Abreu

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF NEW YORK

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:

BRYAN ABREU, :

:

Plaintiff, :

: 23-CV-03814 (JAV)

-v- :

: OPINION AND ORDER

THE CITY OF NEW YORK ET AL., :

:

Defendants. :

:

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JEANNETTE A. VARGAS, United States District Judge:

Plaintiff Bryan Abreu brings this suit under 42 U.S.C. § 1983, alleging that

two “John Doe” New York City Police Department (“NYPD”) officers (collectively,

the “John Doe Officers”) violated his constitutional rights by stopping a public bus

to demand his identification onboard. Before this Court is a motion to dismiss the

claims brought against the City of New York, the NYPD, and New York Police

Commissioner Dermot Shea (collectively, “the City Defendants”). For the reasons

set forth below, the City Defendants’ motion to dismiss is GRANTED.

BACKGROUND

A. Allegations

The following facts are accepted as true and construed in the light most

favorable to the Plaintiff for the purposes of this motion. Xeriant, Inc. v. Auctus

Fund LLC, 141 F.4th 405, 411 (2d Cir. 2025) (citation omitted).

On May 7, 2020, around 6 PM, Plaintiff caught the M11 bus at 102nd Street

in Manhattan after dropping his daughter off with her mother. ECF No. 39-1

(“Amended Complaint” or “Am. Compl.”)., ¶¶ 12-14. As the bus pulled away from

the curb, a black minivan sped in front of the bus and cut it off. Id., ¶ 16. Two men

leapt out of the minivan and banged on the front window of the bus demanding to

be allowed to board. Id., ¶ 17. The men “did not identify themselves as police

officers” and “were not wearing police uniforms or badges.” Id. ¶¶ 17, 20. When the

bus driver opened the doors, the men boarded the bus and “charged toward Plaintiff

in an unduly hostile and aggressive manner.” Id., ¶¶ 18-19. Approaching Plaintiff,

John Doe 1 said to Plaintiff, “Do us both a favor and give me your [expletive] I.D.

right now.” Id., ¶ 21. When Plaintiff asked John Doe 1 to identify himself, John

Doe 1 shouted at him to “give me your [expletive] I.D.” Id., ¶ 23. Plaintiff declined,

at which point John Doe 1 told Plaintiff to “slip your [expletive] facemask off.” Id.,

¶¶ 24-25. When Plaintiff complied, the men left the bus. Id., ¶ 26.

That same day, Plaintiff filed a complaint with the Civilian Complaint

Review Board (“CCRB”). Id., ¶ 28. Weeks later, Plaintiff was notified that a

portion of his complaint to the CCRB would be referred to the NYPD’s Internal

Affairs Bureau (“IAB”), which has jurisdiction over complaints involving corruption

and allegations of criminal conduct by officers. Id., ¶ 29. The IAB investigation

identified the vehicle that stopped Plaintiff’s bus as belonging to the NYPD’s

Detective Bureau Warrant Squad. Id., ¶¶ 30-32. Plaintiff alleges that he, a 6’5” tall

African American man, was mistaken by the John Doe Officers for a “target of a

criminal investigation” who had “significantly different stature than Plaintiff” and

“was wearing a mask and hoodie at the time that he was seized.” Am. Compl., ¶¶

13, 34.

B. Procedural History

On May 6, 2023, Plaintiff filed this suit against the City Defendants and the

two “John Doe” police officers in both their individual and official capacities. ECF

No. 1 (“Compl.” or “Complaint”). Plaintiff asserted a claim against the unnamed

officers for violations of his Fourth Amendment right to be free from unreasonable

search and seizure pursuant to Section 1983. Id., ¶¶ 25-33. Plaintiff additionally

asserted a Monell claim for municipal liability against the City Defendants. See id.,

¶¶ 34-45.

On July 29, 2024, the City Defendants, through Corporation Counsel, moved

to dismiss the Complaint for failure to state a claim. ECF No. 33 at 1-2. Although

the John Doe Officers have not been named or served, and Corporation Counsel has

not appeared in this case on their behalf, the motion to dismiss nonetheless argued

that the claims asserted against the John Doe Officers in their individual capacities

should likewise be dismissed on qualified immunity grounds. ECF No. 33-1 at 9-10.

On October 23, 2024, Plaintiff filed an opposition to the motion to dismiss,

ECF No. 39 (“Opp’n Br.”), to which he appended a proposed Amended Complaint.

ECF No. 39-1. The Amended Complaint includes additional factual details not

contained in the initial Complaint, and adds an equal protection claim against the

John Doe Officers, alleging that he was the victim of racial profiling. Compare

Compl., ¶¶ 11-45, with Am. Compl., ¶¶ 11-62. Plaintiff contends the motion to

dismiss should be denied or, in the alternative, he should be granted leave to file

the Amended Complaint. Opp’n Br. at 1.1 The City Defendants argue in their reply

papers that leave to amend should be denied on futility grounds. ECF No. 43

(“Reply”).

Although Plaintiff has counsel, he has yet to seek pre-conference discovery

pursuant to Rule 26(d)(1) in order to ascertain the identity of the John Doe Officers.

See, e.g., Colds v. Smyth, No. 22-CV-2023 (CS), 2023 WL 6258544, at *4, *9

(S.D.N.Y. Sept. 26, 2023).

LEGAL STANDARDS

On a motion to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6),

the court accepts as true all well-pleaded allegations and draws all reasonable

inferences in favor of the non-moving party. Romanova v. Amilus Inc, 138 F.4th

104, 108 (2d Cir. 2025). To survive a motion to dismiss, “a complaint must contain

sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible

on its face.’” Kaplan v. Lebanese Canadian Bank, SAL, 999 F.3d 842, 854 (2d Cir.

2021) (quoting Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)). “While a complaint

attacked by a Rule 12(b)(6) motion to dismiss does not need detailed factual

allegations, . . . [the standard] requires more than labels[,] conclusions, and a

formulaic recitation of a cause of action’s elements.” Bell Atl. Corp. v. Twombly, 550

U.S. 544, 545 (2007). “The Court’s charge in ruling on a Rule 12(b)(6) motion ‘is

1 At the time Plaintiff filed his proposed Amended Complaint, the 21-day period to

amend his Complaint as of right pursuant to Rule 15(a)(1)(B) had elapsed.

merely to assess the legal feasibility of the complaint, not to assay the weight of the

evidence which might be offered in support thereof.’” Jennings v. Hunt Companies,

Inc., 367 F. Supp. 3d 66, 69 (S.D.N.Y. 2019) (quoting Eternity Glob. Master Fund

Ltd. v. Morgan Guar. Tr. Co. of N.Y., 375 F.3d 168, 176 (2d Cir. 2004)).

DISCUSSION

As an initial matter, the Court analyzes the facts as set forth in Plaintiff’s

proposed amended pleading. See Pettaway v. Nat’l Recovery Sols., LLC, 955 F.3d

299, 303- (2d Cir. 2020) (“When faced with an amended complaint, [a District Court]

may either deny a pending motion to dismiss as moot or consider the merits of the

motion, analyzing the facts as alleged in the amended pleading” in order to

“promote[] judicial economy by obviating the need for multiple rounds of briefing

addressing complaints that are legally insufficient.” (citations omitted)). Whether

considering the initial Complaint or the Amended Complaint, however, the result

remains unchanged. Plaintiff has failed to allege facts sufficient to establish a

Monell claim against the City Defendants.

Section 1983 “creates a private right of action” for damages against “every

person who acts under color of state law to deprive another of” the “rights,

privileges, or immunities secured by the Constitution and laws of the United

States.” Rehberg v. Paulk, 566 U.S. 356, 361 (2012) (cleaned up). Section 1983

requires that “(1) the conduct complained of must have been committed by a person

acting under color of state law; and (2) the conduct complained of must have

deprived a person of rights, privileges, or immunities secured by the Constitution or

laws of the United States.” Pitchell v. Callan, 13 F.3d 545, 547 (2d Cir. 1994)

(citation omitted).

The Supreme Court has established that “in order to have recourse against a

municipality or other local government under section 1983, plaintiffs must prove

that action pursuant to official municipal policy caused the alleged constitutional

injury.” Floyd v. City of New York, 959 F. Supp. 2d 540, 563 (S.D.N.Y. 2013)

(cleaned up) (citing Monell v. Dep’t of Soc. Servs. of City of New York, 436 U.S. 658,

691 (1978)). Accordingly, in the Second Circuit, a plaintiff bringing a Monell claim

against a municipality must establish: “(1) an official policy or custom that (2)

causes the plaintiff to be subjected to (3) a denial of a constitutional right.” Wray v.

City of New York, 490 F.3d 189, 195 (2d Cir. 2007) (citation omitted). A plaintiff

satisfies the first element by showing one of the following:

(1) the defendant participated directly in the alleged constitutional

violation,

(2) the defendant, after being informed of the violation through a report or

appeal, failed to remedy the wrong,

(3) the defendant created a policy or custom under which unconstitutional

practices occurred, or allowed the continuance of such a policy or

custom,

(4) the defendant was grossly negligent in supervising subordinates who

committed the wrongful acts, or

(5) the defendant exhibited deliberate indifference . . . by failing to act on

information indicating that unconstitutional acts were occurring.

Littlejohn v. City of New York, 795 F.3d 297, 314 (2d Cir. 2015) (citation omitted).

The underlying constitutional violation must be separately proven.

Plaintiff alleges that the John Doe Officers violated his right to be free of

unreasonable searches and seizures and his equal protection rights. But “a

municipality cannot be held liable solely because it employs a tortfeasor—or, in

other words, a municipality cannot be held liable under § 1983 on a respondeat

superior theory.” Monell, 436 U.S. at 691. Monell liability requires both that an

employee acts under color of law when committing the constitutional violation and

a plausible allegation that the plaintiffs’ constitutional rights were deprived as the

result of an “official policy or custom of the City.” Albert v. City of New York, No.

17-CV-3957 (ARR) (SMG), 17-CV-04315 (ARR) (SMG), 2018 WL 5084824, at *4

(E.D.N.Y. Oct. 18, 2018).

Regardless of whether Plaintiff plausibly alleges a Fourth Amendment

violation by the John Doe Officers, he does not plausibly plead an “official policy or

custom” from which the violation stemmed. Wray, 490 F.3d at 195. “Official

municipal policy includes the decisions of a government’s lawmakers, the acts of its

policymaking officials, and practices so persistent and widespread as to practically

have the force of law.” Connick v. Thompson, 563 U.S. 51, 61 (2011) (citations

omitted).

Although line officers’ acts “can be the basis of liability [for a Monell claim] if

they were sufficiently widespread and persistent to support a finding that they

constituted a custom, policy, or usage of which supervisors must have been aware,”

“isolated acts by non-policymaking municipal employees are generally not sufficient

to demonstrate a municipal custom, policy, or usage that would justify liability.”

Hu v. City of New York, 927 F.3d 81, 106 (2d Cir. 2019) (cleaned up).

To sustain his claims against the City Defendants, Abreu must show that

“the alleged practice was so manifest as to imply the constructive acquiescence of

senior policymaking officials.” Id. (cleaned up). His Amended Complaint, however,

does not even identify the purported policy, practice, or custom at issue, the

decision-maker who allegedly adopted any such policy, or any facts from which it

can be inferred that any alleged practice was widespread. Instead, the Amended

Complaint vaguely alleges that the John Doe Officers “were acting pursuant to the

policies, practices and customs developed and implemented by Defendants City of

New York, New York City Police Department and Shea,” Am. Compl., ¶ 58, and

that the “violations of Plaintiff's civil and constitutional rights resulted directly

from the policies, practices, customs, usages and climate created and promulgated

by the Defendants City of New York, New York City Police Department and Shea,”

id., ¶ 60. In other words, it merely uses “boilerplate language echoing the

requirements contained in Monell.” Green v. City of Mount Vernon, 96 F. Supp. 3d

263, 302 (S.D.N.Y. 2015).2 Such a “formulaic recitation of a cause of action’s

elements” does not meet the pleading requirements under Section 1983. Twombly,

550 U.S. at 545.

2 Plaintiff alleges that “Defendant Shea . . . had the obligation to create and

implement policies, practices[,] and customs that would prevent or deter the use of

excessive force by New York City police officers,” but does not allege facts

supporting a claim of excessive force. Am. Compl., ¶ 57.

Plaintiff does allege that the City Defendants failed to properly train its

officers “concerning the rights of citizens thereby causing and enabling the

Defendant Police Officers to engage in the aforementioned conduct.” Am. Compl.,

¶ 55. “[W]hen city policymakers are on actual or constructive notice that a

particular omission in their training program causes city employees to violate

citizens’ constitutional rights, the city may be deemed deliberately indifferent if the

policymakers choose to retain that program.” Connick, 563 U.S. at 61. Here, too,

however, Plaintiff’s pleading consists of nothing more than a boilerplate recitation

of the legal standard. Plaintiff has not “provid[ed] any supporting factual detail

about alleged deficiencies in the training program, or regarding other instances of

police misconduct which could be attributed to a failure to train,” as is necessary to

establish a plausible claim for relief under the Iqbal standard. Triano v. Town of

Harrison, NY, 895 F. Supp. 2d 526, 539 (S.D.N.Y. 2012).

With respect to Plaintiff’s claims against Commissioner Shea, Section 1983

does not permit respondeat superior liability. E.g., Iqbal, 556 U.S. at 676.

Accordingly, “[i]t is well settled in this Circuit that personal involvement of

defendants in alleged constitutional deprivations is a prerequisite to an award of

damages under § 1983.” Wright v. Smith, 21 F.3d 496, 501 (2d Cir. 1994) (cleaned

up); see Wiggins v. Griffin, 86 F.4th 987, 996 (2d Cir. 2023) (“To establish a Section

1983 violation, a plaintiff must plead (and later prove) that each defendant was

personally involved in the alleged constitutional violation.” (citation omitted)). It is

insufficient to show that a defendant simply supervised the state actor who

allegedly committed the constitutional violation. Tangreti v. Bachmann, 983 F.3d

609, 618 (2d Cir. 2020). Instead, to attach “supervisory liability” under Section

1983, “a plaintiff must show the defendant’s personal involvement in the alleged

constitutional violations.” Richardson v. Goord, 347 F.3d 481, 435 (2d Cir. 2003)

(citation omitted). As no such personal involvement in the constitutional violation

by Commissioner Shea has been pled, any claims asserted against him in his

individual capacity are likewise dismissed.

CONCLUSION

Accordingly, the City Defendants’ motion to dismiss is GRANTED. Within

two weeks of the date of this Opinion and Order, Plaintiff shall file a status letter

with the Court regarding his proposed next steps with respect to this litigation,

including how he intends to proceed with respect to the John Doe Officers.

The Clerk of Court is directed to terminate ECF No. 33.

SO ORDERED. ~

Dated: January 9, 2026 Connilte V AAD

New York, New York JEANNETTE A. VARGAS

United States District Judge

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