the June 4th and 5th

communications of RPD Chief La’Ron Singletary and RPD Deputy Chief Mark Simmons

with each other, and then with City of Rochester attorneys Patrick Beath and Tim Curtin.

The Court accepts as true both that the alleged communications regarding the Prude

footage between senior RPD officials and city attorneys occurred, and that the content of

the communications included expressions of concern about potential civil unrest if the

footage was released. Even taking those allegations to be true, however, the Court finds

that Plaintiffs have failed to plausibly allege that the July 15 Emergency Order was simply

“a pretextual justification for suppressing lawful public demonstrations when the video of

RPD officers killing Daniel Prude was release[d] publicly . . . .” Am. Compl. at ¶ 41

(footnote omitted). There are four primary reasons the Court finds Plaintiffs’ theory

implausible. See also Def.’s Reply, 2–4, Mar. 25, 2022, ECF No. 16.

First, the Emergency Order does not draw a content-based distinction on its face.

It prohibits all gatherings of groups of five or more in public places, not gatherings of

groups with particular messages. See Mot. to Dismiss (Ex. D). The Act would be content-

based if it required “enforcement authorities” to “examine the content of the message that

is conveyed to determine whether” a violation has occurred. McCullen, 573 U.S. at 479

(citation omitted). But it does not. Whether petitioners violate the order depends not on

“what they say,” but on when, where, and with how many people they say it. See Holder

v. Humanitarian Law Project, 561 U.S. 1, 27 (2010).

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Second, the Emergency Order provides an express and reasonable justification3

for the restrictions that it imposes: a growing number of “groups of individuals in the City

of Rochester . . . gathering both indoors and outdoors in public places, without face masks

and without social distancing . . . in particular during the late-night and early morning

hours, increasing the risk of transmission and community spread of the virus . . . .” Mot.

to Dismiss (Ex. D). This reasoning was consistent with Mayor Warren’s original

“Proclamation of a Local State of Emergency” in the City of Rochester, which was issued

on March 16, 2020 – one week before Prude’s arrest – and declared a local state of

emergency based on the threat that COVID-19 poses to the health and welfare of the City

of Rochester’s residents and visitors. See Mot. to Dismiss (Ex. C), Feb. 9, 2022, ECF No.

13-4. In short, on its face the order served purposes unrelated to the content of

expression. See Ward v. Rock Against Racism, 491 U.S. 781, 791 (1989) (finding that

when determining content neutrality, “[t]he government’s purpose is the controlling

consideration.). See also Hobbs v. Cnty. of Westchester, 397 F.3d 133, 150 (2d Cir. 2005)

(“a regulation that targets only potentially harmful secondary effects of speech, rather

than the contents of the speech itself . . . is deemed content-neutral).

In this regard, Plaintiffs’ multiple assertions that “there [was] no public health

3 Defendants also maintain that the order was justified to counteract an increase of gun violence in the city.

To that end, Defendants submit the affidavit of Fabian Rivera, a Commander with the RPD in charge of the

Patrol Division. Mot. to Dismiss (Ex. 11), Feb. 9, 2022, ECF No. 13-11. Defendants had previously

submitted this affidavit in a separate action seeking an injunction against enforcement of the Emergency

Order. See, e.g., Martin v. Warren, 482 F. Supp.3d 51, 56 (W.D.N.Y. 2020) (recounting Rivera’s statement

regarding a gunfight in the area of Chili Avenue and Post Avenue on July 5, 2020). The Court declines to

consider Commander Rivera’s affidavit at this time – as well as Defendants’ assertion that part of the

purpose of the order was to decrease opportunities for gun violence – because those issues go to a factual

dispute regarding the substance of Plaintiffs’ claims, rather than the formal sufficiency of Plaintiffs’

complaint.

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justification for Mayor Warren’s Emergency Order” are conclusory assertions, not factual

allegations that the Court is compelled to accept as true. Am. Compl. at ¶ 41. In an attempt

to demonstrate the unreasonableness of the measures implemented through the

Emergency Order, Plaintiffs state that public health officials have shown that the odds of

catching COVID-19 are much greater indoors than outdoors (Am. Compl. at ¶ 42), that

open spaces prevent COVID-19 from spreading (Am. Compl. at ¶ 43), and that bars are

among the riskiest places for the spread of COVID-19 (Am. Compl. at ¶ 46). However, as

Justice Roberts of the Supreme Court pointed out approximately one month before the

Emergency Order was issued, most of what was commonly known of COVID-19 at the

time was that it is “a novel severe acute respiratory illness that has killed . . . more than

100,000 [people] nationwide.” S. Bay United Pentecostal Church v. Newsom, 140 S. Ct.

1613 (2020) (Roberts, J. concurring). There was “no known cure, no effective treatment,

and no vaccine. [And b]ecause people may be infected but asymptomatic, they may

unwittingly infect others.” Id.

Third, the measures instituted by the Emergency Order were consistent with the

order’s stated purpose, not with viewpoint discrimination. As noted, in addition to imposing

restrictions on late-night gatherings, the order limited public access to city facilities,

temporarily suspended the “in-person attendance” requirement for public officers at public

meetings, cancelled zoning board meetings, temporarily suspended noise ordinance

restrictions, authorized the city clerk’s office to execute statements of domestic

partnership remotely, and allowed remote hearings for parking violations. These

measures all fit with the order’s stated justification of protecting the public from COVID-

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19, and do not in any way support the inference that the order was a pretext for the

suppression of protests that city officials expected to follow the release of the Prude

footage. Further, the restrictions are consistent with similar measures taken by other cities

around New York State. See, e.g., Butler v. City of New York, 559 F. Supp.3d 253, 261

(S.D.N.Y. 2021) (challenging New York City Mayor Bill de Blasio’s Emergency Executive

Order 103, which restricted gatherings “[i]n order to avoid the mass congregation of

people in public places and to reduce the opportunity for the spread of COVID-19 . . . .”).

Lastly, Plaintiffs have failed to render a plausible account of the discrepancy in the

timing of the communications between the senior RPD officials and city attorneys

regarding the Prude footage, and the proclamation of the Emergency Order. According

to the Amended Complaint, Prude’s family first requested the Prude footage on April 3,

2020 (Am. Compl. at ¶ 28); an agency appeal was submitted on May 28 (Am. Compl. at

¶ 28); the communication between RPD Chief La’Ron Singletary and RPD Deputy Chief

Mark Simmons occurred on June 4 (Am. Compl. at ¶ 29); and the communications –

including a meeting – between RPD officials and city attorneys Beath and Curtin occurred

on June 5 (Am. Compl. at ¶ 31). Yet the Emergency Order was not issued until July 15

(Am. Compl. at ¶ 33), more than one month after the meeting between the RPD officials

and city attorneys. Additionally, the Prude footage was not released to the Prude family

until August 12, and then not to the public until September 2.4 Plaintiffs allege that

“following the June 5 meeting, the City and Mayor Warren immediately drafted the

4 The dates of release of the Prude footage were not taken directly from Plaintiffs’ pleadings, but rather

from paragraphs 59 and 64, respectively, of the “Final Report of the Independent Investigation of the City

of Rochester’s Response to the Death of Daniel Prude,” which Plaintiffs incorporated by reference in their

amended complaint at ¶ 32.

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Emergency Order that went into effect on July 15, 2020” (Am. Compl. at ¶ 33), but they

provide no plausible explanation for why the order was “immediately drafted” in early June

but not proclaimed until mid-July, and then the Prude footage not released until mid-

August.

Accordingly, the Court finds that Plaintiffs’ allegation that the COVID-19 pandemic

was merely a “pretext” for the Emergency Order, which was really aimed at suppressing

protests over the Prude footage, is not plausible. Plaintiffs’ claims of viewpoint

discrimination are without merit.

Scope of the Restrictions

In addition to viewpoint discrimination, Plaintiffs also challenge the scope of the

restrictions imposed by the Emergency Order. They maintain that the restrictions are so

broad that they could not stand up to either strict or intermediate scrutiny. Am. Compl. at

¶ 371. Defendants counter that the regulations are justified under the four-part test set

forth in United States v. O’Brien, 391 U.S. 367 (1968). Mem. in Supp. at 13–14. The Court

finds that the scope of the regulations are justified under both the O’Brien standard, as

well as the “the modern constitutional jurisprudence of tiers of scrutiny” framework utilized

by Plaintiffs. Agudath Israel of Am. v. Cuomo, 983 F.3d 620, 635 (2d Cir. 2020).

In O’Brien, the Supreme Court held that “when ‘speech’ and ‘nonspeech’ elements

are combined in the same course of conduct, a sufficiently important governmental

interest in regulating the non-speech element can justify incidental limitations on First

Amendment freedoms.” O’Brien, 391 U.S. at 376. The O’Brien court identified four

elements for determining whether a regulation is sufficiently justified: (1) it is within the

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constitutional power of the Government; (2) it furthers an important or substantial

government interest; (3) the government interest is unrelated to the suppression of free

expression; and (4) the incidental restriction on alleged First Amendment freedoms is no

greater than is essential to the furtherance of that interest. O’Brien, 391 U.S. at 377.

Under the “tiers of scrutiny” framework, the Supreme Court has held that “even in

a public forum the government may impose reasonable restrictions on the time, place, or

manner of protected speech, provided the restrictions are justified without reference to

the content of the regulated speech, that they are narrowly tailored to serve a significant

governmental interest, and that they leave open ample alternative channels for

communication of the information.” Ward, 491 U.S. at 791 (internal quotation marks and

citation omitted). Under the intermediate standard employed in cases in which the

regulation is content neutral, as it is in this case, “narrowly tailored” does not require a

regulation to be the “least restrictive or least intrusive” means. Marcavage v. City of New

York, 689 F.3d 98 104 (2d Cir. 2012). Rather, the regulation is “narrowly tailored so long

as it . . . promotes a substantial government interest that would be achieved less

effectively absent the regulation and is not substantially broader than necessary.”

Marcavage, 689 F.3d at 106 (internal quotation marks and citation omitted).

The measures instituted under the Emergency Order pass muster under either the

O’Brien standard or intermediate scrutiny. To begin with, “[s]temming the spread of

COVID–19 is unquestionably a compelling interest . . . .” Roman Cath. Diocese of

Brooklyn v. Cuomo, 141 S. Ct. 63, 67 (2020). In serving this compelling interest, Mayor

Warren and the City of Rochester zeroed in on the cause (large late-night gatherings)

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and narrowly tailored the order to address that cause (prohibiting late-night gatherings in

public places). First, although the severity of the pandemic led to an extension of the

prohibition for a matter of months, conditions had to be evaluated and the order renewed

every five days. Second, at its most restrictive, the prohibition on public gatherings was

in effect for no more than six hours each night, leaving eighteen hours per day in which

the curfew was not in effect and in which protesters, journalists, and legal observers were

not restricted from exercising their First Amendment rights. Jeffery v. City of New York,

No. 20CV2843NGGRML, 2022 WL 204233, at *7 (E.D.N.Y. Jan. 24, 2022). Lastly, the

measure left open ample alternative channels to communicate at any hour, such as

videoconference, telephone, blogging, email, print media, radio, etc.

Retaliation

Finally, the Court notes that Plaintiffs maintain that their First Amendment

retaliation claim must go forward because Defendants failed to contest the retaliation

claim in the memorandum supporting their motion to dismiss. Mem. in Opp. at 16–17. The

Court disagrees. Although Defendants do not offer legal argument challenging the

retaliation claim in their original memorandum, they nevertheless attack the factual basis

of the claim with respect to both the Plaintiffs who allege they were retaliated against for

protesting (“Protesting Plaintiffs”), and those who allege they were retaliated against for

recording RPD officers’ conduct (“Recording Plaintiffs”)5 at the protest. Specifically, with

5 The category of Recording Plaintiffs includes Plaintiffs Katherine Adamides, Brendan Boehner, Ryan

Mullaney, and – though not listed in the caption or on the docket – Michael Sportiello, each of whom

“attended the July 15–16 protest in his [or her] capacity as a NLG Legal Observer[s].™” See, e.g., Am.

Compl. at ¶ 312 (Plaintiff Michael Sportiello). The category also includes Plaintiff Darien Lamen, who

“attended the July 15–16 protest in his capacity as a professional photojournalist.” Am. Compl. at ¶ 228.

The allegations in the amended complaint, accepted as true, establish that “at no time” were any of the

Recording Plaintiffs “standing with a ‘group’ of other people,” or “‘participating’” in the protest.” See, e.g.,

17

respect to the Protesting Plaintiffs, Defendants argue that they “were ultimately arrested

for violation of the Emergency Order,” not retaliation. See, e.g., Mem. in Supp. at 4. With

respect to the Recording Plaintiffs, Defendants similarly argue that “[t]he complaint fails

to provide any facts that any police officer effected an arrest or took any other action

against any of the plaintiffs because of recording activity, rather than because each of the

plaintiffs had committed a Class B misdemeanor by violating the Emergency Order’s

restrictions.” Mem. in Supp. at 25. After a careful review of the amended complaint, the

Court agrees with Defendants.

To begin with, the Court’s finding that Plaintiffs’ have failed to plausibly allege that

the COVID-19 pandemic was a “pretext” for suppressing potential protests of RPD

conduct in the arrest of Daniel Prude requires the further conclusion that the Protesting

Plaintiffs have not adequately pled a retaliatory arrest claim. See, e.g., Mem. in Opp. at

18 (“The entire thrust of Plaintiff[s’] First Amendment Retaliation claim is that the

[emergency order] was implemented to retaliate against protesters and suppress Black

Lives Matter protests that the City knew would occur when the video of Daniel Prude’s

murder was eventually release[d].”). As Plaintiffs rightly note, “[t]o plead a First

Amendment retaliation claim a plaintiff must show: (1) [plaintiff] has a right protected by

the First Amendment; (2) the defendant’s actions were motivated or substantially caused

by [plaintiff’s] exercise of that right; and (3) the defendant’s actions caused [plaintiff] some

Am. Compl. at ¶ 127–31 (Plaintiff Brendan Boehner). Each of the Recording Plaintiffs was at some point

removed from the “kettle” configuration which RPD Defendants had formed around the protest and

“escorted” by particular RPD Defendants to waiting RPD vehicles. See, e.g., Am. Compl. at ¶ 304 (Plaintiff

Ryan Mullaney). Recording Plaintiffs allege that they were “essential workers” not subject to the Emergency

Order. See, e.g., Am. Compl. at ¶ 93. They provide no reasoning, and cite to no legal authority to support

this legal conclusion.

18

injury.” Mem. in Opp. at 17 (quoting Dorsett v. Cnty. of Nassau, 732 F.3d 157, 160 (2d

Cir. 2013)). Because Protesting Plaintiffs have failed to plausibly plead that the

Emergency Order unlawfully restricted their First Amendment rights of free speech or free

assembly, their allegations fail to satisfy the first or second elements of retaliatory arrest,

and their claim is legally insufficient. The Supreme Court’s ruling in Lozman, then, which

found that the existence of probable cause for the arrest does not bar a First Amendment

retaliation claim, is inapposite. Lozman, 138 S. Ct. at 1955.

The First Amendment retaliation claims by the Recording Plaintiffs are also without

merit. In particular, the Recording Plaintiffs fail to adequately allege that the conduct

prompting their arrest was protected by the First Amendment.6

“Neither the Supreme Court nor Second Circuit precedent has squarely

established that an individual who is the subject of police activity has the right to record

police performing their official duties.” Picard v. Torneo, 2019 WL 4931353, at *4 (D.

Conn. 2019). However, “[a]ll of the circuit courts that have [addressed the issue] . . . have

concluded that the First Amendment protects the right to record police officers performing

their duties in a public space, subject to reasonable time, place and manner restrictions.”

6 In addition, Recording Plaintiff Adamides’ allegations that she was arrested because she was a legal

observer do not establish a retaliatory arrest claim. Am. Compl. at ¶ 88. Adamides alleges that she was

prevented from leaving the “kettle” at 2:18 a.m. by an RPD Defendant who was instructed by a commanding

officer that “she stays in.” Am. Compl. at ¶ 94. Her allegation that she was placed under arrest because she

was a legal observer in this regard is conclusory. See Nieves v. Bartlett, 139 S. Ct. 1715, 1722 (2019)

(citations omitted) (“To prevail on such a claim, a plaintiff must establish a ‘causal connection’ between the

government defendant’s ‘retaliatory animus’ and the plaintiff’s ‘subsequent injury’ . . . .”). Indeed, the details

of Plaintiff Adamides’ arrest are consistent with – if not identical to – what occurred to the Protester Plaintiffs:

she was taken to an RPD vehicle with the other individuals who had been arrested, transported to the local

police station, charged, and released. Compare Am. Compl. at ¶ 95–101 (Recording Plaintiff Adamides)

with Am. Compl. at ¶ 103–14 (Protesting Plaintiff Adams).

19

Higginbotham v. City of New York, 105 F. Supp.3d 369, 379 (S.D.N.Y. 2015), aff’d, 741

F. App’x 28 (2d. Cir. 2018) (citing First, Seventh, Ninth, and Eleventh Circuit cases).

As indicated above, the time, place, and manner restrictions of the Emergency

Order passed muster under both the O’Brien standard and intermediate scrutiny. Hence,

even assuming their right to observe, document, photograph and record police activity,

the restrictions on that right imposed by the emergency order and the police

announcements that night were permissible under the circumstances alleged. See, e.g.,

Leibovitz v. City of New York, No. 14-CV-7106(KAM)(LB), 2018 WL 1157872, at *8

(E.D.N.Y. Mar. 2, 2018) (dismissing the claim where plaintiff persisted in conduct that was

interfering with a police investigation, even after repeated warnings and request to

maintain greater distance). After over two hours of a gathering in violation of the

Emergency Order, RPD Defendants provided reasonable notice to the protesters that

they were in violation of the Emergency Order and must disperse by “continuously

reading” the Emergency Order over the loudspeaker beginning at approximately 1:28

a.m. (Am. Compl. at ¶ 68), “announcing” at approximately 1:30 a.m. “that if the group did

not disperse they would be arrested for violating the curfew” (Am. Compl. at ¶ 69), and

issuing a “three-minute warning to disperse or be arrested” at approximately 2:16 a.m.

(Am. Compl. at ¶ 72). These measures served as a justified and narrow restriction on the

manner in which the Recording Plaintiffs could exercise their asserted First Amendment

rights. See, e.g., Leibovitz, 2018 WL 1157872 at *9.

For all of the foregoing reasons, Plaintiffs’ second, third and eighth claims must

be dismissed.

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False Arrest / Unlawful Seizure

In their fourth and fifth claims for relief, Plaintiffs allege causes of action for unlawful

seizure and false arrest under both federal and state law. Plaintiffs allege that “[t]he

individual Defendants seized and arrested Plaintiffs despite knowing that the [Emergency

Order] was unlawful and that probable cause did not exist to seize and arrest Plaintiffs for

any crime.” Am. Compl. at ¶ 377. The Court concludes that Plaintiffs’ claims for false

arrest are legally insufficient, and must be dismissed.

The elements of a false arrest claim under § 1983 are essentially the same as the

elements of a false arrest claim under New York state law. Hygh v. Jacobs, 961 F.2d 359,

366 (2d Cir.1992) “[A] § 1983 claim for false arrest derives from [the] Fourth Amendment

right to remain free from unreasonable seizure, which includes the right to remain free

from arrest absent probable cause.” Jaegly v. Couch, 439 F.3d 149, 151 (2d Cir. 2006).

To establish a § 1983 claim for false arrest, a plaintiff must show that “(1) the defendant

intended to confine the plaintiff, (2) the plaintiff was conscious of the confinement, (3) the

plaintiff did not consent to the confinement, and (4) the confinement was not otherwise

privileged.” Bernard v. United States, 25 F.3d 98, 102 (2d Cir. 1994)). Because the

existence of probable cause makes a confinement privileged, “[p]robable cause is an

absolute defense to a false arrest claim.” Stansbury v. Wertman, 721 F.3d 84, 89 (2d Cir.

2013) (quoting Torraco v. Port Auth. of N.Y. & N.J., 615 F.3d 129, 139 (2d Cir. 2010)).

“An officer has probable cause to arrest when he or she has knowledge or

reasonably trustworthy information of facts and circumstances that are sufficient to

warrant a person of reasonable caution in the belief that the person to be arrested has

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committed . . . a crime.” Jaegly, 439 F.3d at 152 (quotation omitted). “A court ‘must

consider [only] those facts available to the officer at the time of the arrest and immediately

before it.’” Stansbury, 721 F.3d at 89 (quoting Panetta v. Crowley, 460 F.3d 388, 395 (2d

Cir. 2006)). In the state of New York, “[a]n assessment of probable cause becomes easier

in the scenario of a direct observation of a legal infraction,” because N.Y. Crim. Proc. Law

§ 140.10(1)(a) provides, in pertinent part, that “a police officer may arrest a person for

[a]ny offense when he or she has reasonable cause to believe that such person has

committed such offense in his or her presence.” Clay v. Riordan, No. 18-CV-933 (LJV),

2020 WL 3893809, at *4 (W.D.N.Y. July 10, 2020), report and recommendation adopted,

No. 18-CV-00933, 2020 WL 4474160 (W.D.N.Y. Aug. 4, 2020) (citation omitted).

Plaintiffs’ false arrest claims are predicated on the theory that Mayor Warren’s

Emergency Order was unlawful. It was not. Plaintiffs’ “attend[ance of] the protest on the

night of July 15–16, 2020” (Am. Compl. at ¶ 61) – whether in the capacity of a protester

or as a legal observer – was therefore prohibited. See Mot. to Dimiss (Ex. D). Not only

were Plaintiffs given notice of this fact with the Mayor’s original proclamation of the

Emergency Order, but they were informed on the scene by the RPD Defendants at 1:28

a.m. (Am. Compl. at ¶ 28) and again at 2:16 a.m. (Am. Compl. at ¶ 72), yet Plaintiffs failed

to disperse. See, e.g., Dinler v. City of New York, No. 04 CIV. 7921 RJS JCF, 2012 WL

4513352, at *6 (S.D.N.Y. Sept. 30, 2012) (noting “that police efforts to sort lawbreakers

from bystanders, and to advise the latter that they should leave, are highly probative of

whether it would be reasonable to conclude that every person arrested violated the law.”).

22

Because Defendants had probable cause to arrest Plaintiffs, Plaintiffs fail to show

that their confinement was not privileged, and the false arrest claims must be dismissed

as legally insufficient. Butler, 559 F. Supp.3d at 272–73.

Malicious Prosecution

Plaintiffs’ sixth and seventh causes of action assert malicious prosecution claims

against Defendants under state and federal law. Compl. at ¶¶ 399-417. “[I]n recognizing

a malicious prosecution claim when the prosecution depends on a violation of federal

rights, [§ 1983] adopts the law of the forum state so far as the elements of the claim for

malicious prosecution are concerned.” Cornejo v. Bell, 592 F.3d 121, 129 (2d Cir. 2010)

(citation omitted). Accordingly, where New York is the forum state, a plaintiff alleging a

claim for malicious prosecution under § 1983 and state law must allege four elements: (1)

the initiation or continuation of a criminal proceeding against plaintiff; (2) termination of

the proceeding in plaintiff’s favor; (3) lack of probable cause for commencing the

proceeding; and (4) actual malice as a motivation for defendant’s actions. Manganiello v.

City of New York, 612 F.3d 149, 160–61 (2d Cir. 2010). The plaintiff must also show a

violation of his Fourth Amendment rights. Id. at 161.

“Although probable cause to arrest and probable cause to prosecute often are co-

extensive, probable cause to arrest does not automatically carry over to preclude a

malicious prosecution claim.” Torres v. City of New York, No. 20-CV-4007 (BMC), 2022

WL 955152, at *8 (E.D.N.Y. Mar. 30, 2022) (citing Posr v. Court Officer Shield No. 207,

180 F.3d 409, 417 (2d Cir. 1999)). “Probable cause, in the context of malicious

prosecution, has also been described as such facts and circumstances as would lead a

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reasonably prudent person to believe the plaintiff guilty.” Boyd v. City of New York, 336

F.3d 72, 76 (2d Cir. 2003).

Here, Plaintiffs allege that “[t]he RPD officers knew or were deliberately and

recklessly indifferent to the truth that probable cause did not exist to arrest and prosecute

Plaintiffs.” Am. Compl. at ¶ 404. However, aside from conclusively asserting that the RPD

officers gave “false and fabricated evidence” to prosecutors, Plaintiffs allege no plausible

facts that could lead to the conclusion that the RPD officers were doing anything other

than citing Plaintiffs for a violation of the lawful Emergency Order. Accordingly, Plaintiffs’

sixth and seventh claims must be dismissed.

False Imprisonment / Conditions of Confinement

In Plaintiffs’ ninth claim for relief, they allege that they were falsely imprisoned and

confined in conditions that “violated their rights to due process of the law, were knowingly

and objectively punitive, with no rational relationship to any lawful purpose for which

Plaintiffs were being detailed.” Am. Compl. at ¶ 436. The false imprisonment element of

the ninth claim for relief must be dismissed for the same reasons as articulated in the

false arrest section above. See Singer v. Fulton Cnty. Sheriff, 63 F.3d 110, 118 (2d Cir.

1995) (“The common law tort of false arrest is a species of false imprisonment . . . .”).

A pretrial detainee’s claims of unconstitutional conditions of confinement, on the

other hand, are evaluated under a different standard. The Second Circuit has made clear

that under the Due Process Clause of the Fourteenth Amendment, “[p]retrial detainees

have not been convicted of a crime and thus ‘may not be punished in any manner—

neither cruelly and unusually nor otherwise.’” Benjamin v. Fraser, 343 F.3d 35, 49–50

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(2d Cir. 2003), overruled on other grounds by Caiozzo v. Koreman, 581 F.3d 63, 70 (2d

Cir. 2009). A pretrial detainee may establish a § 1983 claim for unconstitutional conditions

of confinement by showing that the officers acted with deliberate indifference to the

challenged conditions. Benjamin, 343 F.3d at 50. This means that a pretrial detainee must

satisfy two prongs to prove a claim: (1) an “objective prong” showing that the challenged

conditions were sufficiently serious to constitute objective deprivations of the right to due

process, and (2) a “subjective prong” showing that the officer acted with at least deliberate

indifference to the challenged conditions. Darnell v. Pineiro, 849 F.3d 17, 29 (2d Cir.

2017).

To establish an objective deprivation, “the inmate must show that the conditions,

either alone or in combination, pose an unreasonable risk of serious damage to his health

. . . which includes the risk of serious damage to physical and mental soundness.”

Darnell, 849 F.3d at 30 (internal citations and quotation marks omitted). The Second

Circuit recently reiterated that the proper lens through which to analyze allegedly

unconstitutional unsanitary conditions of confinement is with reference to their “severity”

and “duration,” not the detainee’s resulting injury. Willey v. Kirkpatrick, 801 F.3d 51, 66–

68 (2d Cir. 2015).

In the present case, Plaintiffs allege that “Defendants acted with deliberate and

reckless indifference toward Plaintiffs’ health, safety and medical needs” (Am. Compl. at

¶ 437) when they removed Plaintiffs’ protective face masks “exposing them to great risk

of contracting the deadly COVID-19 virus” (Am. Compl. at ¶ 432), touched Plaintiffs’ faces

with their soiled hands (Am. Compl. at ¶ 433), and “packed Plaintiffs into three crowded

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transport vans for prolonged periods of time” (Am. Compl. at ¶ 434). As a result of this

deliberate indifference, Plaintiffs allege that Plaintiff Taylor Howarth “did in fact contract

COVID-19.” Am. Compl. at ¶ 435.

The Court finds that Plaintiffs have not established a due process violation based

on their conditions of confinement. The crux of Plaintiffs’ argument in this regard is that

they were at “extreme risk of infection by COVID-19” while detained following the protest.

(Dkt. 9 at ¶ 49). However, there are no allegations that any of the Plaintiffs have a medical

condition that places any of them at high risk of serious illness should they contract

COVID-19. “Courts that have found that [plaintiffs] suffer from a serious medical need for

purposes of the deliberate indifference analysis in the context of the COVID-19 pandemic

have done so only for detainees suffering from conditions recognized by the Centers for

Disease Control and Prevention (“CDC”) as placing individuals at higher risk of severe

illness.” McDonald v. Feeley, 535 F. Supp.3d 128, 140 (W.D.N.Y. 2021) (collecting

cases). Because Plaintiffs have not made such a showing, they have not demonstrated

deliberate indifference to a serious medical need, and the conditions of confinement claim

fails.

Accordingly, Plaintiffs’ ninth claim for relief must be dismissed.

Due Process / Void for Vagueness

In their tenth claim for relief, Plaintiffs argue that Defendants enforced the

Emergency Order “in a manner that rendered it constitutionally void for vagueness and/or

overbroad, such that its enforcement against Plaintiffs violated their due process rights,

in that Defendants’ enforcement in connection with those offenses failed to provide and/or

26

reflected the absence of adequately clear standards to guide police officials’ . . . discretion

. . . without fair warning to Plaintiffs.” Compl. at ¶ 443.

As another court in this Circuit has explained:

The void-for-vagueness doctrine requires that a penal statute define a

criminal offense (1) “with sufficient definiteness that ordinary people can

understand what conduct is prohibited” and (2) “in a manner that does not

encourage arbitrary and discriminatory enforcement.” United States v.

Halloran, 821 F.3d 321, 337 (2d Cir. 2016) (quoting United States v. Rosen,

716 F.3d 691, 699 (2d Cir. 2013)). The touchstone of the first prong — the

notice prong — “is whether the statute [or regulation], either standing alone

or as construed, made it reasonably clear at the relevant time that the

defendant’s conduct was criminal,” while “[t]he arbitrary enforcement prong

requires that a statute give ‘minimal guidelines’ to law enforcement

authorities.” Mannix v. Phillips, 619 F.3d 187, 197 (2d Cir. 2010) (first

quoting United States v. Lanier, 520 U.S. 259, 267 (1997), and then quoting

Kolender v. Lawson, 461 U.S. 352, 358 (1983)). “Although a law must

provide explicit standards, it need not achieve meticulous specificity, which

would come at the cost of flexibility and reasonable breadth.” Id. (quotation

omitted).

Butler, 559 F. Supp.3d at 271.

Plaintiffs’ assert that the statute fails to meet a heightened standard for speech

regulations because it “provides no guidance on what constitutes a ‘group[] of five or

more’ people in a public place.” Mem. in Opp. at 24 (citing, inter alia, Smith v. Goguen,

415 U.S. 566, 573 (1974)). They even point to the conduct of fellow protester Tarik

Grandoit, who on the evening in question “asked several officers how far away from the

group he had to stand to not be arrested . . .” and received no answer. Am. Compl. at ¶

69. However, Plaintiffs’ assertions and arguments are not adequate to show the

Emergency Order was void for vagueness.

As Plaintiff notes, in a different case and under a separate standard of review, the

Court has previously found that “the term ‘group’ is clear and unambiguous, and . . . the

27

order provides people of common intelligence with clear notice of what is prohibited.”

Martin v. Warren, 482 F. Supp.3d 51, 79 (W.D.N.Y. 2020). Nothing in Plaintiff’s complaint

would lead the average person of ordinary intelligence to a different conclusion. See

Calvary Chapel Dayton Valley v. Sisolak, 140 S. Ct. 2603, 2605 (2020) (Alito, Thomas,

Kavanaugh, J., dissenting) (“In times of crisis, public officials must respond quickly and

decisively to evolving and uncertain situations . . . . Thus, at the outset of an emergency,

it may be appropriate for courts to tolerate very blunt rules.”). The Court concludes that

the terms of the Emergency Order provided adequate notice to people of common

intelligence, and provided law enforcement authorities with the minimal guidelines

necessary to satisfy the arbitrary enforcement prong.

Accordingly, Plaintiffs’ void for vagueness claim must be dismissed.

Equal Protection

In their eleventh claim for relief, Plaintiffs allege an equal protection claim on the

basis that “Defendants enforced the [Emergency Order] in a malicious and selective

manner against Plaintiffs in violation of Plaintiffs’ rights to enjoy equal protection of the

laws . . . . did not enforce the [order] against others similarly situated . . . . [and]

implemented the [order] for a discriminatory purpose . . . .” Am. Compl. at ¶ 448–451.

In order to state an Equal Protection claim, a plaintiff must allege “(1) [plaintiff] was

treated differently from other similarly-situated individuals; and (2) the differential

treatment was based on impermissible considerations such as race, religion, intent to

inhibit or punish the exercise of constitutional rights, or malicious or bad faith intent to

injure.” Louis v. Metro. Transit Auth., 145 F. Supp.3d 215, 227 (E.D.N.Y. 2015) (quoting

28

Skehan v. Vill. of Mamaroneck, 465 F.3d 96, 110 (2d Cir.2006) overruled in part on other

grounds by, Appel v. Spiridon, 531 F.3d 138 (2d Cir.2008) (quotation omitted)). To satisfy

the first prong, a plaintiff must identify a “similarly situated comparator,” and show that

she was treated differently than that comparator. Geller v. Cuomo, 476 F. Supp.3d 1, 19

(S.D.N.Y. 2020). District courts in the Second Circuit are split regarding the definition of

“similarly situated.” Louis, 145 F. Supp.3d at 227 (citation omitted).

Even under the least stringent standard, Plaintiffs have not proffered evidence of

a similarly situated comparator. They merely recite a litany of wrongs, many of which –

as discussed above – are insufficiently or implausibly pled. Thus, Plaintiffs’ selective

treatment theory fails, and the equal protection claim must be dismissed.

Declaratory Relief

In their twelfth claim for relief, Plaintiffs argue that under 42 U.S.C. § 1983, they

are entitled to declaratory relief in the form of a Court order declaring Defendant Warren’s

“Local Emergency Order” to be unconstitutionally vague. Am. Compl. at ¶ 456. In their

thirteenth claim for relief, Plaintiffs argue that they are entitled under 28 U.S.C. § 2201 to

a declaration from this Court declaring the order to be unlawful and a violation of the First

and Fourteenth Amendments. Compl. at ¶ 458–59. Defendants argue that this claim must

be dismissed because the emergency order has expired and Defendant Warren is no

longer in office, and hence there is no longer a case or controversy that such relief could

redress. Mem. in Support at 8–9. The Court agrees.

“Article III’s case-or-controversy requirement subsists through all stages of federal

judicial proceedings. It is not enough that a dispute was very much alive when suit was

29

filed.” Fed. Election Comm’n v. Wis. Right to Life, Inc., 551 U.S. 449, 461 (2007) (internal

quotation marks, ellipsis, and brackets omitted).The Second Circuit has explained that

[t]he case-or-controversy limitation on our jurisdiction, and its focus on

parties’ stakes in the action, manifests in three distinct legal inquiries:

standing, mootness, and ripeness . . . “[S]tanding doctrine evaluates a

litigant’s personal stake as of the outset of litigation.” Altman v. Bedford

Cent. Sch. Dist., 245 F.3d 49, 70 (2d Cir. 2001) . . . . Mootness doctrine

determines what to do “[i]f an intervening circumstance deprives the plaintiff

of a personal stake in the outcome of the lawsuit, at any point during

litigation” after its initiation. Genesis Healthcare Corp. v. Symczyk, 569 U.S.

66, 72 (2013) (internal quotation marks omitted) . . . .

Klein on behalf of Qlik Techs., Inc. v. Qlik Techs., Inc., 906 F.3d 215, 221 (2d Cir. 2018)

(some internal citations omitted). “The voluntary cessation of allegedly illegal activities will

usually render a case moot if the defendant can demonstrate that (1) there is no

reasonable expectation that the alleged violation will recur and (2) interim relief or events

have completely and irrevocably eradicated the effects of the alleged violation.” Mhany

Mgmt., Inc. v. County of Nassau, 819 F.3d 581, 603 (2d Cir. 2016) (citation omitted). “A

defendant satisfies its burden where it shows that the possibility of recurrence is merely

‘speculative.’” Dark Storm Indus. LLC v. Hochul, No. 20-2725-CV, 2021 WL 4538640, at

*1 (2d Cir. Oct. 5, 2021) (quoting Lillbask ex rel. Mauclaire v. State of Conn. Dep’t of

Educ., 397 F.3d 77, 88 (2d Cir. 2005)).

Here, although Defendants refer to standing, they are not alleging that Plaintiffs

lacked a personal stake in the outcome of the action at its commencement. Rather, they

contend that intervening circumstances – the expiration of the order, and Defendant

Warren’s leaving office – have rendered Plaintiffs’ claims moot. See Lewis v. Cuomo, No.

20-CV-6316 CJS, 2021 WL 5827274, at *8 (W.D.N.Y. Dec. 8, 2021). The Court finds that

30

in citing these intervening circumstances, Defendants have met their burden of

demonstrating that the possibility of recurrence of the Emergency Order is merely

speculative. “Particularly in view of the mitigation measures that have become available

to combat the spread of COVID-19, and the providential infrequency of pandemics,” there

is an extremely low risk that such a prohibitive Emergency Order will recur. Conn. Citizens

Def. League, Inc. v. Lamont, 6 F.4th 439, 446 (2d Cir. 2021).

Even if Plaintiffs did have standing, they would not be entitled to the declaratory

relief they seek for the reasons stated above, and because they have failed to plausibly

allege that the Emergency Order is void for vagueness. Accordingly, Plaintiffs’ twelfth and

thirteenth claims for relief are dismissed. See also Lamar Advert. of Penn, LLC v. Town

of Orchard Park, New York, 356 F.3d 365, 379 (2d Cir. 2004).

Municipal Liability

Having considered Plaintiffs’ claims for relief under federal law, the Court returns

to Plaintiffs’ first claim for relief, in which they broadly allege a § 1983 claim for “municipal

liability.” It is well-settled that 42 U.S.C. 1983 “is not itself a source of substantive rights,

but a method for vindicating federal rights elsewhere conferred by those parts of the

United States Constitution and federal statutes that it describes.” Baker v. McCollan, 443

U.S. 137, 145 n. 3 (1979). For claims under § 1983, a plaintiff must prove that “(1) the

challenged conduct was attributable at least in part to a person who was acting under

color of state law and (2) the conduct deprived the plaintiff of a right guaranteed under

the Constitution of the United States.” Snider v. Dylag, 188 F.3d 51, 53 (2d Cir.1999)

(citation omitted). As defendants rightly point out, although Monell v. Department of Social

31

Services, 436 U.S. 658 (1978) allows for claims to be brought against a municipality in

certain circumstances, Monell does not provide a separate cause of action absent an

“independent constitutional violation.” Segal v. City of New York, 459 F.3d 207, 219 (2d

Cir. 2006). Because there was no independent constitutional violation in this case,

Plaintiffs’ Monell claim must be dismissed. Butler, 559 F. Supp.3d at 273.

Supplemental Jurisdiction

28 U.S.C. § 1367(a) provides that “in any civil action of which the district courts

have original jurisdiction, the district courts shall have supplemental jurisdiction over all

other claims that are so related to claims in the action within such original jurisdiction that

they form part of the same case or controversy under Article III of the United States

Constitution.” However, the district court may decline to exercise supplemental jurisdiction

if “the district court has dismissed all claims over which it has original jurisdiction,” and

the court determines that retaining jurisdiction would not promote the values of economy,

convenience, fairness, and comity. See 28 U.S.C. § 1367(c); Catzin v. Thank You & Good

Luck Corp., 899 F.3d 77, 85 (2d Cir. 2018) (discussing United Mine Workers of Am. v.

Gibbs, 383 U.S. 715, 725 (1966)). “[I]n the usual case in which all federal-law claims are

eliminated before trial, the balance of factors to be considered . . . judicial economy,

convenience, fairness, and comity . . . will point toward declining to exercise jurisdiction

over the remaining state-law claims.” Valencia ex rel. Franco v. Lee, 316 F.3d 299, 302

(2d Cir. 2003).

In the present case, the Court has thoroughly considered Plaintiffs’ complaint and

papers, and concluded that they have failed to plausibly allege any federal claims, or a

32

state law claim for false arrest or malicious prosecution. Further, the Court finds that it

would not serve the values of judicial economy, convenience, fairness and comity to retain

supplemental jurisdiction over the remaining state law claims of assault and battery, and

violation of New York Civil Rights Law § 79-P. Therefore, the Court dismisses the case

entirely. Carnegie-Mellon Univ. v. Cohill, 484 U.S. 343, 351 (1988).

CONCLUSION

The Court finds that Plaintiffs’ complaint does not contain sufficient factual matter,

accepted as true, to state a claim to relief that is plausible on its face. Iqgba/, 556 U.S. at

678. Consequently, it is hereby,

ORDERED that Defendants’ motion to dismiss the amended complaint [ECF No.

13] is granted with respect to Plaintiffs’ first through thirteenth claims for relief; and it is

further

ORDERED that Plaintiffs’ remaining state law claims of assault and battery and

violation of New York Civil Rights Law § 79-P are dismissed under 28 U.S.C. § 1367(c).

The Clerk of Court is directed to close this case.

SO ORDERED.

Dated: July 15, 2022

Rochester, New York

ENTER:

Cepbess segae

CHARLE SIRAGUSA

United States District ge

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