# Reynolds v. The City of New York

> District Court, E.D. New York · August 8, 2024

URL: https://www.frixlaw.com/law-library/cases/10659149

## Case

- **Court:** District Court, E.D. New York
- **Decided:** August 8, 2024
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/10659149

## How later opinions describe it (automated extraction)

- noting that a “municipal agency may not be held liable under § 1983 simply for the isolated unconstitutional acts of its employees”

## Opinion text

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
--------------------------------------------------------------- X
:
NIA JASMINE REYNOLDS,
:
Plaintiff,
: MEMORANDUM DECISION AND

– against – : ORDER

21-CV-6111 (AMD) (TAM)
:
THE CITY OF NEW YORK; BROOKLYN
PRIME INC., dba Brooklyn Prime Bar and :
Restaurant; LESLEY CADOGAN, as Owner,
Brooklyn Prime Bar and Restaurant; TERRI ANN :
WILLIAMSON, as Manager, Brooklyn Prime Bar :
and Restaurant; ROBERT J. DANTONE, as
Captain, Police Department City of New York; :
TERRENCE E. CREIGHTON, as Lieutenant,
:
Police Department City of New York; MICHAEL
H. SOLOWITZ, as Lieutenant, Police Department :
City of New York; CHRISTOPHER J.
MULLER, as Sergeant, Police Department City of :
New York; ROBERT GRELLA, as Police Officer, :
Police Department City of New York; MAYER
SCHWARTZ, as Police Officer, Police Department :
City of New York; PETER D. WOODBURN, as
:
Police Officer, Police Department City of New
York; SEAN F. KELLEHER, as Police Officer, :
Police Department City of New York; and ROHAN
:
L. SHAW, each individual defendant sued in their
individual and official capacities as employees of :
Defendant THE CITY OF NEW YORK or
Defendant BROOKLYN PRIME, INC., :
:
Defendants.
:
--------------------------------------------------------------- X

ANN M. DONNELLY, United States District Judge:
The plaintiff was injured when an intoxicated, off-duty police officer drove his car into
the car in which she was a passenger. She brings this action against the City of New York, nine
New York City police officers, Brooklyn Prime Inc. (d/b/a Brooklyn Prime Bar and Restaurant),
and Brooklyn Prime’s owner and manager, and asserts Monell claims, a claim for denial of
access to the courts, and state law claims for negligence and violation of the New York State
Dram Shop Act, General Obligations Law §§ 11–100 et seq. (ECF No. 1.) Before the Court are
the defendants’ motions to dismiss. (ECF Nos. 76, 78, 79, 82.)1 For the reasons explained
below, the motions are granted.

BACKGROUND2
I. The Car Accident
On December 8, 2019, the plaintiff and two friends — Kwesi Vidale and Joanna
Dixon — went to a birthday party in Manhattan, then to a night club in Queens, and finally to a
café in Brooklyn. (ECF No. 33 ¶¶ 27, 32, 37.) The plaintiff drank alcohol at the nightclub but
did not know whether Vidale did. (Id. ¶ 34.) Sometime after 4:00 a.m., the plaintiff and her
friends got into Vidale’s car, and Vidale drove toward the plaintiff’s house. (Id. ¶¶ 40, 42–43.)
Neither the plaintiff nor Dixon wore seatbelts. (Id. ¶ 52.)
In the meantime, Robert Shaw, an off-duty police officer, was drinking at the Brooklyn
Prime Bar and Restaurant, a “Caribbean restaurant with full-service bar” in Brooklyn. (Id. ¶ 83.)

Shaw did not leave the restaurant until almost 5:00 a.m., when, then intoxicated, he got into his
car and started driving. (Id. ¶¶ 84, 85.) He “made a left turn onto Foster Avenue” and
“immediately accelerated to seventy-eight . . . miles per hour increasing to eighty-five . . . miles
per hour.” (Id. ¶ 88.) As Vidale “rolled through the stop sign[ and] attempted to make a left-
hand turn onto the westbound side of Foster Avenue” (id. ¶ 46), Shaw “activated his brakes,

1 The City, NYPD Captain Dantone, and Police Officers Sean F. Kelleher, Robert Grella, Mayer
Schwartz, Peter D. Woodburn, Michael H. Solowitz, and Christopher J. Muller moved to dismiss. (ECF
Nos. 76, 78, 79, 82.) Brooklyn Prime and its owner Lesley Cadogan and manager Terri Ann
Williamson, and Police Officer Terrence E. Creighton have not yet appeared in this action. Former
Police Officer Rohan Shaw did not file a motion to dismiss.
2 For purposes of these motions, the Court accepts as true the factual allegations in the amended
complaint and draws all reasonable inferences in the plaintiff’s favor. See Town of Babylon v. Fed.
Hous. Fin. Agency, 699 F.3d 221, 227 (2d Cir. 2012).
slowing down to fifty-one []miles per hour” and collided with Vidale’s car on the passenger side
(id. ¶ 88), killing Dixon and seriously injuring the plaintiff (id. ¶¶ 56–60). Shaw’s car “came to a
final rest just east of the intersection of Foster Avenue and East 55th Street.” (Id. ¶ 48.) Vidale
got out of the car and ran away. (Id. ¶ 49.)
The plaintiff has no memory of the car accident. (Id. ¶ 53.) She “recalls awakening

inside of Kings County Hospital as the medical personnel informed her that they needed to
perform emergency surgery.” (Id. ¶ 54.) She was hospitalized from December 8, 2019 through
December 28, 2019 (id. ¶ 58) and had a five-hour “surgery to repair a crushed pelvis and a
fractured sacrum” (id. ¶ 55). She also had “bleeding on the brain, a fractured skull,” “four
broken ribs, liver laceration,” and “lung contusions.” (Id. ¶ 56.) She still has “hearing loss and
frequent ringing in her ear” (id. ¶ 57) and “has been unable to bear any weight on her legs or
perform independently most regular daily tasks” (id. ¶ 59).
II. Post-Accident Events and Investigation
After the car accident, Shaw made multiple phone calls. (Id. ¶¶ 89–92.) He reported the
collision to 911; his speech was slurred and he did not “identif[y] himself as a member of the
service as required by department policy.” (Id. ¶ 90.) He also called his fiancé, as well as

Brooklyn Prime manager Terri Ann Williamson and Police Officer Terrence E. Creighton. (Id.
¶¶ 89, 91, 92.)3
Police Officers Woodburn, Schwartz, and Solowitz arrived at the scene sometime
between 5:00 a.m. and 6:00 a.m. (Id. ¶¶ 99, 106, 108, 117.) Shaw told them that he “was
traveling eastbound on Foster Avenue after having visited his ‘girlfriend’” when the driver of the

3 In a March 16, 2021 interview, Williamson “denied . . . knowing . . . S[haw and] anything about the
motor vehicle accident despite his cellphone records indicating she was the first [person Shaw] called”
after the accident. (ECF No. 33 ¶ 149).
Mazda collided with his car. (Id. ¶¶ 102, 112.) Damage to the front-end of Shaw’s car and
driver side of the Mazda “clearly indicate[d] [that Shaw] T-boned the other vehicle.” (Id. ¶ 103.)
The plaintiff maintains that the officer defendants, including Police Officer Kelleher and
Captain Dantone, did not activate their body-worn cameras as NYPD policy required, and did
not conduct a proper investigation. (Id. ¶¶ 93–94, 96–97, 151.) The plaintiff claims that,

because of these failures, there are no recordings of the defendants’ interactions with Shaw while
he was intoxicated. (Id. ¶¶ 93–94, 96–97.) The plaintiff also claims that Creighton came to the
accident scene while he was “on pre-separation leave . . . in violation of department policy.” (Id.
¶ 135.) The plaintiff says that Creighton “intentionally interfered with the criminal and serious
misconduct investigations of [Shaw,] . . . including showing up to the crime scene and retrieving
[Shaw’s] off-duty Glock handgun.” (Id. ¶ 95.) Creighton did not notify any supervisor that he
was at the scene, and accessed the accident scene because it was not secure as “consistent with
department policy.” (Id. ¶ 137.) Moreover, Solowitz instructed Shaw to “wait inside of his
department vehicle unsupervised which is inconsistent with department policy.” (Id. ¶¶ 111.)

Shaw told Solowitz that he drank “one . . . shot of patron two . . . hours prior to the
accident.” (Id. ¶ 113.) Solowitz and Muller claimed that there were no “indications that . . .
[Shaw] was intoxicated and unfit for duty.” (Id. ¶ 109.) Solowitz said that he smelled a “strong
odor of cologne” on Shaw, but not alcohol. (Id. ¶ 114.) However, Officer Matthew Grillo
smelled “a strong odor of alcohol,” and observed that Shaw was “swaying.” (Id. ¶ 117.) At
around 6:00 a.m., Officer Grillo had Shaw take a Preliminary Breath Test (“PBT”), which Shaw
failed; the test showed that Shaw’s blood alcohol level was 0.108. (Id.)
Shaw was arrested after the PBT and transported to the Intoxicated Driver Testing Unit at
the 78th Precinct. (Id. ¶ 118.) Muller, who processed Shaw’s arrest, got a warrant to take Shaw’s
blood for further testing. (Id. ¶¶ 119, 128; ECF No. 78-3 (Ex. 1, Warrant to Withdraw Blood).)
A nurse drew Shaw’s blood at 1:10 p.m., approximately eight hours after the car accident. (Id.
¶ 129.) The blood test showed “Ethanol 0.01 g% (HSGC), and no other drugs.” (Id. ¶ 132.)
None of the officer defendants who responded to or investigated the accident was
“criminally charged” (id. ¶ 152) for not activating their body cameras and not investigating the

car accident properly (id. ¶ 151). Creighton, Solowitz, and Muller received “Schedule A
Command Disciplines” and lost two days of vacation. (Id. ¶ 150.) Woodburn, Schwartz, and
Robert Grella “received Letters of Instruction.” (Id.) Dantone and Kelleher were not
disciplined. (Id.)
On December 9, 2019, the Kings County District Attorney’s Office declined to prosecute
Shaw because there was “insufficient evidence to prove [that the] defendant was
intoxicated/impaired” and because “[Muller] did not note any indication of
impairment/intoxication and deemed [the] defendant fit for duty” before the PBT test. (Id. ¶ 131;
ECF No. 78-4 (Ex. 2, Decision to Decline Prosecution of Shaw).) Although Muller “deemed

[the] defendant unfit for duty due to signs of impairment/intoxication” after he saw the PBT test
results, “the PBT test is inadmissible to prove impairment/intoxication.” (Id. ¶ 131.) On
December 16, 2019, Shaw received “five . . . department charges essentially mirroring the arrest
for driving while under the influence” (id. ¶ 133), which were amended on April 7, 2020 (id.
¶ 140).4
Shaw was also arrested after a November 2006 car accident “for driving while under the
influence and related charges” (id. ¶ 71), for which he received “five . . . department charges
essentially mirroring the arrest for driving while under the influence” (id. ¶ 72). Shaw “pled

4 The complaint does not describe the amendments.
guilty to VTL § 1192 Driving While Ability Impaired” and was sentenced to “a ninety . . . day
suspension of his driving privileges, [a] fine[ of] three hundred . . . dollars, [and] mandatory
alcohol treatment.” (Id. ¶ 73.) He was also required to “perform mandatory roll-call instruction
for members of the department for . . . thirty-five . . . outgoing platoons regarding the
consequences of driving while under the influence.” (Id.) In May 2013, Shaw pled guilty to

“rate jumping a version of insurance fraud and [was] penalized with the forfeiture of twenty-five
. . . vacation days.” (Id. ¶ 76.) He also “work[ed] without authorization as a security officer with
Elite Investigations and patronized a club.” (Id. ¶ 71.)5
LEGAL STANDARD
A complaint must be dismissed under Rule 12(b)(6) if it does not “state a claim upon
which relief can be granted.” Fed. R. Civ. P. 12(b)(6). The complaint must plead “enough facts
to state a claim to relief that is plausible on its face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544,
570 (2007). A claim is plausible on its face when the plaintiff “pleads factual content that allows
the court to draw the reasonable inference that the defendant is liable for the misconduct
alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009).

At the motion to dismiss stage, the Court “is generally limited to the facts as presented
within the four corners of the complaint, to documents attached to the complaint, or to
documents incorporated into the complaint by reference.” Williams v. Time Warner Inc., 440 F.
App’x 7, 9 (2d Cir. 2011) (quoting Taylor v. Vt. Dep’t of Educ., 313 F.3d 768, 776 (2d Cir.
2002)). The Court may consider any “documents attached to the complaint as an exhibit or
incorporated in it by reference, . . . matters of which judicial notice may be taken, or . . .

5 According to another record, Shaw was the subject of an “[u]nsubstantiated” accusation that he had
“criminal association through alleged drug sales, [with] persons accused of a double homicide . . . and
gang affiliations with the Bloods.” (Id. ¶ 77.)
documents either in [the] plaintiff[’s] possession or of which [the] plaintiff[ ] had knowledge and
relied on in bringing suit,” as long as the plaintiff relied on the “terms and effect of a document
in drafting the complaint.” Chambers v. Time Warner, Inc., 282 F.3d 147, 153 (2d Cir. 2002)
(citation omitted).
The Court considers the 2014 study by the New York City Department of Transportation

(“DOT”) and demographics based on census data, which the complaint incorporates by
reference. See Does 1-2 v. Hochul, 632 F. Supp. 3d 120, 127 n.1 (E.D.N.Y. 2022) (“When
considering a motion made pursuant to Rule 12(b)(6), the Court may take judicial notice of
documents retrieved from official government websites, or other relevant matters of public
record.” (internal quotation marks and citations omitted)).6 The Court does not consider the
notice of a deposition of a DOT employee that the plaintiff submitted with her response to the
defendant’s motion because she did not attach it to or refer to it in the complaint. See McLennon
v. City of New York, 171 F. Supp. 3d 69, 88 (E.D.N.Y. 2016) (“To be incorporated by reference,
the complaint must make a clear, definite and substantial reference to the documents.”). The

Court does not consider the affidavits that the defendants included with their motions to dismiss,
except to the extent they quote the complaint or documents that the complaint incorporates by
reference. See Kaplan v. Wings of Hope Residence, Inc., No. 18-CV-2972, 2018 WL 6437069,
at *4 (E.D.N.Y. Dec. 7, 2018) (declining to consider “additional factual assertions” in affidavits
submitted on motion to dismiss when the affidavits “assert[ed] facts in greater detail than those
in the complaint” (citation omitted)).

6 See Foster Avenue: Traffic Calming & Pedestrian Safety Improvements, N.Y.C. Dep’t of Transp. (May
21, 2014), https://www.nyc.gov/html/dot/html/about/projects-2014.shtml.
DISCUSSION
Monell Claims
The plaintiff brings two municipal liability claims against the City under 42 U.S.C.
§ 1983: (1) a claim based on the City’s alleged failure to adopt the traffic safety
recommendations in the 2014 traffic study and (2) a claim for a failure to supervise, discipline,
and train the NYPD officers. A municipality is not vicariously liable for its employees’ actions

under Section 1983. Connick v. Thompson, 563 U.S. 51, 60 (2011) (citing Monell v. Dep’t of
Soc. Servs., 436 U.S. 658, 691 (1978)). Municipalities are, however, liable for “their own illegal
acts.” Id. (quoting Pembaur v. City of Cincinnati, 475 U.S. 469, 479 (1986)).
To state a Monell claim, the plaintiff must plead five elements: “(1) actions taken under
color of law; (2) deprivation of a constitutional or statutory right; (3) causation; (4) damages; and
(5) that an official policy of the municipality caused the constitutional injury.” Roe v. City of
Waterbury, 542 F.3d 31, 36 (2d Cir. 2008). “The fifth element has two separate requirements: a
plaintiff must plausibly allege both the existence of a municipal policy and that the policy caused
(i.e., was the ‘moving force’ behind) plaintiff’s injury.” Elliott v. City of New York, No. 23-CV-
352, 2024 WL 1119275, at *9 (S.D.N.Y. Mar. 14, 2024) (citation omitted). A plaintiff may

satisfy the “official policy” requirement by pleading either “a practice so persistent and
widespread, or permanent and well settled, as to constitute a custom or usage with the force of
law and to imply the constructive knowledge of policymaking officials,” or “a failure to train or
supervise subordinates amounting to deliberate indifference to the rights of those with whom the
municipality’s employees come into contact.” Id. (internal quotation marks and citation
omitted); see also McLennon, 171 F. Supp. 3d at 95 (“To survive a motion to dismiss a
municipal liability claim, a plaintiff must allege facts tending to support, at least circumstantially,
an inference that . . . a municipal policy or custom exists.” (internal quotation marks and citations
omitted)).
As discussed below, the plaintiff’s Monell claims are dismissed because she has not pled
facts that plausibly state the existence of an official policy or custom.
a. Failure to Implement Traffic Safety Recommendations

In 2014, the New York City DOT made traffic safety recommendations in a presentation
of nine slides to a community board. (ECF No. 33 ¶ 24.) According to the study, speeding and
pedestrian and vehicular traffic accidents were common on Foster Avenue from Kings Highway
to Ralph Avenue, an area in which 95 percent of the residents were Black. (Id. ¶¶ 22, 23.) The
recommendations included roadway design changes, such as installing wide parking lanes,
painted buffers, and turn bays. See generally Foster Avenue: Traffic Calming & Pedestrian Safety
Improvements, N.Y.C. Dep’t of Transp. (May 21, 2014),
https://www.nyc.gov/html/dot/html/about/projects-2014.shtml. The plaintiff claims that the
recommendations would have “substantially improve[d]” “speeding, pedestrian and vehicular
traffic safety.” (ECF No. 33 ¶ 25.) She also contends that the City “received repeated reports of
motor vehicle accidents and complaints of ongoing speeding along Foster Avenue.” (Id. ¶ 155.)

She maintains that the City’s refusal to adopt the recommendations in the 2014 study violated
her constitutional right to freedom of movement, Title VI of the Civil Rights Act of 1964, and
the Fourteenth Amendment. (Id. ¶¶ 156, 160.) The City contends that the plaintiff cannot plead
the existence of an official policy or custom based only on the City’s decision not to implement
the recommendations nor can she plead that the City’s policy decision was the “moving force”
behind her constitutional injuries. (ECF No. 83 at 11–12.)
As an initial matter, the plaintiff does not cite any evidence, such as statistics or
substantiated complaints, to show that the City did not implement traffic safety improvements in
the Foster Avenue Corridor. Compare Elliott, 2024 WL 1119275, at *9 (rejecting motion to
dismiss Monell claim alleging that the NYPD had a practice of “target[ing] Black and Latine
persons” in its enforcement of COVID 19 social-distancing restrictions where the plaintiff cited
statistics and multiple sources with sufficient specificity), with Fantozzi v. City of New York,
No. 21-CV-4439, 2023 WL 4472305, at *5 (S.D.N.Y. July 11, 2023), aff’d, No. 23-1111, 2024

WL 1597745 (2d Cir. Apr. 12, 2024) (dismissing a failure-to-supervise claim that relied on an
OIG report and unsubstantiated complaints made against the NYPD), and Delorbe-Bell v. City of
New York, No. 15-CV-2344, 2016 WL 1451581, at *3 (S.D.N.Y. Apr. 12, 2016) (dismissing a
failure-to-discipline claim that relied solely on an OIG Report).
But even if the City did not adopt the recommendations of that single study, that is not
sufficient to allege municipal liability. See Jones v. Town of E. Haven, 691 F.3d 72, 85 (2d Cir.
2012) (evidence of two or three instances of “racially bigoted remarks,” excessive force, and
racial profiling on the part of police officers over several years “fell far short of showing a
policy, custom, or usage of officers to abuse the rights of black people”); Giaccio v. City of New

York, 308 F. App’x 470, 472 (2d Cir. 2009) (“four examples where the [City] defendants might
have disclosed [the former employee plaintiff’s] positive drug test results” to the media were
insufficient to establish municipal practice for a violation of equal protection). The study was
conducted in 2014, more than five years before the accident, and addressed traffic conditions that
existed at that time. The City’s alleged decision not to adopt the recommendations is therefore
too far removed from the accident. See Gleeson v. Cnty. of Nassau, No. 15-CV-6487, 2019 WL
4754326, at *16 (E.D.N.Y. Sept. 30, 2019) (“The cases in which other courts in this Circuit
rejected the findings of a government report as evidence of a policy or practice involved events
that were too far removed . . . to be probative of a then-existing policy or practice.”); see also
Rodriguez v. City of Westchester, No. 15-CV-9626, 2017 WL 118027, at *7 (S.D.N.Y. Jan. 11,
2017) (DOJ report written more than six years before the events in the complaint was “too stale,
and too disconnected in personnel, to plausibly allege a policy, practice, or custom”); Melvin v.
Cnty. of Westchester, No. 14-CV-2995, 2016 WL 1254394, at *15 (S.D.N.Y. Mar. 29, 2016)
(DOJ letter written more than four years before the events in the complaint was too remote in

time). With respect to the plaintiff’s allegations of community concerns over traffic safety,
“[these] allegations lack specificity as to how many complaints were made, to whom, or over
what period of time they were made.” Clarke v. Antonini, No. 21-CV-1877, 2024 WL 1347578,
at *8 (S.D.N.Y. Mar. 29, 2024) (internal quotation marks and citation omitted).
Accordingly, the claim against the City based on its failure to adopt traffic safety
recommendations is dismissed.7
b. Failure to Supervise, Discipline, and Train
To succeed on a municipal liability claim for failure to supervise, discipline, or train, a
plaintiff must establish “deliberate indifference.” Kosmidis v. Port Auth. of New York & New
Jersey, 2021 WL 4442812, at *7 (S.D.N.Y. Sept. 28, 2021) (quoting Green v. City of New York,

465 F.3d 65, 80–81 (2d Cir. 2006)). A plaintiff may satisfy the “deliberate indifference”
requirement by pleading that (1) “a policy-maker 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

7 Because the plaintiff cannot allege an official custom or practice, the Court does not address whether the
plaintiff’s constitutional rights were violated, except to note that the plaintiff does not allege that she is a
member of a protected class, which is necessary to plead a violation of equal protection based on race
discrimination. See Patterson v. City of New York, No. 16-CV-3525, 2017 WL 3432718, at *12
(E.D.N.Y. Aug. 9, 2017), aff’d, 758 F. App’x 217 (2d Cir. 2019) (“A successful Equal Protection claim
must show that the defendant intentionally discriminated against the plaintiff based on the plaintiff’s
membership in a protected class.”).
employees mishandling the situation;” and (3) “the wrong choice by the city employee will
frequently cause the deprivation of a citizen’s constitutional rights.” Id. (citation omitted). The
plaintiff must demonstrate that there was an obvious need for more or better protocols or
supervision to protect against constitutional violations, by, for example, proof of repeated
complaints of civil rights violations. Vann v. City of New York, 72 F.3d 1040, 1049 (2d Cir.

1995). “Deliberate indifference may be inferred if the complaints are followed by no meaningful
attempt on the part of the municipality to investigate or to forestall further incidents.” Id.
The plaintiff argues that the City was deliberately indifferent to the need to train,
supervise, and discipline the defendant officers, who she claims violated her rights to equal
application of the laws under the Fourteen Amendment and equal access to the courts when they
did not activate their body cameras and did not investigate the accident properly. (ECF No. 33
¶¶ 93–94, 96–97, 151, 166.) The City argues that the plaintiff has made “no allegations
regarding any related purported custom or policy at NYPD of incomplete investigations of
automobile collisions” (ECF No. 83 at 12) and that “the isolated acts of City employees are

insufficient for liability to attain against the City” (id. at 7).
The plaintiff has not made the requisite showing of deliberate indifference. She does not
“include any information about the NYPD’s training” or supervisory procedures and “has not
alleged that the ‘policymaker fail[ed] to make meaningful efforts to address the risk of harm to
[the] plaintiff[].’” Fantozzi, 2023 WL 4472305, at *5 (citation omitted). Moreover, the plaintiff
does not cite “other instances of police misconduct which could be attributed to a failure to
train.” Triano v. Town of Harrison, N.Y., 895 F. Supp. 2d 526, 539 (S.D.N.Y. 2012). A single
incident of alleged wrongdoing by individual police officers is not enough to sustain a Section
1983 claim against a municipality. See Bird v. Cnty. of Westchester, No. 20-CV-10076, 2022
WL 2263794, at *12 (S.D.N.Y. June 23, 2022) (“[The] [p]laintiff fails to allege the existence of
any other similar incident, which dooms [the p]laintiff’s claim because a custom or policy cannot
be shown by pointing to a single instance of unconstitutional conduct by a mere employee of the
municipality.” (internal quotation marks and citation omitted)); Sorlucco v. N.Y.C. Police Dep’t,
971 F.2d 864, 870 (S.D.N.Y. 1992) (noting that a “municipal agency may not be held liable

under § 1983 simply for the isolated unconstitutional acts of its employees”).
Accordingly, the claim against the City on the theory of a failure to train, supervise, and
discipline is dismissed.
Denial of Access to the Courts
The plaintiff also brings a claim for denial of access to the courts under 42 U.S.C. § 1983
against eight officer defendants. She claims that she could not get access to evidence that would
have enabled her to hold Shaw “criminally and civilly accountable for his actions” because the
defendant officers did not activate their body cameras and did not investigate the car accident
properly. (ECF No. 33 ¶ 164.) The defendants argue that the plaintiff has not alleged that she
was completely foreclosed from pursuing judicial remedies or that the inadequate investigation

of the car accident was a cover-up. (ECF No. 77 at 8–9; ECF No. 78 at 13–14; ECF No. 81 at
10–11; ECF No. 83 at 14–15.)
A claim for denial of access to the courts may be brought as a “(1) forward-looking
claim[], in which systematic official action frustrates a plaintiff . . . in preparing and filing suits
at the present time” or “(2) backward-looking claim[], which cover[s a] claim[] not in aid of a
class of suits yet to be litigated, but of specific cases that cannot now be tried (or tried with all
material evidence), no matter what official action may be in the future.” Stevens v. Webb,
No. 12-CV-2909, 2014 WL 1154246, at *7 (E.D.N.Y. Mar. 21, 2014) (cleaned up). The plaintiff
asserts a backward-looking claim. (ECF No. 85 at 21.)
The Second Circuit has not adopted a test for evaluating backward-looking claims,
Oudekerk v. Doe #1, No. 24-CV-0113, 2024 WL 2830579, at *6 (N.D.N.Y. June 4, 2024), and
“[t]he viability of backward-looking right-of-access claims is far from clear,” Sousa v. Marquez,
702 F.3d 124, 128 (2d Cir. 2012) (citation omitted). In general, courts in this circuit consider
four elements. Jean-Laurent v. Lawrence, No. 12-CV-1502, 2015 WL 1208318, at *4 (S.D.N.Y.

Mar. 17, 2015). The plaintiff must plead (1) “a nonfrivolous, arguable underlying claim,” (2)
“that the defendant took or was responsible for actions that hindered a plaintiff’s efforts to
pursue a legal claim,” (3) “that the defendant’s alleged conduct was deliberate and malicious,”
and (4) “that the defendant’s actions resulted in an actual injury to the plaintiff.” Id. (internal
quotation marks and citations omitted). “[I]f recognized, [backward-looking claims] would be
available only if the government action caused the plaintiff’s suit to be dismissed as untimely, . .
. or if official misconduct was so severe as to render[ ] hollow his right to seek redress, . . . [such
as] if a judicial remedy was completely foreclosed by false statement or nondisclosure.” Sousa,
702 F.3d at 128. (internal quotation marks and citations omitted).

At this stage, “it is premature to allege that the [d]efendants’ alleged misconduct has
‘completely foreclosed’ any judicial remedy against the [d]efendants.” Ighault v. City of New
York, No. 22-CV-3196, 2024 WL 1623321, at *3 (E.D.N.Y. Apr. 15, 2024) (citing Sousa, 702
F.3d at 128). Indeed, the plaintiff’s state law claims “will survive this decision.” Id.8
Accordingly, the plaintiff has not demonstrated that she is precluded from litigating her state law
claims in state court. See Kern v. Contento, No. 21-1672, 2022 WL 1112767, at *3 (2d Cir. Apr.
14, 2022) (“Because [the plaintiff] is actively litigating the state law claims underlying her

8 As explained below, the Court declines to exercise supplemental jurisdiction over the plaintiff’s state
law claims.
access claim, what effect (if any) the alleged misconduct had on those underlying claims cannot
now be determined.”); Taranto v. Putnam Cnty., No. 21-CV-2455, 2023 WL 6318280, at *13
(S.D.N.Y. Sept. 28, 2023) (dismissing the plaintiffs’ backward-looking access claim where the
“[p]laintiffs’ claims are clearly not foreclosed as they are bringing them in this very Action and
have not argued that any claims have been foreclosed”).

Accordingly, the plaintiff’s claim for denial of access to the courts is dismissed.9
State Law Claims
Finally, the plaintiff alleges New York Dram Shop Act, negligence, and negligence per
se claims. Because the Court has dismissed the plaintiff’s federal claims, the Court declines to
exercise supplemental jurisdiction over her state law claims. See Brzak v. United Nations, 597
F.3d 107, 113–14 (2d Cir. 2010) (“We have said that if a plaintiff's federal claims are dismissed
before trial, the state claims should be dismissed as well.” (internal quotation marks and citation
omitted)); Wolfinger v. Consol. Edison Co. of N.Y., Inc., No. 17-CV-1710, 2018 WL 3637964, at
*12 (E.D.N.Y. July 31, 2018) (“Where a court dismisses all claims over which it has original
jurisdiction, it may, in its discretion, decline to exercise supplemental jurisdiction over remaining

claims.” (citing 28 U.S.C. § 1367(c)(3))).

9 Because the plaintiff did not state a claim for denial of access to the courts, the Court does not address
the defendants’ arguments that they are entitled to qualified immunity.
CONCLUSION
For the reasons above, the plaintiff’s federal claims are dismissed. The Court declines to
exercise jurisdiction over the plaintiff’s state law claims.

SO ORDERED.
s/Ann M. Donnelly
___________________________
ANN M. DONNELLY
United States District Judge
Dated: Brooklyn, New York
August 8, 2024

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10659149. Public record. Not legal advice.