# Keith

> District Court, N.D. New York · January 21, 2026

URL: https://www.frixlaw.com/law-library/cases/11245814

## Case

- **Full name:** David Keith v. Carlos Romain
- **Court:** District Court, N.D. New York
- **Decided:** January 21, 2026
- **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/11245814

## How later opinions describe it (automated extraction)

- explaining that, to state an official policy claim under Monell, the plaintiff “must do more than simply state that a municipal policy . . . exists”

## Opinion text

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK

DAVID KEITH,
Plaintiff,
V.
No. 5:25-CV-758
CARLOS ROMAIN, (AMN/PJE)
Defendant.

APPEARANCES:
David Keith
416 Stinard Avenue
Syracuse, New York 13207
Plaintiff pro se

PAUL J. EVANGELISTA
U.S. MAGISTRATE JUDGE

REPORT-RECOMMENDATION AND ORDER’
|. In Forma Pauperis
Plaintiff pro se David Keith (“plaintiff’) commenced this action on June 13, 2025,
by filing a complaint.2 See Dkt. No. 1. In lieu of paying this Court’s filing fee, plaintiff
ti] Submitted an application for leave to proceed in forma pauperis (“IFP”). See Dkt. No. 2.
The undersigned has reviewed plaintiffs IFP application and determines that he

1 This matter was referred to the undersigned for Report-Recommendation and Order pursuant to 28 U.S.C.
§ 636(b) and N.D.N.Y. L.R. 72.3(d).
? Plaintiff has filed four other actions with this Court. See Keith v. City of Syracuse, et al., 5:00-CV-0053
(FUS/GS) (terminated Nov. 14, 2001); Keith v. Mahar, et al., 5:24-CV-1244 (BKS/MJk) (terminated Apr. 2,
2025); Keith v. Mahar, et al., 5:24-CV-1391 (BKS/MJK) (currently active); Keith v. Romain, 5:25-CV-0747
(AMN/PYE) (currently active).

financially qualifies to proceed IFP.* Pursuant to this review, this Court must now assess
the merits of plaintiff's complaint pursuant to 28 U.S.C. §§ 1915; 1915A.4
ll. Initial Review Legal Standards
28 U.S.C. § 1915 directs that, when a plaintiff seeks to proceed IFP, “the court shall
dismiss the case at any time if the court determines that .. . the action or appeal (i) is
"| frivolous or malicious: (ii) fails to state a claim on which relief may be granted; or (iii) seeks
monetary relief against a defendant who is immune from such relief.” 28 U.S.C. §
1915(e)(2)(B). “Thus, it is a court’s responsibility to determine that a plaintiff may properly
maintain his complaint before permitting him to proceed further with his action.” Praileau
v. Fischer, 930 F. Supp. 2d 383, 394 (N.D.N.Y. 2013).
Where, as here, the plaintiff proceeds pro se, “the court must construe his

submissions liberally and interpret them to raise the strongest arguments that they
suggest.” Kirkland v. Cablevision Sys., 760 F.3d 223, 224 (2d Cir. 2014) (per curiam)
(internal quotation marks and citation omitted). As the Second Circuit stated,
[tIhere are many cases in which we have said that a pro se
litigant is entitled to special solicitude, that a pro se litigant’s
submissions must be construed liberally, and that such
submissions must be read to raise the strongest arguments
that they suggest. At the same time, our cases have also
indicated that we cannot read into pro se submissions claims
tri that are not consistent with the pro se litigant’s allegations, or
arguments that the submissions themselves do not suggest,
that we should not excuse frivolous or vexatious filings by pro
se litigants, and that pro se status does not exempt a party
from compliance with relevant rules of procedural and
substantive law. . . .
3 Plaintiff is advised that although he has been granted IFP status, he is still required to pay any fees and
costs they may incur in this action, including, but not limited to, copying fees, transcript fees, and witness
fees.
4 These requirements apply equally to non-prisoner pro se litigants. See N.D.N.Y. L.R. 72.3(d) (“Unless
the Court orders otherwise, any civil action that a non-prisoner pro se litigant commences shall be referred
to a Magistrate Judge for the purpose of review under 28 U.S.C. §1915(e)(2) and 28 U.S.C. §1915A when
an application to proceed in forma pauperis is filed.”).

Triestman v. Fed. Bureau of Prisons, 470 F.3d 471, 477 (2d Cir. 2006) (internal quotation
marks, citations, and footnote omitted); see also Sealed Plaintiff v. Sealed Defendant, 537
F.3d 185, 191 (2d Cir. 2008) (“On occasions too numerous to count, we have reminded
district courts that when [a] plaintiff proceeds pro se, . . . a court is obligated to construe
his pleadings liberally.”) (internal quotation marks and citations omitted). Thus, the Court
is not required to accept unsupported allegations that are devoid of sufficient facts or
claims. Although detailed allegations are not required at the pleading stage, the complaint
must still include enough facts to provide the defendants with notice of the claims against
them and the grounds upon which these claims are based. See Ashcroft v. Iqbal, 556
U.S. 662, 678 (2009); see also Bell Atlantic v. Twombly, 550 U.S. 544, 555-56 (2007).
Ultimately, the plaintiff must plead “enough facts to state a claim to relief that is plausible
on its face.” Twombly, 550 U.S. at 570; see Iqbal, 556 U.S. at 678 (“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.”).
“The [Second Circuit]’s ‘special solicitude’ for pro se pleadings has its limits,
because pro se pleadings still must comply with . . . the Federal Rules of Civil Procedure.”°
Kastner v. Tri State Eye, No. 19-CV-10668 (CM), 2019 WL 6841952, at *2 (S.D.N.Y. Dec.
" 13, 2019) (quoting Ruotolo v. IRS, 28 F.3d 6, 8 (2d Cir. 1994)).® Specifically, Rule 8
provides that a pleading which sets forth a claim for relief shall contain, among other
things, “a short and plain statement of the claim showing that the pleader is entitled to
relief.” Feb. R. Civ. P. 8(a)(2). “The purpose . . . is to give fair notice of the claim being

5 Hereinafter, “Fed. R. Civ. P.”
8 All unpublished opinions cited in this Report-Recommendation and Order, unless otherwise noted, have
been provided to plaintiff.

asserted so as to permit the adverse party the opportunity to file a responsive answer,
prepare an adequate defense and determine whether the doctrine of res judicata is
applicable.” Flores v. Graphtex, 189 F.R.D. 54, 55 (N.D.N.Y. 1999) (internal quotation
marks and citations omitted). Rule 8 also requires the pleading to include “a short and
plain statement of the grounds for the court’s jurisdiction ... and ...ademand for the
"| relief sought... □□ Feb. R. Civ. P. 8(a). Although “[n]o technical form is required,” the
Federal Rules make clear that each allegation contained in the pleading “must be simple,
concise, and direct.” Feb. R. Civ. P. 8(d).
Further, Rule 10 provides in pertinent part that:
[a] party must state its claims or defenses in numbered
paragraphs, each limited as far as practicable to a single set
of circumstances. A later pleading may refer by number to a
paragraph in an earlier pleading. If doing so would promote
clarity, each claim founded on a separate transaction or
occurrence—and each defense other than a denial—must be
stated in a separate count or defense.
R. Civ. P. 10(b). This serves the purpose of “provid[ing] an easy mode of
identification for referring to a particular paragraph in a prior pleading[.]” Flores, 189
F.R.D. at 55 (internal quotation marks and citations omitted). A complaint that fails to
comply with the pleading requirements “presents far too a heavy burden in terms of

defendants’ duty to shape a comprehensive defense and provides no meaningful basis
for the Court to assess the sufficiency of their claims.” Gonzales v. Wing, 167 F.R.D. 352,
355 (N.D.N.Y. 1996). As the Second Circuit has held, “[w]hen a complaint does not
comply with the requirement that it be short and plain, the court has the power, on its own
initiative . . . to dismiss the complaint.” Salahuddin v. Cuomo, 861 F.2d 40, 42 (2d Cir.
1988) (citations omitted). However, “[d]ismissal . . . is usually reserved for those cases in

which the complaint is so confused, ambiguous, vague, or otherwise unintelligible that its
true substance, if any, is well disguised.” /d. (citations omitted).

lll. Discussion
A. Plaintiff's Complaint’
Plaintiff states that his Fourth Amendment rights have been violated. See Dkt. No.

1 at 3. Plaintiff's complaint is based on the following events. On June 13, 2023, at 12:36
P.M., plaintiff was in front of Syracuse City Hall — which he provides as located at 233
East Washington Street, Syracuse — speaking with City Councilman Chol Majok. See id.
at 2. While speaking with Councilman Majok, Sergeant Romain “approached” and
threatened plaintiff that if he did not leave, he would be arrested for trespassing. /d.; see
Dkt. No. 1-1. Plaintiff seeks $30,000 in damages and an order directing Sergeant Romain
“| to “be retrained on the United States Constitution.” /d. at 4.
B. Analysis®
Liberally construing plaintiff's complaint, plaintiff seeks to proceed pursuant to 42
U.S.C. § 1983 against Carlos Romain (“Romain”) for allegedly violating his Fourth
Amendment right against unlawful seizure and First Amendment right to freedom of
assembly. See generally Dkt. No. 1; see a/so Triestman, 470 F.3d at 475 (“This policy of

? Plaintiff included one attachment with his complaint. See Dkt. No. 1-1. This attachment has also been
reviewed in connection with the initial review of plaintiff's complaint. See Sira v. Morton, 380 F.3d 57, 67
(2d Cir. 2004) (“A complaint is deemed to include any written instrument attached to it as an exhibit,
materials incorporated in it by reference, and documents that, although not incorporated by reference, are
integral to the complaint.”) (internal quotation marks and citations omitted).
Plaintiffs civil cover sheet checks the box indicating “U.S. Government” as the basis of jurisdiction. See
Dkt. No. 1-1. However, the United States Government is not named as a defendant in this action. See
generally Dkt. No. 1. Reading plaintiffs complaint liberally and affording him due solicitude, it appears
plaintiff likely intended to mean that his claims involve federal question jurisdiction. See Cinotti v. Adelman,
709 F. App’x 39, 40 (2d Cir. 2017) (summary order) (“[A]lthough [the plaintiff's] pro se complaint does not
refer to 42 U.S.C. § 1983, the district court should have construed it liberally as asserting § 1983 claims,
which provide a basis for federal question jurisdiction.”).

liberally construing pro se submissions is driven by the understanding that ‘[i]mplicit in the
right of self-representation is an obligation on the part of the court to make reasonable
allowances to protect pro se litigants from inadvertent forfeiture of important rights
because of their lack of legal training.””) (quoting Traguth v. Zuck, 710 F.2d 90, 95 (2d Cir.
1983)). More specifically, plaintiff alleges that Romain violated his Fourth Amendment
right against unlawful seizure when Romain threatened to arrest him for speaking with
Councilman Majok and trespassing, despite 233 East Washington Street being “an area
[he was] legally allowed to be.” /d. at 2-3.
1. Fed. R. Civ. P. 8
As a threshold matter, plaintiff's complaint fails to satisfy the pleading requirements
of Rule 8. See Feb. R. Civ. P. 8(a). Plaintiff's complaint does not provide “a short and

_,| plain statement of the claim showing” why he is entitled to relief. /d. Plaintiff's complaint
alleges that Romain unlawfully threatened to arrest him if he did not leave the premises
at 233 East Washington Street in violation of his Fourth Amendment right against unlawful
seizure. See Dkt. No. 1 at 2-3. Yet, plaintiff has not alleged enough to assert that he was
actually detained within the meaning of the Fourth Amendment.° Plaintiff does not
describe the events immediately preceding Romain’s alleged threat or his interactions

With Romain before, during, or after he was threatened. See id. Plaintiff does not provide
any details or context explaining the facts and circumstances surrounding the nature of
the alleged threat, including, but not limited to, the manner in which he was threatened,
the words Romain used to threaten him, or Romain’s actions after he threatened plaintiff.
Without this information, plaintiff's complaint does not provide “fair notice of the claim[s]

° The undersigned discusses this in greater detail below. See infra at 7-9.

being asserted” against defendants such that they would have an adequate opportunity
to file an answer and “prepare an adequate defense.” Flores, 189 F.R.D. at 55; Feb. R.
Civ. P. 8(a)(2). Therefore, the undersigned recommends that plaintiff's complaint, insofar
as it raises a claim alleging that Romain violated his Fourth Amendment right against
unlawful seizure, be dismissed without prejudice and with leave to amend for failure to
satisfy Rule 8’s pleading requirements. See Salahuddin, 861 F.2d at 42; Feb. R. Civ. P.
8(a)(2).
2. Fourth Amendment Seizure
The Fourth Amendment guarantees “[t]he right of the people to be secure in their
persons, houses, papers, and effects, against unreasonable searches and seizures .. .”
U.S. Const. amend. IV. “The Fourth Amendment prohibits ‘police seizures of persons for

custodial interrogation-even brief detentions falling short of arrest-without probable
cause.” Clarke v. Cnty. of Broome, No. 1:10-CV-399 MAD/ATB, 2012 WL 1005086, at *6
(N.D.N.Y. Mar. 23, 2012) (quoting Cerrone v. Brown, 246 F.3d 194, 199 (2d Cir.2001)).
“The protections of the Fourth Amendment are limited to rights violated through
unreasonable searches and seizures.” /d. (citing County of Sacramento v. Lewis, 523
U.S. 833, 844 (1998)). “[E]ven unreasonable, unjustified, or outrageous conduct by an

m| Officer is not prohibited by the Fourth Amendment if it does not involve a seizure . . . or
...asearch.” /d. (quoting Dick v. Gainer, 1998 WL 894649, at *2 (7th Cir.1998)).
“In order for a seizure to occur, the subject must ‘yield’ to the assertion of authority
over him and thereby have his liberty restrained.” Clarke, 2012 WL 1005086, at *6
(quoting Britton v. Maloney, 196 F.3d 24, 30 (1st Cir.1999) (citing California v. Hodari D.,
499 U.S. 621, 626 (1991))). “If there is a show of authority without use of physical force,

there can be no seizure unless there is also ‘actual submission’ to the show of authority.”
Id. (quoting Hodari D., 499 U.S. at 626 n. 2). “To determine whether an encounter
constitutes a seizure, ‘a court must consider the totality of the circumstances and
ascertain whether the police conduct would have communicated to a reasonable person
that she was free to terminate the encounter.” /d. (quoting Saenz v. Lucas, No. 07 CIV.
"110534 (WCC), 2008 WL 2735867, at *3 (S.D.N.Y. July 9, 2008) (citing inter alia U.S. v.
Glover, 957 F.2d 1004, 1008 (2d Cir.1992)). The Second Circuit has noted that the
[flactors suggesting that a seizure has occurred include: the threatening
presence of police officers; the display of a weapon; physical contact by the
officer; language indicating that compliance with the officer is compulsory;
prolonged retention of a person's belongings; and a request by an officer to
accompany him or her to the police station or a police room.
Id. (citing Gardiner v. Inc. Vill. of Endicott, 50 F.3d 151, 155 (2d Cir.1995).
“While a seizure may occur regardless of whether the plaintiff was actually taken
into custody . . . the mere threat of an arrest, without more, does not give rise to a seizure
under the Fourth Amendment.” Clarke, 2012 WL 1005086, at “7 (citing Bodek v. Bunis,
No. 06-CV-6022L (DGL), 2007 WL 1526423, at *9 (W.D.N.Y. May 23, 2007)). “In
situations involving the threat of an arrest, ‘[t]he crucial test if whether, taking into account
all of the circumstances surrounding the encounter, the police conduct would have
m|COMmunicated to a reasonable person that he was not at liberty to ignore the police
presence and go about his business.” /d. (quoting Bodek, 2007 WL 1526423, at *9) (citing
Florida v. Bostick, 501 U.S. 429, 437 (1991) (“In cases where the in the plaintiff's freedom
of movement is restricted by a factor independent of police conduct, the appropriate
inquiry is whether a reasonable person would feel free to decline the officers’ requests or

otherwise terminate the encounter.”))); see also U.S. v. Lee, 916 F.2d 814, 819 (2d Cir.
1980).
Here, as discussed above, plaintiff states only that on June 13, 2023, Romain told
him he would be arrested for trespassing if he did not leave the area in front of 233 East
Washington Street. See supra at 5; Dkt. No. 1 at 2-3; Dkt. No. 1-1. Plaintiff has not
provided any detail regarding his interactions with Romain or Romain’s purported threat.
More specifically, plaintiff has not alleged whether (1) Romain’s presence was
threatening, (2) Romain displayed a weapon, (3) there was any physical contact with
Romain, or (4) Romain retained any of his belongings. See Clarke, 2012 WL 1005086,
at *6 (citing Gardiner, 50 F.3d at 155). Therefore, the undersigned concludes that plaintiff
has not demonstrated that he was unlawfully seized or that Romain’s alleged threat to

_,| arrest plaintiff for trespassing constituted an unreasonable seizure that violated plaintiff's
Fourth Amendment rights. See id. at *7. Accordingly, the undersigned recommends that
plaintiff's Fourth Amendment claim against Romain in his individual capacity be dismissed
without prejudice and with leave to amend. See id. at *6-7.
3. First Amendment Right of Assembly
Reading plaintiff's complaint liberally and affording him due solicitude, by
m| contending that he was in an “area [he was] legally allowed to be,” Compl. at 2-3, and
Romain told him to leave or be arrested for trespassing, plaintiff may be arguing that
Romain violated his First Amendment right of assembly and his ability to congregate “in
front of’ Syracuse City Hall at 233 East Washington Street. Dkt. No. 1 at 2-3.
“The First Amendment prohibits the government from ‘abridging the freedom of
speech, or of the press,’ and guarantees ‘the right of the people to peaceably assemble.”

Foote v. Bd. of Educ. of Whitehall Cent. Sch. Dist., No. 1:22-CV-0815 (GTS/CFH), 2024
WL 3376651, at *17 (N.D.N.Y. July 11, 2024) (quoting Johnson v. Perry, 859 F.3d 156,
171 (2d Cir. 2017) (quoting U.S. Const. Amend. 1.)). “Generally, government officials may
stop or disperse public demonstrations or protests where clear and present danger of riot,
disorder, interference with traffic upon the public streets, or other immediate threat to
public safety, peace, or order, appears.” Id. (quoting Johnson, 859 F.3d at 171 (quoting
Papineau v. Parmley, 465 F.3d 46, 56-57 (2d Cir. 2006))) (internal quotation marks
omitted). “The First and Fourteenth Amendments do not permit [the government] to make
criminal the exercise of the right of assembly simply because its exercise may be
‘annoying’ to some people.” Frierson v. Reinisch, No. 1:17-CV-44 (MAD/CFH), 2021 WL
4405911, at *3 (N.D.N.Y. Sept. 27, 2021), aff'd sub nom. Frierson v. Troy City Sch. Dist.,
21-2555-CV, 2023 WL 4441980 (2d Cir. July 11, 2023) (quoting Coates v. City of
Cincinnati, 402 U.S. 611, 615 (1971)). “However, nothing in the Constitution requires the
Government freely to grant access to all who wish to exercise their right to free speech
on every type of Government property without regard to the nature of the property or to
the disruption that might be caused by the speaker’s activities.” Foote, 2024 WL 3376651,
at *17 (quoting Johnson, 859 F.3d at 171 (quoting Cornelius v. NAACP Legal Defense &

m| duc. Fund, Inc., 473 U.S. 788, 799-800, (1985) (internal quotation marks omitted))).
“Where there is no clear and present danger, speech restrictions imposed on
[persons on] government-owned property are analyzed under a forum-based approach.”
Id. (internal quotation marks and additional citations omitted). Foote, 2024 WL 3376651,
at *17. Under the forum-based approach, “the level of scrutiny to which the restriction is
subjected depends on how the property is categorized as a forum for speech.” Frierson,

10

2021 WL 4405911, at *4 (quoting Am. Freedom Def. Initiative v. Metro. Transp. Auth., 880
F. Supp. 2d 456, 469 (S.D.N.Y. 2012)). “ln the Second Circuit, there are four
classifications of government property: (1) traditional public fora, (2) designated public
fora, (3) limited public fora, and (4) nonpublic fora.” /d. (citing R.O. ex rel. Ochshorn v.
Ithaca City Sch. Dist., 645 F.3d 533, 539 (2d Cir. 2011)). “Once the court determines the
forum, it ‘then applies the requisite standards for that forum to the challenged speech
restriction.” /d. (quoting Am. Freedom Def. Initiative, 880 F. Supp. 2d at 469).
Here, plaintiff claims that he was speaking to Councilman Chol Mok in front of
Syracuse City Hall when Romain threatened to arrest him for trespassing. See Dkt. No.
1 at 2-3; Dkt. No. 1-1. However, plaintiff does not describe the area in front of Syracuse
City Hall where the conversation with Councilman Chol Mok took place or the nature and

substance of conversation itself. In its current form, plaintiff's complaint is unclear at best
as to where he was standing during his conversation with Councilman Chol Mok, what
was discussed during the conversation, or why Romain removed him from the area in
front of Syracuse City Hall. See generally Dkt. No. 1. Without this additional information,
judicial review is frustrated, and the undersigned is unable to evaluate what classification
of forum the area “in front of City Hall” consists of and, in turn, what level of scrutiny, if
many, plaintiff's speech was entitled to, or if Romain’s directive to leave the area in front of
Syracuse City Hall violated plaintiff's First Amendment right of assembly. Foote, 2024 WL
3376651, at *17; Frierson, 2021 WL 4405911, at *4. Accordingly, the undersigned
recommends that insofar as plaintiff's complaint could be interpreted as raising a claim
against Romain in his individual capacity alleging a violation of his First Amendment right
of assembly, such claim be dismissed without prejudice and with leave to amend.

11

4. Monell
Plaintiff's complaint does not name or specify the entity or organization that
Romain worked for on June 13, 2025. See generally Dkt. No. 1. Plaintiff's only references
to Romain’s employment are that Romain is a “Sergeant,” and his address is listed as
“511 S. State Street, Syracuse, New York, 13202.” Dkt. No. 1 at 1. The 511 South State
Street address is an address listed for the Syracuse Police Department.'® Affording
plaintiff due solicitude plaintiff is stating that Romain is a sergeant with the City of
Syracuse Police Department. See id. at 1-3. To the extent that plaintiff seeks to proceed
against Romain in his official capacity as a sergeant with the Syracuse Police Department,
plaintiff can only proceed with section 1983 claims pursuant to Monell.
“Municipalities may be sued directly under [Section] 1983” pursuant to Monell v.

_,| Department of Social Services, 436 U.S. 658 (1978) “for constitutional deprivations
inflicted upon private individuals pursuant to governmental custom, policy, ordinance,
regulation, or decision.” Batista v. Rodriguez, 702 F.2d 393, 397 (2d Cir. 1983) (citing
Monell, 436 U.S. at 690-91). “To set forth a cognizable claim for municipal liability under
§ 1983, a plaintiff must plead that a deprivation of his constitutional rights was ‘caused by
a governmental custom, policy, or usage of the municipality.” Dougal v. Lewicki, No. 1:23-
m|CV-1167 (DNH/CFH), 2023 WL 6430586, at *10 (N.D.N.Y. Oct. 3, 2023), report and
recommendation adopted, 2023 WL 7013384 (N.D.N.Y. Oct. 25, 2023) (quoting Jones v.
Town of E. Haven, 691 F.3d 72, 80 (2d Cir. 2012) (citing Monell, 436 U.S. at 690-91)).
“Municipalities may only be held liable when the municipality itself deprives an individual
of a constitutional right; it ‘may not be held liable on a theory of respondeat superior.” /d.

10 SYRACUSE, NEW YORK, “Police- Contact Information” https:/Awww.syr.gov/Departments/Police/Shared-
Content-Police/Police-Contact-Information (last visited Jan. 20, 2026).
12

(quoting Jeffes v. Barnes, 208 F.3d 49, 56 (2d Cir. 2000)). An “official policy or custom”
can be pleaded as follows:
(1) a formal policy officially endorsed by the municipality; (2) actions taken
by government officials responsible for establishing municipal policies
related to the particular deprivation in question; (3) a practice so consistent
and widespread that it constitutes a ‘custom or usage’ sufficient to impute
constructive knowledge of the practice to policymaking officials; or (4) a
failure by policymakers to train or supervise subordinates to such an extent
that it amounts to ‘deliberate indifference’ to the rights of those who come
in contact with the municipal employees.
Id. (quoting Dorsett-Felicelli, Inc. v. Cty. of Clinton, 371 F. Supp. 2d 183, 194 (N.D.N.Y.
2005)) (internal citations omitted); see also Santos v. New York City, 847 F. Supp. 2d 573,
576 (S.D.N.Y. 2012) (explaining that, to state an official policy claim under Monell, the
plaintiff “must do more than simply state that a municipal policy . . . exists”); Coleman v.
Cnty. of Suffolk, 685 F. App’x 69, 72 (2d Cir. 2017) (summary order) (“Where . . . the
conduct of individual defendant officers does not violate the plaintiffs constitutional rights,
the municipality is generally not liable for a policy or practice pursuant to which the
conduct was performed.”); Fleming v. City of New York, No. 18-CV-4866 (GBD/JW), 2023
WL 1861223, at *1 (S.D.N.Y. Feb. 9, 2023) (noting that, in some situations, a municipality
may be held liable under Monell even if a plaintiff is unable to establish liability against
individual defendants).
tt
Under Monell, the proper defendant is the municipality itself, and a claim may only
proceed against a municipality within the limited confines of Monell. See Batista, 702
F.2d at 397 (citing Monell, 436 U.S. at 690-91). Here, plaintiff has not pled that his
constitutional rights were violated due to an official City of Syracuse policy, a persistent
and widespread custom or practice, failure to train or supervise, or because a policy-
making official's deliberate conduct deprived him of a constitutional right. See Dougal,

13

2023 WL 6430586, at *10 (quoting Dorsett-Felicelli, Inc., 371 F. Supp. 2d at 194); see
also Lucente v. Cnty. of Suffolk, 980 F.3d 284, 297-98 (2d Cir. 2020). Instead, he
summarily concludes that Romain violated his rights by telling him to leave the area in
front of Syracuse City Hall and threatening to arrest him for trespassing. Dkt. No. 1 at 2-
3. However, as discussed above, “a municipality may not be held liable under 1983 ‘solely
because it employs a tortfeasor.” Mulqueen v. Herkimer Cnty. Child Protective Servs.,
No. 6:22-CV1-301 (TJM/ATB), 2023 WL 4931679, at *6 (N.D.N.Y. Aug. 2, 2023), report
and recommendation adopted, No. 6:22-CV-1301 (BKS/MJK), 2024 WL 756833
(N.D.N.Y. Feb. 23, 2024) (citing Cowan v. City of Mt. Vernon, 95 F. Supp. 3d 624, 636
(S.D.N.Y. 2015) (quoting Bd. of Cnty. Comm'rs v. Brown, 520 U.S. 397, 403 (1997)):
Dougal, 2023 WL 6430586, at *10 (quoting Jeffes, 208 F.3d at 56).
Therefore, it is further recommended that to the extent plaintiff raises a claim
against the City of Syracuse such a claim be dismissed for failure to sufficiently plead a
Monell claim. See id. (quoting Monell, 436 U.S. at 691 n. 55); Dougal, 2023 WL 6430586,
at *10 (quoting Dorsett-Felicelli, Inc., 371 F. Supp. 2d at 194). Accordingly, as it is possible
that plaintiff may potentially be able to amend his complaint to plead that his constitutional
rights were violated due to an official City of Syracuse policy, persistent and widespread
custom or practice, a failure to train or supervise, or because a policy-making official’s
deliberate conduct deprived him of constitutional rights, the undersigned recommends
that plaintiff's claim against the City of Syracuse, be dismissed without prejudice and with
leave to renew.
6. Leave to Amend

14

Generally, “[a] pro se complaint should not be dismissed without the Court granting
leave to amend at least once when a liberal reading of the complaint gives any indication
that a valid claim might be stated.” Romano v. Lisson, 711 F. App'x 17, 19 (2d Cir. 2017)
(summary order) (quoting Nielsen v. Rabin, 746 F.3d 58, 62 (2d Cir. 2014) (quotation
omitted)). “However, if the problems with a complaint are ‘substantive’ rather than the
result of an ‘inadequately or inartfully pleaded’ complaint, an opportunity to re-plead would
be ‘futile’ and ‘should be denied.” Edwards v. Penix, 388 F. Supp. 3d 135, 144-45
(N.D.N.Y. 2019) (quoting Cuoco v. Moritsugu, 222 F.3d 99, 112 (2d Cir. 2000)).
Here, plaintiff's Fourth Amendment unlawful seizure and First Amendment right of
assembly claims against Romain in his individual capacity may potentially be cured by a
better pleading. Similarly, it is possible that plaintiff could amend to plead a Monell claim.

_,| Accordingly, it is recommended that insofar as plaintiff seeks to proceed against the City
of Syracuse or against Romain in his individual capacity for violating his Fourth
Amendment and First Amendment rights, such claims be dismissed without prejudice and
with leave to amend."
IV. Conclusion
WHEREFORE, for the reasons set forth herein, it is hereby
tri ORDERED, that plaintiffs application to proceed in forma pauperis (Dkt. No. 2) is
GRANTED; and it is

™ In the event the District Judge adopts the undersigned’s Report-Recommendation & Order and plaintiff is
permitted to file an amended complaint, plaintiff is advised that any amended pleading cannot incorporate
a prior pleading by reference and may not attempt to replead claims that have already been dismissed by
this Court with prejudice. Any amended pleading supersedes and replaces a prior pleading in its entirety.
An amended pleading must establish this Court’s jurisdiction and state a claim for relief against each named
defendant for whom leave to replead was granted according to Rules 8 and 10 of the Federal Rules of Civil
Procedure.
15

RECOMMENDED, that plaintiffs complaint (Dkt. No. 1) be DISMISSED without
prejudice and with leave to amend; and it is further
RECOMMENDED, that if the District Judge adopts this Report-Recommendation
& Order, plaintiff be given thirty days from the filing date of the District Judge’s Order
adopting this Report-Recommendation and Order to file an amended complaint, and if
plaintiff does not so file pursuant to that Decision & Order, the action may be closed
without need for further order of the Court, and if plaintiff does so file, the amended
complaint be noticed for substantive sufficiency review pursuant to 28 U.S.C. §
1915(e)(2)(B); and it is
ORDERED, that the Clerk serve a copy of this Report-Recommendation and Order
on plaintiff in accordance with Local Rules.

IT IS SO ORDERED.
Pursuant to 28 U.S.C. § 636(b)(1), plaintiff has FOURTEEN (14) days within which
to file written objections to the foregoing report. Such objections shall be filed with the
Clerk of the Court. FAILURE TO OBJECT TO THIS REPORT WITHIN FOURTEEN (14)
DAYS WILL PRECLUDE APPELLATE REVIEW. See Roldan v. Racette, 984 F.2d 85,
89 (2d Cir. 1993) (citing Small v. Sec’y of Health and Human Servs., 892 F.2d 15 (2d Cir.

m| 1989)); see also 28 U.S.C. § 636(b)(1); FED. R. Civ. P. 6(a), 72.12
Dated: January 21, 2026
Albany, New York KC \ wo?

Paul J. Evangelista
U.S. Magistrate Judge
12 If you are proceeding pro se and are served with this Report-Recommendation and Order by mail, three
(3) additional days will be added to the fourteen-day (14) period, meaning that you have seventeen (17)
days from the date the Report-Recommendation and Order was mailed to you to serve and file objections.
See FED. R. Civ. P. 6(d). If the last day of that prescribed period falls on a Saturday, Sunday, or legal holiday,
then the deadline is extended until the end of the next day that is not a Saturday, Sunday, or legal holiday.
See id. § 6(a)(1)(c).
16

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/11245814. Public record. Not legal advice.