Douglas

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF NEW YORK

____________________________________________

KESHIA DOUGLAS,

Plaintiff,

vs. 1:24-CV-807

(MAD/PJE)

ALBANY POLICE DEPARTMENT and

ALBANY COUNTY DISTRICT ATTORNEY,

Defendants.

____________________________________________

APPEARANCES: OF COUNSEL:

KESHIA DOUGLAS

PO Box 3812

Albany, New York 1220

Plaintiff, pro se

THE REHFUSS LAW FIRM, P.C. STEPHEN J. REHFUSS, ESQ.

40 British American Boulevard

Latham, New York 12110

Attorneys for Defendants

Albany Police Department

and Albany County District Attorney

ALBANY COUNTY DEPARTMENT CHRISTINE FERNANDEZ, ESQ.

OF LAW

112 State Street

Albany, New York 12207

Attorneys for Defendants

Albany Police Department

and Albany County District Attorney

LAW OFFICE OF MEGAN B. MEGAN B. VAN AKEN, ESQ.

VAN AKEN

69 State Street, Suite 1200g

Albany, NY 12207

Attorney for Defendant Albany County

District Attorney

Mae A. D'Agostino, U.S. District Judge:

MEMORANDUM-DECISION AND ORDER

I. INTRODUCTION

On June 23, 2024, Plaintiff Keshia Douglas ("Plaintiff") filed a complaint, pro se,

against the Albany Police Department ("APD") and Albany County District Attorney ("District

Attorney's Office") (collectively, "Defendants") alleging violations of her Fourteenth Amendment

Due Process Rights. See Dkt. No. 1. Plaintiff seeks monetary damages and a declaratory

judgment. See id. On April 25, 2025, Defendants filed separate motions to dismiss pursuant

to Federal Rule of Civil Procedure 12(c). See Dkt. Nos. 55, 56. Plaintiff opposed each motion

and Defendants replied. See Dkt. Nos. 57, 59, 60, 61. With the permission of the Court, Plaintiff

filed a sur-reply. See Dkt. Nos. 62, 63, 64.1

For the following reasons, Defendants' motions to dismiss are granted.

II. BACKGROUND

In early September 2023, Plaintiff's vehicle was hit by gunfire while she was leaving 212

Market in Albany, New York. See Dkt. No. 1 at ¶ 7. Plaintiff immediately reported the incident

to APD because she believed the gunfire could be related to "someone being shot and killed

blocks away from where her vehicle was shot." Id. at ¶ 8. Shortly thereafter, APD took custody

of Plaintiff's vehicle with her permission. Id. at ¶ 9. Plaintiff alleges that after she consented to

the seizure, APD served her with a search warrant permitting officers to "search her Vehicle and

seize any evidence found as outlined in the search warrant." Id. Plaintiff notes that she is "neither

a suspect nor a party to any criminal proceeding regarding the homicide." Id. at ¶ 12.

1 On September 2, 2025, Plaintiff filed a motion to expedite the Court's decision. See Dkt. No.

65.

Plaintiff maintains that APD is still in possession of her vehicle and has continuously

possessed it since September 3, 2023. See id. at ¶ 13. Plaintiff further alleges that APD's

continued possession of her vehicle is "causing significant financial hardship and emotional

distress to [her] and her family." Id. Prior to commencing this action, Plaintiff filed a lawsuit

against only APD in New York State Supreme Court, Albany County, pursuant to Article 71 of

the Civil Practice Law and Rules. See N.Y. C.P.L.R. 7101. She sought a writ of

replevin compelling APD to return her vehicle. See Dkt. No. 1 at 11-15. Albany County

Supreme Court declined to issue the writ. See id. at 89-92. Plaintiff then commenced this action

pursuant to 42 U.S.C § 1983, alleging that Defendants violated her Fourteenth Amendment right

to procedural due process by continuing to retain possession of her vehicle. See id. at 4-

5. Plaintiff also seeks a declaratory judgment pursuant to 28 U.S.C §§ 2201 and 2202 stating that

Defendants' actions violated her Plaintiff’s Fourteenth Amendment due process rights. Id. at 5.

III. DISCUSSION

A. Standard of Review

Rule 12(c) of the Federal Rules of Civil Procedure provides that "after the pleadings are

closed—but early enough not to delay trial—a party may move for judgment on the

pleadings." FED. R. CIV. P. 12(c). When a party makes a Rule 12(c) motion, the court applies the

same standard as when a party files a Rule 12(b)(6) motion. See Hayden v. Paterson, 594 F.3d

150, 160 (2d Cir. 2010) (citation omitted).

A motion to dismiss for failure to state a claim pursuant to Rule 12(b)(6) of the Federal

Rules of Civil Procedure tests the legal sufficiency of the party's claim for relief. See Patane v.

Clark, 508 F.3d 106, 111-12 (2d Cir. 2007) (citation omitted). In considering the legal

sufficiency of a complaint, a court must accept as true all well-pleaded facts in the pleading and

draw all reasonable inferences in the pleader's favor. See ATSI Commc'ns, Inc. v. Shaar Fund,

Ltd., 493 F.3d 87, 98 (2d Cir. 2007) (citation omitted). This presumption of truth, however, does

not extend to legal conclusions. See Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citation

omitted). Although a court's review of a motion to dismiss is generally limited to the facts

presented in the pleading, the court may consider documents that are "integral" to that pleading,

even if they are neither physically attached to, nor incorporated by reference into, the

pleading. See Mangiafico v. Blumenthal, 471 F.3d 391, 398 (2d Cir. 2006) (quoting Chambers v.

Time Warner, Inc., 282 F.3d 147, 152-53 (2d Cir. 2002)).

To survive a motion to dismiss, a party need only plead "a short and plain statement of the

claim," see Fed. R. Civ. P. 8(a)(2), with sufficient factual "heft to 'sho[w] that the pleader is

entitled to relief[,]'" Bell Atl. Corp. v. Twombly, 550 U.S. 544, 557 (2007) (quotation

omitted). Under this standard, the pleading's "[f]actual allegations must be enough to raise a right

of relief above the speculative level," see id. at 555 (citation omitted), and present claims that

are "plausible on [their] face," id. at 570. "The plausibility standard is not akin to a 'probability

requirement,' but it asks for more than a sheer possibility that a defendant has acted

unlawfully." Iqbal, 556 U.S. at 678 (citation omitted). "Where a complaint pleads facts that are

'merely consistent with' a defendant's liability, it 'stops short of the line between possibility and

plausibility of "entitlement to relief."' Id. (quoting Twombly, 550 U.S. at 557). Ultimately,

"when the allegations in a complaint, however true, could not raise a claim of entitlement to

relief," Twombly, 550 U.S. at 558, or where a plaintiff has "not nudged [its] claims across the line

from conceivable to plausible, the[ ] complaint must be dismissed[,]" id. at 570.

Additionally, courts must afford pro se plaintiffs "special solicitude." See Ruotolo v.

I.R.S., 28 F.3d 6, 8 (2d Cir. 1994) (citing Graham v. Lewinski, 848 F.2d 342, 344 (2d Cir.

1988)). "A document filed pro se is 'to be liberally construed,' . . . and 'a pro se complaint,

however inartfully pleaded, must be held to less stringent standards than formal pleadings drafted

by lawyers.'" Erickson v. Pardus, 551 U.S. 89, 94 (2007) (quoting Estelle v. Gamble, 429 U.S.

97, 106 (1976)). "This policy of liberally construing pro se submissions is driven by the

understanding that implicit 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." Triestman v. Fed. Bureau of Prisons, 470

F.3d 471, 475 (2d Cir. 2006) (internal quotations and modifications omitted). Therefore, courts

read pro se filings "to raise the strongest arguments that they suggest." Id. at 474 (citations and

internal quotations omitted).

B. Section 1983 Procedural Due Process Claim

1. Failure to Name a Proper Defendant

Both Defendants move to dismiss Plaintiff's complaint on the ground that she failed

to name a proper defendant. APD argues that the City of Albany is not a named defendant, and

APD is not a separate legal entity capable of being sued. See Dkt. No. 55-2 at 4. Similarly, the

District Attorney argues that "an individual municipal department, such as the district attorney's

office, is not considered 'a separate legal entity that is subject to suit . . . .'" Dkt. No. 56-1 at 9.

Plaintiff responds, asserting that the District Attorney's Office and APD are proper

Defendants because her "complaint named the 'Albany County District Attorney,' construed as

targeting the office's actions through its officials." Dkt. No. 57 at 7. She states that "[e]vidence

shows the District Attorney's involvement." Id. As to APD, Plaintiff contends the argument that

APD is not a proper Defendant "overlooks the context of Plaintiff's claim, which implicates the

APD's policies and practices under Monell v. Department of Social Services, 436 U.S. 658

(1978)." Dkt. No. 59 at 11.

A municipality may be held civilly liable under § 1983 for constitutional violations it

causes. See Monell v. Dep't of Soc. Servs., 436 U.S. 658, 690 (1978). However, it is well settled

that "'[a] police department is an administrative arm of [a] municipal corporation,' and 'cannot sue

or be sued because it does not exist separate and apart from the municipality and does not have its

own legal identity.'" Ali v. Oneida Cnty. Dist. Att'y, No. 23-CV-1115, 2023 WL 7124513, *6

(N.D.N.Y. Oct. 30, 2023) (quoting Baker v. Willett, 42 F. Supp. 2d 192, 198 (N.D.N.Y.

1999)). Similarly, as to a District Attorney's Office, courts in this circuit have concluded it is "not

a separate legal entity capable of being sued pursuant to § 1983." Griffith v. Sadri, No. 07-CV-

4824, 2009 WL 2524961, *8 (E.D.N.Y. Aug. 14, 2009); see also Ali, 2023 WL 7124513, at *4

("[T]he Oneida County District Attorney's office . . . is not a separate legal entity that is subject to

suit, and dismissal is warranted on that basis alone").

Thus, because Plaintiff cannot bring a § 1983 claim against APD or the District Attorney,

her claims against those entities must be dismissed. However, "[g]iven Plaintiff's pro se status

and the Court's responsibility to liberally construe h[er] complaint, the Court considers next

whether [s]he has plausibly alleged a Section 1983 claim when construed against" the City of

Albany, Albany County, or the District Attorney in his official and unofficial capacity. See

Arroyo v. Nassau Correctional Facility, No. 22-CV-5611, 2022 WL 16636774, *2 (E.D.N.Y

Nov. 2, 2022).

2. Claims Against Albany Police Department

APD also moved for judgment on the pleadings based on its allegation that "state law . . .

provided an adequate post-deprivation remedy" such that "[a] claim for deprivation of property is

not recognized in federal court." Dkt. No. 55-2 at 2-3. Specifically, APD contends that the

Article 71 replevin action that Plaintiff brought in New York State court provided her with a

meaningful post-deprivation remedy. See id. at 3. Plaintiff argues the Article 71 proceeding was

inadequate because her "attempts to retrieve her vehicle were frustrated by [] APD's failure to

provide the key or facilitate access. . . . The financial and emotional burdens of initiating a state

court proceeding, combined with [] APD's misrepresentations and inactions for over a year and

three months, rendered this remedy illusory." Dkt. No. 59 at 10. Plaintiff also contends that the

conclusion in the replevin action does not foreclose her ability o see monetary damages under §

1983. See id.

"The Supreme Court has clearly distinguished between a claim that an established state

procedure does not afford procedural due process and a claim that a property right was lost

because of a random and unauthorized act by a state actor." Marino v. Ameruso, 837 F.2d 45, 47

(2d Cir. 1988). Where the former is true, "the existence of independent state relief does not defeat

a § 1983 [procedural due process] claim." Butler v. Castro, 896 F.2d 698, 700 (2d Cir. 1990).

However, in the latter scenario, "a plaintiff cannot state a valid § 1983 claim unless [s]he alleges

that state law post-deprivation remedies are unavailable or inadequate." Vaher v. Town of

Orangetown, N.Y., 916 F. Supp. 2d 404, 437 (S.D.N.Y. 2013). Thus, the Court must first

determine whether Defendants' alleged actions were was pursuant to "an established procedure,

such that the availability of a post-deprivation remedy would not automatically satisfy due

process," Rivera-Powell v. New York City Bd. of Elections, 470 F.3d 458, 466 (2d Cir. 2006), or

whether the acts were "random and unauthorized" such that an adequate state post-deprivation

remedy "satisfies procedural due process requirements," Id.

Courts in the Second Circuit have concluded that claims similar to Plaintiff's, herein,

constitute "random and unauthorized" acts. See, e.g., Malapanis v. Regan, 335 F. Supp. 2d 285,

292 n.5 (D. Conn. 2004) ("When property is seized pursuant to a search warrant, adequate post-

deprivation remedies satisfy procedural due process"); Best v. Monaco, No. 09-CV-05260, 2010

WL 1438756, *1 (E.D.N.Y. Apr. 5, 2010) ("In the context of property seized pursuant to a search

warrant, adequate postdeprivation remedies satisfy procedural due process"); Grant v. Am.

Soc'y for the Prevention of Cruelty to Animals, No. 16-CV-2765, 2017 WL 1229737, *4

(S.D.N.Y. Mar. 31, 2017) ("[B]ecause [the p]laintiff's property was seized pursuant to a warrant

issued upon probable cause, as long as there was an adequate post-deprivation remedy available,

[the p]laintiff's due process claim will fail").

The Court finds the reasoning in Malapanis particularly persuasive. There, the plaintiffs

asserted "the failure [of the police] to return [the] plaintiffs' property subsequent to its seizure . . .

violate[d] their Fourteenth Amendment due process rights." Malapanis, 335 F. Supp. 2d at

289. The court "construe[d] the allegations that the defendants failed to return [the plaintiff's]

property even though criminal proceedings had not yet been instituted . . . and the allegation that

the State Police defendants refused to repair the damage caused [to the plaintiffs' property] . . . to

assert claims of denial of procedural due process." Id. at 291-92. The defendants moved to

dismiss, arguing that the "plaintiffs' procedural due process claim fails . . . because [the] plaintiffs

[had] access to meaningful post-deprivation state law remedies." Id. at 292. Applying the above

appropriate procedural due process analysis, the court held as follows:

[The p]laintiffs have made no allegation that there is an established

state policy to retain seized property after the completion of a

criminal investigation . . . nor that the damage to their property was

the result of an established procedure. At best, plaintiffs have

alleged that their deprivation was the result of a random and

unauthorized act by the State Police. Thus, the existence of an

adequate post-deprivation state judicial remedy would satisfy

procedural due process.

Id.

Plaintiff does not allege, argue, or present exhibits concerning an "established state

procedure." Rather, "[a]t best," Plaintiff has alleged "a random and unauthorized act" by the

officers investigating the homicide, unconnected from an established procedure of APD for the

retention and return of vehicles seized pursuant to a search warrant. Id. The "Due Process

Clause is not violated when a state employee negligently or intentionally deprives an individual of

property, if 'the state makes available a meaningful postdeprivation remedy.'" Best, 2010 WL

1438756, at *1 (quoting Hudson v. Palmer, 468 U.S. 517, 533 (1984)).

Consequently, Plaintiff "cannot state a valid § 1983 claim unless [s]he alleges that state

law post-deprivation remedies are unavailable or inadequate." Vaher, 916 F. Supp 2d at 436-37

(S.D.N.Y. 2013). The complaint does not plausibly allege either. "Courts in this circuit have

repeatedly found that the availability of state law actions for negligence, replevin, or conversion

are adequate post-deprivation remedies for a deprivation of personal property claim" where the

deprivation is not alleged to be pursuant to an established procedure. See Wilburn v. Galloway,

No. 23-CV-10513, 2024 WL 4432814, *1 (S.D.N.Y. Oct. 4, 2024); see also Herbin v. City of

New York, No. 22-CV-5890, 2023 WL 2368974, *3 (S.D.N.Y. Mar. 6, 2023) ("The availability of

an action in the Court of Claims and state law actions for negligence, replevin, or conversion have

been found to be adequate post-deprivation remedies for a deprivation of personal property

claim").

Indeed, "[i]f no criminal prosecution is pending[, as plaintiff alleges here], a property

owner may either file an action for replevin or a CPLR '[A]rticle 78 proceeding to review a

refusal after demand.'" Best, 2010 WL 1438756, at *2 (quoting Boyle v. Kelley, 42 N.Y.2d 88, 91

(1977)); see also Dkt. No. 1 at ¶ 12. Specifically, "[a] CPLR [A]rticle 78 proceeding will

properly lie to require the return of property, other than contraband, seized pursuant to a search

warrant and held for an unreasonable length of time without the commencement of a criminal

action." Moss v. Spitzer, 19 A.D.3d 599, 600 (2d Dept. 2005). The Second Circuit has held that

"the availability of an Article 78 proceeding under New York law provide[s] [plaintiffs] with an

adequate post-deprivation remedy such that no procedural due process violation" occurs under

circumstances such as these. McMenemy v. City of Rochester, 241 F.3d 279, 289 (2d Cir. 2001).

APD correctly points out that Plaintiff's CPLR Article 71 action for replevin provided an

adequate state law remedy for the recovery of her vehicle. See Dkt. No. 55-2 at 2-3. Aside from

the replevin action being an available and "adequate post deprivation remed[y]," Herbin, 2023

WL 2368974, at *3, Plaintiff actually availed herself of this remedy in an attempt to obtain her

property. See Dkt. No. 1 at ¶ 14. "[T]he fact that an Article [71] proceeding may result in a

judicial determination that [a p]laintiff is not entitled to the return of her property is not relevant

to the question of whether the proceeding is an adequate post-deprivation remedy." Grant, 2017

WL 1229737, at *5 (S.D.N.Y. Mar. 31, 2017)). Plaintiff's complaint attacks neither the adequacy

of the Article 71 proceeding nor the availability and adequacy of other remedies that she could

have pursued such as an Article 78 proceeding. See Dkt. No. 1. Plaintiff's responses also fail to

address the availability of an Article 78 proceeding. See Dkt. Nos. 57, 59.

Plaintiff's opposition to APD's motion discusses, for the first time, the adequacy of state

law remedies. She states, "Plaintiff was not afforded a meaningful opportunity to recover her

vehicle, and the APD's conduct rendered state remedies inadequate." Dkt. No. 59 at 7. However,

"[a] party may not use his or her opposition to a dispositive motion as a means to amend the

complaint." R.S. v. Bd. of Educ. Shenendehowa Cent. Sch. Dist., 1:17-CV-0501, 2017 WL

6389710, *6 (N.D.N.Y. Dec. 13, 2017) (quoting Shah v. Helen Hayes Hosp., 252 Fed. Appx. 364,

366 (2d Cir. 2007)). Because Plaintiff made no attempt to challenge the adequacy of the state

court proceeding in her initial complaint, "the Court [generally] will not address any of the new

claims alleged in the Opposition." R.S., 2017 WL 6387170, at *6.

However, courts have noted that the requirement of courts to read the papers of pro se

litigants liberally permits a court to also consider additional materials such as the opposition. See

e.g., id. at *3. Even if the Court were to recognize the new claim that state law did not provide

Plaintiff with an adequate remedy, Plaintiff does not allege any "facts showing that such state law

remedies are inadequate." Newman v. Katz, No. 24-CV-6681, 2025 WL 2171803, *5 (S.D.N.Y.

July 29, 2025). Rather, she restates the actions taken by APD and concludes that since APD did

not return her vehicle, that must mean the state law remedy was inadequate. Such a factual

allegation does not raise a plausible inference that anything about the state law proceeding was

inadequate.

As Plaintiff has failed to allege or argue the inadequacy of the available post-deprivation

remedies, she has failed to state a cognizable procedural due process claim. See Malapanis, 335

F. Supp. 2d at 292-93. Therefore, even if Plaintiff intended to sue the City of Albany,

the City would be entitled to judgment on the pleadings.

3. Claims Against Defendant Albany County and its Officials

Plaintiff's complaint does not indicate whether she seeks to impose liability on Albany

County, the Albany County District Attorney in his official capacity, or any individual prosecutor

within that office in their individual capacity. See generally Dkt. No. 1. In light of Plaintiff's pro

se status, a liberal reading of the complaint could implicate each of these actors. In anticipation of

such a liberal reading, the District Attorney's Office has made arguments in favor of dismissal

for each scenario. See Dkt. No. 56. "The Second Circuit has cautioned that where a complaint

does not specify whether claims are asserted against government officials in their individual

capacities, it is preferable to construe the complaint as stating both official and individual capacity

claims." Eisenberg v. Dist. Att'y of Cnty. of Kings, 847 F. Supp. 1029, 1035 (E.D.N.Y. 1994)

(citing Frank v. Relin, 1 F.3d 1317, 1326 (2d Cir. 1993)). Therefore, the Court will address

each issue, in turn.

a. Individual Capacity

The District Attorney argues that to the extent Plaintiff intended to sue a prosecutor in the

office in their individual capacity, the prosecutor would be entitled to absolute immunity.

See Dkt. No. 56-1 at 10-11. While Plaintiff disputes the applicability of that doctrine in

her opposition, see Dkt. No. 57 at 6-7, the Court need not reach that issue. Plaintiff has failed to

name any individual prosecutors; therefore, she cannot plausibly state a claim against them. See

Curtis v. City of New York, No. 22-CV-7201, 2022 WL 14054222, *4 (S.D.N.Y. Oct. 24, 2022)

(dismissing claims where the "[p]laintiff does not specifically name any individuals as defendants.

He also does not allege which individual DOCCS officials at Sing Sing were responsible for

failing to provide him with medical care").

"To state a claim under Section 1983 against an individual defendant in his or her

individual capacity, a plaintiff must allege facts showing that individual defendant's direct and

personal involvement in the alleged constitutional deprivation." Id. at *4 (citing Spavone v. N.Y.

State Dep't of Corr. Serv., 719 F.3d 127, 135 (2d Cir. 2013)). As the Second Circuit has made

clear, "[t]o hold a state official liable under § 1983, a plaintiff must plead and prove the elements

of the underlying constitutional violation directly against the official." Tangreti v. Bachmann, 983

F.3d 609, 620 (2d Cir. 2020).

The complaint lacks any facts sufficient to plausibly allege the involvement of any

specific individual at the District Attorney's Office. The complaint broadly asserts that "[t]he

County District Attorney is a public official vested with significant powers and responsibilities,

particularly in matters pertaining to law enforcement and the administration of justice." Dkt. No.

1 at ¶ 27. The complaint then states, "The County District Attorney, by directing the Albany

Police Department to retain possession of the Plaintiff's vehicle, has actively contributed to the

harm suffered by the Plaintiff and her family." Dkt. No. 1 at ¶ 28.

The Court has also reviewed the materials "attached to the complaint as an exhibit," Katz

v. Travelers, 241 F. Supp. 3d 397, 405 (E.D.N.Y. 2017), and finds that no specific individual

from the District Attorney's Office is implicated in them. See Dkt No. 1 at 8-127. The emails

submitted by Plaintiff in support of the complaint between Plaintiff and the City of Albany

Deputy Corporation Counsel largely concern issues regarding APD. See Dkt. No. 1 at 93-

127. The only time the District Attorney is mentioned is where Corporate Counsel writes, "I

spoke to the Detective assigned to the case on our end and the DA's office. At this point they

would be able to return the car, but they need the information from the car's computer." Dkt. No.

1 at 95.

There is no factual basis alleged in the complaint for the Court to infer that the District

Attorney himself must have directed retention of the vehicle based on the responsibilities

entrusted to that office—the complaint does little more than raise "a sheer possibility" of any one

prosecutor's involvement. Iqbal, 556 U.S. at 678 (citation omitted). Given the minimal

information pleaded against the District Attorney, the complaint does not plausibly

allege any "individual [prosecutor] defendant's direct and personal involvement in the alleged

constitutional deprivation." Curtis, 2022 WL 14054222, at *4 (citing Spavone, 719 F.3d at

135). Therefore, to the extent the complaint could be construed against a specific prosecutor at

the District Attorney's Office in their individual capacity, such a claim is dismissed.

b. Official Capacity

To the extent that Plaintiff may seek to sue the Albany County District Attorney

in his official capacity for "prosecutorial decisions over the course" of the homicide investigation,

that claim is barred by the Eleventh Amendment. See D'Alessandro v. City of New York,

713 Fed. Appx. 1, 8 (2d Cir. 2017).2 The Eleventh Amendment generally prohibits lawsuits from

being brought against a state in federal court, but it does not "bar suits against municipalities and

local governments." Id. "When a defendant is sued in his official capacity, [courts] treat the suit

as one against the 'entity of which an officer is an agent.'" Id. (quoting Kentucky v. Graham, 473

U.S. 159, 165-66 (1985)). In suits brought against a District Attorney in their official capacity,

the Second Circuit has distinguished between acts taken in an attorney's prosecutorial role and

acts concerning the "administration of the district attorney's office." Id. (quoting Ying Jing Gan v.

City of New York, 996 F.2d 522, 536 (2d Cir. 1993)). Where a district attorney "acts as a

prosecutor, [they are] an agent of the State, and therefore immune" from damages liability under

the Eleventh Amendment. See id. "But if a suit centers . . . on the 'office policy' that the district

attorney sets . . . then the district attorney is 'considered a municipal policymaker,'" and the

Eleventh Amendment is inapplicable. Id. (quoting Ying Jing Gan, 996 F.2d at 536).

2 The District Attorney first raised an Eleventh Amendment issue in its reply brief. See Dkt No.

60 at 6-7. While arguments raised for the first time in reply briefs are generally deemed waived,

United States v. George, 779 F.3d 113, 119 (2d Cir. 2015), the Court addresses this issue sua

sponte because Eleventh Amendment issues affect this Court's subject matter jurisdiction. See

Atl. Healthcare Benefits Tr. v. Googins, 2 F.3d 1, 4 (2d. Cir. 1993).

"'[A] prosecutor enjoys absolute immunity even when doing an administrative act if the

act is done in the performance of an advocacy function.'" Id. at 7 (citation omitted). "And even

seemingly administrative duties that 'necessarily require legal knowledge and the exercise of

related discretion' are shielded by absolute immunity." Id. (citation omitted).

Plaintiff's allegations relate to the District Attorney's Office's conduct in "directing the

Albany Police Department to retain possession of the Plaintiffs vehicle" in connection with a

homicide investigation. Dkt. No. 1 at ¶ 28. In her response to the District Attorney's Office's

motion, Plaintiff argues that the act "was an administrative act, not prosecutorial, as no

prosecution involving the vehicle exists." Dkt. No. 57 at 10.

The Supreme Court has stated "that prosecutors are not entitled to absolute immunity for

their actions in giving legal advice to the police." Buckley v. Fitzsimmons, 509 U.S. 259, 271

(1993). Only "qualified immunity" applies to such claims. Id. at 278; see also Simon v. City of

New York, 727 F.3d 167, 172 (2d Cir. 2013). "Even still, 'not every interview, interrogation, or

other act by a prosecutor with the potential of revealing new information is an investigative act

entitled to only qualified immunity.'" Brown v. Vill. of Endicott, No. 3:21-CV-1186, 2025 WL

863105, *22 (N.D.N.Y. Mar. 19, 2025) (quoting Giraldo v. Kessler, 694 F.3d 161, 166 (2d Cir.

2012)).

The complaint is bereft of facts demonstrating exactly what any prosecutor did or did not

do in relation to Plaintiff's vehicle besides "directing" APD to retain possession of it. Dkt. No. 1

at ¶ 28. Without more information, it is unclear whether the District Attorney's Office was

engaging in prosecutorial or administrative functions in relation to Plaintiff's vehicle and a

homicide case. It is plausible to the extent that Plaintiff is suing the District Attorney in their

official capacity, Plaintiff is challenging conduct that related to the District Attorney's decisions

on what evidence to use related to the homicide case which would be entitled to absolutely

immunity.

Even if Plaintiff is challenging purely administrative functions of the District Attorney's

Office, qualified immunity is likely to protect the conduct. "'Qualified immunity protects public

officials from liability for civil damages when one of two conditions is satisfied: (a) the

defendant's action did not violate clearly established law, or (b) it was objectively reasonable for

the defendant to believe that his action did not violate such law.'" Garcia v. Does, 779 F.3d 84,

92 (2d Cir. 2015) (citations omitted). The Court is unaware of any clearly established law which

states that a police department and prosecutor's office cannot hold onto physical property of

another for the purpose of determining its evidentiary value in a criminal case. The Court is

likewise unaware of any clearly established law which holds that a delay in returning such

property is unconstitutional. Accordingly, Plaintiff's claims against the Albany County District

Attorney are likely barred under one of two immunity doctrines.3

c. Municipal Liability

As discussed, the Albany County District Attorney's Office is an administrative arm of

Albany County. See supra part III section B(1). To the extent that Plaintiff seeks to sue the

Albany County District Attorney in his official capacity, or the Office, "we treat the suit as one

against the 'entity of which an officer is an agent.'" Gentry v. New York, No. 1:21-CV-0319, 2021

WL 3037709, *6 (N.D.N.Y. June 14, 2021), R. & R. adopted, 2021 WL 3032691 (N.D.N.Y. July

19, 2021) (quoting Kentucky v. Graham, 473 U.S. 159, 165-66, (1985)); see also D'Alessandro,

713 Fed. Appx. at 8-9; Arroyo v. Nassau Correctional Facility, No. 22-CV-5611, 2022 WL

3 The Court reiterates that this is only one of multiple reasons set forth in this decision for why

Plaintiff's complaint must be dismissed.

16636774, *2 (E.D.N.Y Nov. 2, 2022). The District Attorney argues that any municipal liability

claim against Albany County must be dismissed because "Plaintiff does not sufficiently please the

'custom or policy' prong" which is required under Monell and its progeny. Dkt. No. 56-1 at 12-

13. Plaintiff summarily states that she has alleged a Monell claim "by alleging actions by officials

responsible for policies. . . . The District Attorney's Office directed the vehicle's retention without

due process of law, as evidence by DA Lee Kindlon's statement and APD's reliance on its

authority . . . ." Dkt. No. 57 at 8.

The Court agrees with Defendant and, to the extent Plaintiff seeks to hold Albany County

liable, the complaint must be dismissed.

It is well settled that "a municipality cannot be made liable [under § 1983] by application

of the doctrine of respondeat superior." Lucente v. Cnty. of Suffolk, 980 F.3d 284, 297 (2d Cir.

2020) (quotations omitted). Rather, "[i]n order to hold the County liable under § 1983, plaintiff

must put forth sufficient evidence to show that individual defendants' unconstitutional actions

were taken pursuant to an official municipal policy, custom, or practice." Thornton v. Cnty. of

Albany, No. 9:14-CV-679, 2016 WL 5793714, *7 (N.D.N.Y. Oct. 4, 2016) (citing Monell

v. Dep't. of Soc. Servs. of City of New York, 436 U.S. 658, 690-91 (1978)). As a result, to

demonstrate Monell liability, a plaintiff must allege a violation of constitutional rights by

employees of the municipality and "(1) 'the existence of a municipal policy or custom . . . that

caused his injuries beyond merely employing the misbehaving officer[s]'; and (2) 'a causal

connection - an affirmative link - between the policy and the deprivation of his constitutional

rights.'" Harper v. City of New York, 424 Fed. Appx. 36, 38 (2d Cir. 2011) (quoting Vippolis v.

Vill. of Haverstraw, 768 F.2d 40, 44 (2d Cir. 1985)) (internal quotation marks omitted). A

plaintiff may plead a municipal policy or custom by alleging the following:

(1) a formal policy, promulgated or adopted by the entity; or, (2)

that an official with policymaking authority took action or made a

specific decision which caused the alleged violation of

constitutional rights; or (3) the existence of an unlawful practice by

subordinate officials that was so permanent or well settled so as to

constitute a 'custom or usage,' and that the practice was so

widespread as to imply the constructive acquiescence of

policymaking officials.

Shepherd v. Powers, No. 11-CV-6860, 2012 WL 4477241, *9 (S.D.N.Y. Sept. 27, 2012)

(quotation and other citation omitted).

Here, Plaintiff's complaint fails to plausibly allege the existence of a formal policy

promulgated or adopted by Albany County. Plaintiff's complaint states that "the County District

Attorney is a public official vested with significant powers and responsibilities, particularly in

matters pertaining to law enforcement and the administration of justice," and that the District

Attorney directed APD to retain possession of Plaintiff's vehicle. Dkt. No. 1 at 5. This allegation

does not demonstrate that the District Attorney's action "was caused to act by an official policy

enacted by the municipality, i.e., through an ordinance or resolution adopted by the

municipality." Flannery v. Cnty. of Niagara, 763 F. Supp. 3d 364, 393-94 (W.D.N.Y. 2025).

"'Boilerplate statements' that county employees were acting in accord with a municipal

policy, with no facts to support those statements, are not sufficient to support a Monell claim."

Forrest v. Cnty. of Greene, 676 F. Supp. 3d 69, 76 (N.D.N.Y. 2023) (citing Brown v. Oneida

Cnty, No. 6:15-CV-0849, 2016 WL 4275727, *4 (N.D.N.Y. Aug. 12, 2016)); see also Davis v.

City of New York, 228 F. Supp. 2d 327, 337 (S.D.N.Y. 2002) ("'[T]o succeed on this theory,

plaintiff must prove the existence of a practice that is permanent' by 'demonstrat[ing] that the

custom or practice is so well settled and widespread that the policymaking officials of the

municipality can be said to have either actual or constructive knowledge of it yet did nothing to

end the practice'"). "[R]ather [a plaintiff] 'must allege facts tending to support, at least

circumstantially, an inference that such a municipal policy or custom exists.'" Benacquista v.

Spratt, 217 F. Supp. 3d 588, 600 (N.D.N.Y. 2016) (quoting Santos v. New York City, 847 F. Supp.

2d 573, 576 (S.D.N.Y. 2012)). "Pleadings articulating only isolated instances of unconstitutional

behavior do not plausibly allege a well-settled custom." Douglas v. City of Peekskill, No. 21-CV-

10644, 2023 WL 2632217, *9 (S.D.N.Y. Mar. 24, 2023); see also Wilson v. Cnty. of Ulster, No.

1:20-CV-00104, 2022 WL 813958, *16 (N.D.N.Y. Mar. 17, 2022).

Plaintiff argues in her response to the District Attorney's Office and her sur-reply that she

sufficiently alleged a policy or custom under Monell. See Dkt. No. 57 at 8; Dkt. No. 64 at 6, 30.

Plaintiff points to a single instance of an alleged constitutional violation that the District

Attorney's Office was allegedly involved in. See Dkt. No. 1 at 5. Plaintiff's complaint makes

the very broad assertion that the District Attorney is vested with power "pertaining to law

enforcement and the administration of justice," and that by directing the retention of her vehicle,

the District Attorney "has actively contributed to the harm suffered by Plaintiff." Id. at ¶¶ 27-

28. Plaintiff attached dozens of emails to her complaint that are between her and the City of

Albany's Department of Law. See id. at 94-102, 104-26. She also provided copies of state court

filings and decisions. See id. at 11-92, 103. A few emails reference the District Attorney's

Office. For example, Corporate Counsel for the Department of Law told Plaintiff on February 14,

2024, at 10:29 A.M., "I spoke to the Detective assigned to the case on our end and the DA's

office. At this point, they would be able to return the car, but they need the information from the

car's computer. Would you consent to them downloading them?" Id. at 99. Plaintiff denied

consent. See id. at 98.

Another email indicates that the attorney was "waiting to hear back from the detective

about who at the DA's office to contact about this." Id. at 96. In an email dated February 15,

2024, the attorney explained to the state court that he had "spoken with the DA's office, additional

personnel at Albany Police Department, and [Plaintiff,] and unfortunately the City is not in a

position to relinquish the car at this point." Id. at 100.

Plaintiff argues in her response that the "claim that Plaintiff fails to allege personal

involvement ignores pro se pleading standards. Plaintiff alleges the District Attorney's Office,

through officials, directed APD to retain Plaintiff's vehicle without due process. DA Lee

Kindlon's statement corroborates this." Dkt. No. 57 at 8. In her sur-reply, Plaintiff clarifies that

Lee Kindlon was not working at the District Attorney's Office at some of the times relevant to her

complaint, but emphasizes that her "claims are against the District Attorney's Office." Dkt. No.

64 at 4. Plaintiff repeatedly references an audio recording of a conversation with Lee Kindlon.

See id.; see also Dkt. No. 57 at 8 (citing Dkt. No. 43). Plaintiff states "the recorded conversation

(Lee Kindlon 9:13:2023.m4a) confirms the District Attorney’s Office's directive to retain

Plaintiff's vehicle, as Kindlon spoke with an official who stated, 'we’re keeping that car' as

evidence (id., 00:00:57)." Dkt. No. 64 at 6. The Court has not been provided with a copy of this

audio recording. Even if it had, and the recording contains precisely what Plaintiff purports, the

information still fails to allege a policy or custom of the District Attorney's Office.

Thus, Plaintiff has failed to allege a custom for purposes of Monell liability against

Albany County based on a single incident. In turn, Plaintiff has not plausibly alleged any facts

that would render Albany County liable for the alleged deprivation.4

4 Insofar as Plaintiff references "vehicle detention decisions [being] made at the policy level

within the District Attorney's Office," Dkt. No. 64 at 30, "a single incident alleged in a complaint,

especially if it involved only actors below the policy-making level, does not suffice to show a

C. Declaratory Judgment

Plaintiff also requests a "declaratory judgment to settle the controversy" pursuant to 28

U.S.C. §§ 2201 and 2202. Dkt. No. 1 at 5-6. The Declaratory Judgment Act gives a district court

the discretion to "declare the legal rights and other legal relations of any interested party seeking

such declaration." 28 U.S.C. § 2201(a). "It is well settled that a request for declaratory . . . relief

is not an independent cause of action." Bulson v. Town of Brunswick, No. 24-CV-503, 2025 WL

743950, *3 n.2 (N.D.N.Y. Mar. 7, 2025) (quoting Daytree at Cortland Square, Inc. v. Walsh, 332

F. Supp. 3d 610, 627 (E.D.N.Y. 2018)); see also Chevron Corp v. Naranjo, 667 F.3d 232, 244 (2d

Cir. 2012) (explaining that the Act "is procedural only . . . and does not create an independent

cause of action") (citations and quotation marks omitted).

As such, a request for declaratory relief "does not exist independent of a plausible

underlying claim for relief." Travis v. Navient Corp., 460 F. Supp. 3d 269, 286 (E.D.N.Y. 2020)

(quoting Lisa Coppola, LLC v. Higbee, No. 1:19-CV-678, 2020 WL 1154749, *10 (W.D.N.Y.

Mar. 10, 2020). As already determined, Plaintiff has failed to adequately plead a violation of her

procedural due process rights. Therefore, she is not entitled to declaratory relief.

D. Opportunity to Amend

When a pro se complaint fails to state a cause of action, the court generally "should not

dismiss without granting leave to amend at least once when a liberal reading of the complaint

gives any indication that a valid claim might be stated." Cuoco v. Moritsugu, 222 F.3d 99, 112

(2d Cir. 2000) (citations and quotation marks omitted). An opportunity to amend is

not required where "[t]he problem with [the plaintiff’s] cause of action is substantive" such

municipal policy." DeCarlo v. Fry, 141 F.3d 56, 61 (2d Cir. 1998) (quoting Ricciuti v. New York

City Transit Auth., 941 F.2d 119, 123 (2d Cir. 1991)).

that "better pleading will not cure it." Id. (citation omitted). Furthermore, "[w]here granting

leave to amend is unlikely to be productive . . . it is not an abuse of discretion to deny leave to

amend." Ruffolo v. Oppenheimer & Co., 987 F.2d 129, 131 (2d Cir. 1993) (collecting cases).

APD does not address this issue in its motion. See Dkt. No. 55. The District Attorney's

Office does not address leave to amend but asks that the Court dismiss Plaintiff's complaint with

prejudice. See Dkt. No. 56-1 at 15. Plaintiff does not request leave to amend in her responses.

See Dkt. No. 57, 59.

Plaintiff has not previously amended her complaint or sought leave to amend such that

eave to amend is appropriate at this juncture. However, the currently named Defendants are the

Albany Police Department and Albany County District Attorney, both of which are not subject to

suit under the current complaint for the reasons set forth in this decision. As such, upon being

granted leave to amend, Plaintiff must name a proper defendant. "[A]n amendment is afforded

'unless the court can rule out any possibility, . . . that an amended complaint would succeed

in stating a claim[,]'" which the Court cannot do at this time. See Macintyre v. Moore, 267 F.

Supp. 3d 480, 485 (W.D.N.Y. 2017) (quoting Gomez v. USAA Fed. Sav. Bank, 171 F.3d 794, 796

(2d Cir. 1999)) (emphasis added). Therefore, Plaintiff is permitted leave to amend56

IV. CONCLUSION

After carefully reviewing the entire record in this matter, the parties' submissions and the

applicable law, and for the reasons set forth herein, the Court hereby

6 The parties argue in their filings about the appropriateness of considering a settlement offer in

deciding the motions to dismiss. See Dkt. No. 59 at 12; Dkt. No. 61-2 at 1-2; Dkt. No. 64 at 12-

1 3. The Court declines to consider any settlement discussions between the party as reason to

grant or deny the pending motions.

ORDERS that Defendant Albany Police Department's motion to dismiss (Dkt. No.

55) is GRANTED; and the Court further

ORDERS that Defendant Albany County District Attorney's motion to dismiss (Dkt. No.

56) is GRANTED; and the Court further

ORDERS that Plaintiff's complaint (Dkt. No. 1) is DISMISSED without prejudice and

with leave to amend; and the Court further

ORDERS that Plaintiff is directed to file her amended complaint within thirty (30) days

of the filing of this Memorandum-Decision and Order; and the Court further

ORDERS that if Plaintiff fails to file an amended complaint within thirty (30) days of the

date of this Order, the Clerk of the Court shall enter judgement against Plaintiff and close this

case without further order from this Court; and the Court further

ORDERS that Plaintiff's motion to expedite (Dkt. No. 65) is DENIED as moot; and the

Court further

ORDERS that the Clerk of the Court shall serve a copy of this Memorandum-Decision

and Order on the parties in accordance with the Local Rules.

IT IS SO ORDERED.

Dated: March 9, 202 Ve lg te,

Atbeny. New ork ZL Gee es

U.S. District Judge

23