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FILED: MONROE COUNTY CLERK 07/26/2022 06:54 AM INDEX NO. E2021008184
NYSCEF DOC. NO. 31 RECEIVED NYSCEF: 07/26/2022
MONROE COUNTY CLERK’S OFFICE THIS IS NOT A BILL. THIS IS YOUR RECEIPT.
Receipt # 3146669
Book Page CIVIL
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ELLIOT DOLBY-SHIELDS
192 Lexington Avenue, Suite 802 Instrument: EXHIBIT(S)
New York, NY 10016
Control #: 202207260725
Index #: E2021008184
Date: 07/26/2022
Adler, Sabine Time: 11:51:48 AM
Aweis, Halima
Barron, Annalisa
Bauman, Hannah
Beiter, Shea
The City of Rochester
KOERNER, MICHAEL
LUDWIG, GERALD
Baxter, Todd
Total Fees Paid: $0.00
Employee:
State of New York
MONROE COUNTY CLERK’S OFFICE
WARNING – THIS SHEET CONSTITUTES THE CLERKS
ENDORSEMENT, REQUIRED BY SECTION 317-a(5) &
SECTION 319 OF THE REAL PROPERTY LAW OF THE
STATE OF NEW YORK. DO NOT DETACH OR REMOVE.
JAMIE ROMEO
MONROE COUNTY CLERK
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UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK
INDIIA MARING,
Plaintiff,
Case # 21-CV-6720-FPG
v.
DECISION AND ORDER
THE CITY OF ROCHESTER, et al.,
Defendants.
INTRODUCTION
This is one of many cases pending before the Court that arises out of protests that erupted
in the City of Rochester in September 2020 following the release of news that Daniel Prude, an
unarmed black man, died during an encounter with police in March 2020. Plaintiff Indiia Maring
(they/them)—a protestor who alleges they were injured during the protests—filed this action in
state court against the City of Rochester (“City”), Rochester Police Department (“RPD”) Officer
Tyler Couch, John Doe Police Officers 1-200, the County of Monroe (the “County”), Monroe
County Sheriff Todd Baxter (“Baxter”), and Richard Roe Sheriff’s Deputies 1-200, 1 for multiple
federal and state claims. The County removed the case to federal court on November 23, 2021.
ECF No. 1. In response to a motion to dismiss, Plaintiff filed an Amended Complaint on January
6, 2022. ECF No. 7.
In the Amended Complaint, Plaintiff raises 18 claims: (1) unlawful seizure/false arrest
against City Defendants, pursuant to 42 U.S.C. § 1983; (2) unlawful seizure/false arrest against
RPD Officers, pursuant to New York State law; (3) evidence fabrication/denial of fair trial against
1
Couch and John Doe police officers (“RPD Officers”) and the City are collectively referred to as “City Defendants.”
Richard Roe Sheriff’s deputies (“Sheriff’s Deputies”), the County, and Baxter are collectively referred to as “County
Defendants.” The RPD Officers and Sheriff’s Deputies are collectively referred to as “Individual Defendants.” All
defendants are collectively referred to as “Defendants.”
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Couch related to the December 18, 2020 arrest, pursuant to § 1983; (4) malicious prosecution
against the City and Couch related to the December 18, 2020 arrest, pursuant to New York State
law; (5) malicious prosecution against Couch related to the December 18, 2020 arrest, pursuant to
§ 1983; (6) assault and battery against the City and Individual Defendants, pursuant to New York
State law; (7) excessive force against Individual Defendants, pursuant to § 1983; (8) First
Amendment infringement and retaliation against all Defendants, pursuant to § 1983; (9) failure to
intervene against Individual Defendants, pursuant to § 1983; (10) negligent training, supervision,
and discipline against Baxter, pursuant to New York State law; (11) negligent planning of the
protest response against Baxter, pursuant to New York State law; (12) negligent training,
supervision, and discipline against the City, pursuant to New York State law; (13) negligent
planning of the protest response against the City, pursuant to New York State law; (14) negligence
against the Individual Defendants, pursuant to New York State law; (15) municipal/Monell liability
against the City for alleged violations of the First, Fourth, and Fourteenth Amendments related to
the protests, pursuant to 42 U.S.C. § 1983; (16) municipal/Monell liability against the County and
Baxter for alleged violations of the First, Fourth, and Fourteenth Amendments related to the
protests, pursuant to § 1983; (17) municipal/Monell liability against the City for a policy, practice,
and custom of retaliating against individuals who are lawfully recording police activity in public
places, pursuant to § 1983; and (18) violation of the New York Right to Monitor Act, New York
Civil Rights Law § 79-p, against the City Defendants.
On January 14, 2022, the City Defendants filed a motion to dismiss the First, Second,
Third, Fourth, Fifth, Eighth, Ninth, Twelfth, Thirteenth, and Fourteenth Claims. ECF No. 12.
They do not move against the Sixth, Seventh, Fifteenth, Seventeenth, or Eighteenth Claims, all of
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which Plaintiff asserted against them. On February 28, 2022, the County Defendants filed a motion
to dismiss all of the claims asserted against them. ECF No. 16. The motions are now fully briefed.
FACTUAL BACKGROUND
Plaintiff—who is a resident of the County—participated in large public demonstrations in
September 2020. On September 2, 2020, at around 5:00 p.m., Plaintiff was peacefully protesting
in front of the Public Safety Building when they were shot with pepper balls and sprayed with
pepper spray and/or tear gas. ECF No. 7 ¶¶ 27. The following night, at around 10:30 p.m., Plaintiff
was again shot with shot with pepper balls without any warning or dispersal order being issued
first. Id. ¶¶ 33-34. At some point between then and 11:30 p.m., Plaintiff was “subjected . . . to a
large amount of chemicals from pepper spray and/or tear gas,” causing Plaintiff to suffer “serious
physical and emotional injuries and other damages, including menstrual irregularities.” Id. ¶¶ 35-
37.
On the night of September 4-5, 2020, Individual Defendants escorted Plaintiff and other
peaceful protestors onto the Court Street Bridge. Id. ¶ 39. However, when the protestors reached
the other side of the bridge, law enforcement stopped the protestors with metal barricades, trapping
them on the bridge. Id. At around 10:43 p.m., law enforcement ordered the protestors to disperse.
Id. ¶ 43. But because the protestors were trapped on the bridge, there was nowhere to go. Id.
Within seconds of the dispersal order, law enforcement began firing pepper balls, pepper spray,
and tear gas at the protestors, including at Plaintiff. Id. ¶¶ 44-45. Individual Defendants “forcibly
pushed Plaintiff and other protestors off the bridge” at around 12:30 a.m., and subjected them to a
large amount of tear gas, causing serious physical and emotional damage. Id. ¶¶ 46-48.
Plaintiff again attended peaceful protests on the night of September 5-6, 2020. That night,
police escorted protestors until they approached the intersection of Broad Street and Exchange
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Boulevard, which the police had closed. Id. ¶¶ 51-52. When Plaintiff and the other protestors
approached the intersection, they were met with “an overwhelming presence of RPD officers,
Sheriff’s deputies and State Police in full riot gear with military grade weapons—including a
bearcat tank—and police dogs.” Id. ¶ 53. Plaintiff and the other protestors were stopped at the
intersection. Id. ¶ 54. Individual Defendants attacked Plaintiff and other protestors with tear gas,
other chemical weapons, and flash bang grenades. Id. ¶¶ 56-57.
Over a month later, on October 13, 2020, Plaintiff and several other individuals went to the
Public Safety Building to inquire about their friend, Nicholas Wilt, who had been falsely arrested
and was being detained on a mistaken warrant. Id. ¶ 60. While Plaintiff was attempting to ask for
information, RPD Officers demanded that Plaintiff leave. Id. ¶ 61. Without providing enough
time to comply with the order, RDP Officers pushed Plaintiff, pinning them to the wall, and
causing Plaintiff to fall to the ground and hit their head. Id. ¶ 63. Thereafter, as Plaintiff exited
the Public Safety Building, an RPD Officer hit them in the hand with a baton. Id. ¶ 64.
On December 18, 2020, Plaintiff and a group of about 20 other protestors held a
demonstration at 87 Glasgow Street in the City to object to the unjust eviction of a single mother
and her three children. Id. ¶ 67. When Plaintiff arrived, Couch and approximately 20 RPD
Officers in full riot gear were assembled in front of 87 Glasgow Street. Id. ¶ 72. Plaintiff stood
alone on the sidewalk and filmed the police response. Id. ¶ 73. At all times, Plaintiff was located
on the public sidewalk and never interfered with the officers. Id. ¶¶ 73-74. “Suddenly, without
warning or justification” Couch and other RPD Officers arrested Plaintiff “in retaliation for filming
RPD officers performing their duties in a public place.” Id. ¶¶ 75-79. Despite that Plaintiff was
not committing any crime or violation at the time of their arrest, id. ¶ 79, Couch fabricated official
police paperwork to falsely indicate that Plaintiff had committed violations, id. ¶¶ 82-83. As a
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result, Plaintiff was charged with a violation of Penal Law § 195.05, but the charges were
dismissed at the first court appearance. Id. ¶¶ 84-86.
Plaintiff alleges, inter alia, that Defendants failed to intervene on Plaintiff’s behalf, that
the police response to the protests and protesters was part of an unconstitutional municipal practice,
that Defendants failed to properly train officers in proper protest responses, and that Defendants
acted negligently in planning for and responding to the protests.
LEGAL STANDARD
To survive a motion to dismiss under Rule 12(b)(6), “a complaint must contain sufficient
factual matter . . . ‘to state a claim to relief that is plausible on its face.’” Ashcroft v. Iqbal, 556
U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). A claim for
relief is plausible when the plaintiff pleads facts sufficient to allow the Court to draw reasonable
inferences that the defendant is liable for the alleged misconduct. Id. In reviewing a motion to
dismiss under Federal Rule of Civil Procedure 12(b)(6), the Court must accept as true the factual
allegations in the complaint and draw all reasonable inferences in favor of the plaintiff. See Nechis
v. Oxford Health Plans, Inc., 421 F.3d 96, 100 (2d Cir. 2005). At the same time, the Court is not
required to credit “[l]egal conclusions, deductions, or opinions couched as factual allegations . . .
[with] a presumption of truthfulness.” In re NYSE Specialists Sec. Litig., 503 F.3d 89, 95 (2d Cir.
2007) (internal citations and quotations omitted). The “touchstone for a well-pleaded complaint
under Federal Rules of Civil Procedures 8(a) and 12(b)(6) is plausibility.” In re AOL Time Warner,
Inc. Sec. Litig., 503 F. Supp. 2d 666, 670 (S.D.N.Y. 2007) (citing Twombly, 550 U.S. at 560-61).
To meet this plausibility standard, the factual allegations must permit the Court “to infer more than
the mere possibility of misconduct.” Iqbal, 556 U.S. at 679.
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DISCUSSION
I. First & Second Claims: Unlawful Seizure/False Arrest on December 18, 2020
Plaintiff’s First Claim is for unlawful seizure and false arrest on December 18, 2020,
against City Defendants pursuant to state law; their Second Claim is for unlawful seizure and false
arrest on December 18, 2020, against Couch and RPD Officers pursuant to § 1983. City
Defendants move against these claims, but only insofar as they relate to the September 2020
protests. Because the First and Second Claims pertain to Plaintiff’s alleged arrest on December
18, 2020, the City Defendants’ motion with respect to those claims is denied.
II. Third Claim: Evidence Fabrication/Denial of Fair Trial Related to December 18, 2020
Arrest – Couch
To state a claim for fabricated evidence, a plaintiff must plead that “an (1) investigating
official (2) fabricates information (3) that is likely to influence a jury's verdict, (4) forwards that
information to prosecutors, and (5) the plaintiff suffers a deprivation of life, liberty, or property as
a result.” O’Hara v. City of New York, No. 17-CV-4766(ILG)(RML), 2021 WL 4932287, at *6
(E.D.N.Y. Oct. 22, 2021) (quoting another source).
The case law suggests that one court appearance post-arraignment is a sufficient
deprivation of liberty. See Levy v. City of New York, 935 F. Supp. 2d 575, 589 (E.D.N.Y. 2013).
Plaintiff alleges that they were arrested on December 18, 2020, and then the charges were
“dismissed in their entirety at the first court appearance on or about February 11, 2021.” ECF No.
7 ¶ 85. But Couch argues that Plaintiff has not alleged whether they attended one court appearance
post-arraignment or whether the one appearance was the arraignment. Reading the allegations in
the light most favorable to Plaintiff, the Court concludes that this claim should proceed to
discovery.
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III. Fourth & Fifth Claims: Malicious Prosecution Under § 1983 and State Law – City
Defendants
“In order to prevail on a § 1983 claim against a state actor for malicious prosecution, a
plaintiff must show a violation of his rights under the Fourth Amendment and must establish the
elements of a malicious prosecution claim under state law. . . . In New York, those elements are:
(1) the initiation or continuation of a criminal proceeding against plaintiff; (2) termination of the
proceeding in plaintiff’s favor; (3) lack of probable cause for commencing the proceeding; and (4)
actual malice as a motivation for defendant’s actions.” Rodriguez v. City of New York, No.
21CV1649AMDRLM, 2022 WL 768159, at *6 (E.D.N.Y. Mar. 14, 2022) (quoting other sources).
The City Defendants contend that Plaintiff has not established the second element:
termination of the proceeding in plaintiff’s favor. In a recent decision, the Supreme Court
rejected Second Circuit precedent on the “favorable termination” element and held that “a Fourth
Amendment claim under § 1983 for malicious prosecution does not require the plaintiff to show
that the criminal prosecution ended with some affirmative indication of innocence.” Thompson v.
Clark, 142 S. Ct. 1332, 1341 (2022). Rather, “[a] plaintiff need only show that the criminal
prosecution ended without a conviction.” Id. Plaintiff alleges that the charges against them were
dismissed at the first appearance because videos established that Couch’s police report was false.
ECF No. 7 ¶¶ 84-86. Those allegations easily meet Thompson’s low bar.
But Thompson does not necessarily settle all the potential legal issues related to Plaintiff’s
Fifth Claim. For one thing, while it is obvious that Thompson bears materially on Plaintiff’s Fourth
Claim, which is a malicious prosecution claim arising under federal law, it is unclear how
Thompson bears on their second claim, which is a malicious prosecution claim arising under state
common law. Zwick v. Town of Cheektowaga, No. 17-CV-727, 2021 WL 4895106, at *3
(W.D.N.Y. Oct. 20, 2021) (“New York law and federal law diverge on the showing required to
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satisfy the ‘favorable termination’ element.”). Nevertheless, because the parties do not address
this issue, the Court declines to decide it now. The Fourth and Fifth Claims may proceed.
IV. Seventh Claim: Excessive Force – Individual Defendants
Only the Sheriff’s Deputies move against Plaintiff’s excessive force claim, which is
asserted against Individual Defendants.
The Sheriff’s Deputies argue that the claims against individual, unnamed Sheriff’s deputies
must be dismissed because Plaintiff’s allegations constitute impermissible “group pleading” and
that Plaintiff has not alleged that County Defendants used the requisite force. ECF 16-3 at 11.
First, to be sure, a complaint that “lump[s] all the defendants together in each claim
provid[es] no factual basis to distinguish their conduct . . .. fail[s] to satisfy [the] minimum
[pleading] standard.” Atuahene v. City of Hartford, 10 F. App’x 33, 34 (2d Cir. 2001) (summary
order) (internal quotations omitted). But Plaintiff has not lumped all Defendants’ conduct
together. Rather, they claim that unknown Sherriff’s Deputies “and/or” unknown RPD Officers
shot pepper balls at them and used pepper spray on them during the September 2-6, 2020 protests. 2
ECF No. 7 ¶ 199. That is a specific allegation regarding as-of-yet unknown deputy or
deputies. Given the presence of law enforcement from multiple jurisdictions at the protests, such
a claim is not implausible. The Court will permit Plaintiff to conduct discovery to determine the
identities of any such Sheriff’s Deputies.
Second, the Sheriff’s Deputies argue that Fourth Amendment liability is premised on the
use of “excessive force when detaining or arresting individuals,” and that the Amended Complaint
contains no allegation that the Sheriff’s Deputies used excessive force during an arrest. ECF No.
16-3 at 11; see Jones v. Parmley, 465 F.3d 46, 61 (2d Cir. 2006). But Plaintiff alleges that
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Plaintiff also alleges that RPD Officers used excessive force on them on October 13, 2020 and December 18, 2020,
but because City Defendants do not move against this claim, the Court declines to address the City-specific allegations.
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Individual Defendants used “less-than-lethal” military-grade weapons and chemical weapons
against Plaintiff. ECF No. 7 ¶¶ 18, 200. Courts have routinely concluded that the use of such
weapons against protestors constitutes a seizure for purposes of the Fourth Amendment. See Edrei
v. Maguire, 892 F.3d 525, 540-42 (2d Cir. 2018) (“Our sister circuits and district courts in this
Circuit have routinely applied excessive force principles to crowd control situations.”).
V. Sixth Claim: Assault & Battery – City and Individual Defendants
The Sheriff’s Deputies again move to dismiss the Sixth Claim for assault and battery for
the same reasons they move to dismiss the Seventh Claim for excessive force. “Courts in the
Second Circuit have found that [f]ederal excessive force claims and state law assault and battery
claims against police officers are nearly identical.” John v. City of New York, 406 F. Supp. 3d 240,
245 (E.D.N.Y. 2017) (internal quotation marks omitted). Therefore, for the same reasons
articulated above, the Sheriff’s Deputies’ motion to dismiss the Sixth Claim for assault and battery
is denied.
VI. Eighth Claim: First Amendment Infringement & Retaliation – All Defendants
The Amended Complaint advances two theories of First Amendment liability: (a) that
Defendants “retaliated against Plaintiff for engaging in speech and/or conduct protected by the
First Amendment” and (b) that Defendants “imposed restrictions on such protected speech and/or
conduct that violated Plaintiff’s First Amendment rights, including, but not limited to subjecting
Plaintiff to excessive force, in arresting and prosecuting [P]laintiff, in selectively enforcing laws
and regulations against Plaintiff, and in otherwise violating Plaintiff’s rights.” ECF No. 7 ¶ 209.
Both theories are premised on Defendants’ retaliation for Plaintiff expressing their views.
To plead a First Amendment retaliation claim a plaintiff must show: “(1) he has a right
protected by the First Amendment; (2) the defendant’s actions were motivated or substantially
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caused by his exercise of that right; and (3) the defendant’s actions caused him some injury.”
Dorsett v. Cnty. of Nassau, 732 F.3d 157, 160 (2d Cir. 2013).
The County Defendants argue that Plaintiff has not established any constitutional injury
because Plaintiff has not alleged that Plaintiff was unable to protest or stopped protesting because
of any action taken by the Sheriff’s Deputies. ECF No. 16-3 at 14-15.
However, “[t]he type of allegations necessary to satisfy the injury element of a First
Amendment retaliation claim vary depending on the factual context.” Morales v. Valley Stream
Union Free Sch. Dist. 24, 527 F. Supp. 3d 470, 474 (E.D.N.Y. 2021) (quoting another case). As
a result, “[c]hilled speech is not the sine qua non of a First Amendment claim. A plaintiff has
standing if he can show either that his speech has been adversely affected by the government
retaliation or that he has suffered some other concrete harm.” Dorsett, 732 at 160 (emphasis in
original).
Here, Plaintiff alleges that they were physically injured because Defendants did not agree
with her views on policing. ECF No. 7 ¶¶ 94, 116. Viewed in the light most favorable to Plaintiff,
at this stage, the Court concludes that such physical injuries are “some other concrete harm” and
therefore meet the causation requirement.
To the extent Defendants argue that the City’s emergency order vitiates any First
Amendment retaliation claim, that argument is misplaced. The City Defendants insist that the
Court has already upheld the constitutionality of the Emergency Order. ECF No. 17-2 at 10. That
is not entirely accurate. To be sure, in Martin v. Warren, 482 F. Supp. 3d 51 (W.D.N.Y. 2020),
District Judge Charles J. Siragusa denied plaintiff-protestors’ motion for a preliminary injunction,
concluding that they were not likely to succeed on their arguments that the emergency order’s
curfew was pretextual, unrelated to significant government interests, or not narrowly tailored. But
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he did not affirmatively find that the emergency order was a reasonable time, place, and manner
restriction. And even if he did, there is nothing to suggest that police action purportedly taken
under the emergency order could not supply the basis for a retaliation claim. Finally, as Plaintiff
points out, many of the alleged retaliatory acts did not take place during the time the emergency
order was in force. Therefore, Defendants’ motion to dismiss the Eighth Claim is denied.
VII. Ninth Claim: Failure to Intervene – Individual Defendants
“It is widely recognized that all law enforcement officials have an affirmative duty to
intervene to protect the constitutional rights of citizens from infringement by other law
enforcement officers in their presence.” Allen v. City of New York, 480 F. Supp. 2d 689, 694
(S.D.N.Y. 2007) (quoting another source). To state a claim against an officer for his or her failure
to intervene, a plaintiff must allege facts demonstrating that “(1) the officer had a realistic
opportunity to intervene and prevent the harm; (2) [the officer knew] that the victim’s
constitutional rights were being violated; and (3) the officer [did] not take reasonable steps to
intervene.” Jean-Laurent v. Wilkinson, 540 F. Supp. 2d 501, 512 (S.D.N.Y. 2008).
Individual Defendants argue first that Plaintiff has failed to plead the second element—that
they knew that Plaintiff’s constitutional rights were being violated. Although this claim in the
Amended Complaint does not contain the words “knew” or “knowledge,” it does state facts
sufficient to infer knowledge. For example, the Amended Complaint contains facts suggesting
that Individual Defendants were in close proximity to all of the alleged constitutional violations as
they were occurring and were therefore aware of them. These allegations are sufficient to proceed
to discovery. Weaver v. City of New York, No. 13-CV-20 CBA SMG, 2014 WL 950041, at *7
(E.D.N.Y. Mar. 11, 2014) (“Because [plaintiff’s] complaint alleges facts from which this Court
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could reasonably infer that at least one of the defendants had reason to know that [plaintiff] was
being unjustifiably arrested, her claim may proceed.”).
Second, Individual Defendants argue that a failure to intervene claim cannot lie against law
enforcement officers who also engaged in the underlying constitutional violation. Essentially,
Individual Defendants urge the Court to dismiss the failure to intervene claim because Defendants
could not possibly have committed the underlying constitutional violations (such as excessive
force and false arrest) while they simultaneously failed to intervene to prevent those same
violations.
That is a misreading of the facts and law. Plaintiff alleges multiple constitutional
violations, and it is possible that a defendant directly participated in one constitutional violation
while he failed to intervene in another. Moreover, “the plaintiff is allowed to plead in the
alternative” and “the alternative claims need not be consistent.” Breton v. City of New York, 404
F. Supp. 3d 799, 814 (S.D.N.Y. 2019) (declining to dismiss failure to intervene claim on the basis
that defendant “directly participated in both the arrest and prosecution and therefore could not have
intervened”).
VIII. Tenth Claim: Negligent Training, Supervision, and Discipline – Baxter
“It is well-settled under New York law that a sheriff may not be held vicariously liable for
the torts committed by its employees while they are performing a criminal justice function.” Ryan
v. Moss, No. 11-CV-6015P, 2013 WL 956722, at *18 (W.D.N.Y. Mar. 12, 2013). There is no
question that the Sheriff’s Deputies here were performing a criminal justice function during the
protests.
However, in contrast to respondeat superior liability, “a sheriff may be held liable for his
own negligent conduct, including a failure to train or supervise his subordinates.” Id. at *19
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(emphasis added); see Cash v. Cnty. of Erie, No. 04-CV-182C(F), 2007 WL 2027844, at *5
(W.D.N.Y. July 11, 2007) (“[A] cause of action sounding in negligence is legally sustainable
against a [sheriff] when the injured party demonstrates that he was injured due to the negligent
training and supervision of a law enforcement officer.”).
Baxter argues that he cannot be held liable for his own alleged negligent conduct if the
Sheriff’s deputies were acting outside the scope of their employment. This argument conflates the
unique standard for a sheriff’s liability under a negligent training, supervision, and discipline
theory, with the standard for other municipal employers, explained below with respect to the City.
Baxter’s argument, therefore, is misplaced.
So too is Baxter’s argument that the Amended Complaint is devoid of allegations that
Baxter was ever aware of any supervision or training failures. As explained below with respect to
Monell liability, Plaintiff has alleged that Baxter took “no steps to train Sheriff’s Deputies on
lawfully policing protests and other First Amendment activities,” ECF No. 7 ¶ 119, and that Baxter
failed to train Sheriff’s Deputies on how to distinguish peaceful protests from acts of violence and
how they should respond to each differently, id. ¶ 120. Accordingly, Baxter’s motion to dismiss
the negligent training, supervision, and discipline claim is denied.
IX. Eleventh Claim: Negligent Planning – Baxter
Plaintiff asserts a claim against Baxter for his own negligent planning of the protest
response. Baxter and Plaintiff agree that a “special duty” is required to establish a negligence
claim against Baxter, but Baxter argues that Plaintiff has not established that Baxter owed a
“special duty” to Plaintiff and that the absence of such a “special duty” is fatal to their claim. The
Court agrees with Baxter that Plaintiff must allege a “special duty,” but it concludes that—at least
for purposes of this motion to dismiss—Plaintiff has done so.
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“When a negligence claim is asserted against a municipality or its employees, the threshold
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FILED: MONROE COUNTY CLERK 07/26/2022 06:54 AM INDEX NO. E2021008184 NYSCEF DOC. NO. 31 RECEIVED NYSCEF: 07/26/2022 MONROE COUNTY CLERK’S OFFICE THIS IS NOT A BILL. THIS IS YOUR RECEIPT. Receipt # 3146669 Book Page CIVIL Return To: No. Pages: 25 ELLIOT DOLBY-SHIELDS 192 Lexington Avenue, Suite 802 Instrument: EXHIBIT(S) New York, NY 10016 Control #: 202207260725 Index #: E2021008184 Date: 07/26/2022 Adler, Sabine Time: 11:51:48 AM Aweis, Halima Barron, Annalisa Bauman, Hannah Beiter, Shea The City of Rochester KOERNER, MICHAEL LUDWIG, GERALD Baxter, Todd Total Fees Paid: $0.00 Employee: State of New York MONROE COUNTY CLERK’S OFFICE WARNING – THIS SHEET CONSTITUTES THE CLERKS ENDORSEMENT, REQUIRED BY SECTION 317-a(5) & SECTION 319 OF THE REAL PROPERTY LAW OF THE STATE OF NEW YORK. DO NOT DETACH OR REMOVE. JAMIE ROMEO MONROE COUNTY CLERK 202207260725 Index # INDEX : E2021008184 NO. E2021008184 FILED: MONROE COUNTY CLERK 07/26/2022 06:54 AM NYSCEF DOC. NO. 31Case 6:21-cv-06720-FPG Document 24 Filed 06/30/22 Page 1 of 24NYSCEF: RECEIVED 07/26/2022 UNITED STATES DISTRICT COURT WESTERN DISTRICT OF NEW YORK INDIIA MARING, Plaintiff, Case # 21-CV-6720-FPG v. DECISION AND ORDER THE CITY OF ROCHESTER, et al., Defendants. INTRODUCTION This is one of many cases pending before the Court that arises out of protests that erupted in the City of Rochester in September 2020 following the release of news that Daniel Prude, an unarmed black man, died during an encounter with police in March 2020. Plaintiff Indiia Maring (they/them)—a protestor who alleges they were injured during the protests—filed this action in state court against the City of Rochester (“City”), Rochester Police Department (“RPD”) Officer Tyler Couch, John Doe Police Officers 1-200, the County of Monroe (the “County”), Monroe County Sheriff Todd Baxter (“Baxter”), and Richard Roe Sheriff’s Deputies 1-200, 1 for multiple federal and state claims. The County removed the case to federal court on November 23, 2021. ECF No. 1. In response to a motion to dismiss, Plaintiff filed an Amended Complaint on January 6, 2022. ECF No. 7. In the Amended Complaint, Plaintiff raises 18 claims: (1) unlawful seizure/false arrest against City Defendants, pursuant to 42 U.S.C. § 1983; (2) unlawful seizure/false arrest against RPD Officers, pursuant to New York State law; (3) evidence fabrication/denial of fair trial against 1 Couch and John Doe police officers (“RPD Officers”) and the City are collectively referred to as “City Defendants.” Richard Roe Sheriff’s deputies (“Sheriff’s Deputies”), the County, and Baxter are collectively referred to as “County Defendants.” The RPD Officers and Sheriff’s Deputies are collectively referred to as “Individual Defendants.” All defendants are collectively referred to as “Defendants.” 1 202207260725 IndexNO. INDEX #: E2021008184 E2021008184 FILED: MONROE COUNTY CLERK 07/26/2022 06:54 AM NYSCEF DOC. NO. 31Case 6:21-cv-06720-FPG Document 24 Filed 06/30/22 Page 2 of 24NYSCEF: RECEIVED 07/26/2022 Couch related to the December 18, 2020 arrest, pursuant to § 1983; (4) malicious prosecution against the City and Couch related to the December 18, 2020 arrest, pursuant to New York State law; (5) malicious prosecution against Couch related to the December 18, 2020 arrest, pursuant to § 1983; (6) assault and battery against the City and Individual Defendants, pursuant to New York State law; (7) excessive force against Individual Defendants, pursuant to § 1983; (8) First Amendment infringement and retaliation against all Defendants, pursuant to § 1983; (9) failure to intervene against Individual Defendants, pursuant to § 1983; (10) negligent training, supervision, and discipline against Baxter, pursuant to New York State law; (11) negligent planning of the protest response against Baxter, pursuant to New York State law; (12) negligent training, supervision, and discipline against the City, pursuant to New York State law; (13) negligent planning of the protest response against the City, pursuant to New York State law; (14) negligence against the Individual Defendants, pursuant to New York State law; (15) municipal/Monell liability against the City for alleged violations of the First, Fourth, and Fourteenth Amendments related to the protests, pursuant to 42 U.S.C. § 1983; (16) municipal/Monell liability against the County and Baxter for alleged violations of the First, Fourth, and Fourteenth Amendments related to the protests, pursuant to § 1983; (17) municipal/Monell liability against the City for a policy, practice, and custom of retaliating against individuals who are lawfully recording police activity in public places, pursuant to § 1983; and (18) violation of the New York Right to Monitor Act, New York Civil Rights Law § 79-p, against the City Defendants. On January 14, 2022, the City Defendants filed a motion to dismiss the First, Second, Third, Fourth, Fifth, Eighth, Ninth, Twelfth, Thirteenth, and Fourteenth Claims. ECF No. 12. They do not move against the Sixth, Seventh, Fifteenth, Seventeenth, or Eighteenth Claims, all of 2 202207260725 IndexNO. INDEX #: E2021008184 E2021008184 FILED: MONROE COUNTY CLERK 07/26/2022 06:54 AM NYSCEF DOC. NO. 31Case 6:21-cv-06720-FPG Document 24 Filed 06/30/22 Page 3 of 24NYSCEF: RECEIVED 07/26/2022 which Plaintiff asserted against them. On February 28, 2022, the County Defendants filed a motion to dismiss all of the claims asserted against them. ECF No. 16. The motions are now fully briefed. FACTUAL BACKGROUND Plaintiff—who is a resident of the County—participated in large public demonstrations in September 2020. On September 2, 2020, at around 5:00 p.m., Plaintiff was peacefully protesting in front of the Public Safety Building when they were shot with pepper balls and sprayed with pepper spray and/or tear gas. ECF No. 7 ¶¶ 27. The following night, at around 10:30 p.m., Plaintiff was again shot with shot with pepper balls without any warning or dispersal order being issued first. Id. ¶¶ 33-34. At some point between then and 11:30 p.m., Plaintiff was “subjected . . . to a large amount of chemicals from pepper spray and/or tear gas,” causing Plaintiff to suffer “serious physical and emotional injuries and other damages, including menstrual irregularities.” Id. ¶¶ 35- 37. On the night of September 4-5, 2020, Individual Defendants escorted Plaintiff and other peaceful protestors onto the Court Street Bridge. Id. ¶ 39. However, when the protestors reached the other side of the bridge, law enforcement stopped the protestors with metal barricades, trapping them on the bridge. Id. At around 10:43 p.m., law enforcement ordered the protestors to disperse. Id. ¶ 43. But because the protestors were trapped on the bridge, there was nowhere to go. Id. Within seconds of the dispersal order, law enforcement began firing pepper balls, pepper spray, and tear gas at the protestors, including at Plaintiff. Id. ¶¶ 44-45. Individual Defendants “forcibly pushed Plaintiff and other protestors off the bridge” at around 12:30 a.m., and subjected them to a large amount of tear gas, causing serious physical and emotional damage. Id. ¶¶ 46-48. Plaintiff again attended peaceful protests on the night of September 5-6, 2020. That night, police escorted protestors until they approached the intersection of Broad Street and Exchange 3 202207260725 IndexNO. INDEX #: E2021008184 E2021008184 FILED: MONROE COUNTY CLERK 07/26/2022 06:54 AM NYSCEF DOC. NO. 31Case 6:21-cv-06720-FPG Document 24 Filed 06/30/22 Page 4 of 24NYSCEF: RECEIVED 07/26/2022 Boulevard, which the police had closed. Id. ¶¶ 51-52. When Plaintiff and the other protestors approached the intersection, they were met with “an overwhelming presence of RPD officers, Sheriff’s deputies and State Police in full riot gear with military grade weapons—including a bearcat tank—and police dogs.” Id. ¶ 53. Plaintiff and the other protestors were stopped at the intersection. Id. ¶ 54. Individual Defendants attacked Plaintiff and other protestors with tear gas, other chemical weapons, and flash bang grenades. Id. ¶¶ 56-57. Over a month later, on October 13, 2020, Plaintiff and several other individuals went to the Public Safety Building to inquire about their friend, Nicholas Wilt, who had been falsely arrested and was being detained on a mistaken warrant. Id. ¶ 60. While Plaintiff was attempting to ask for information, RPD Officers demanded that Plaintiff leave. Id. ¶ 61. Without providing enough time to comply with the order, RDP Officers pushed Plaintiff, pinning them to the wall, and causing Plaintiff to fall to the ground and hit their head. Id. ¶ 63. Thereafter, as Plaintiff exited the Public Safety Building, an RPD Officer hit them in the hand with a baton. Id. ¶ 64. On December 18, 2020, Plaintiff and a group of about 20 other protestors held a demonstration at 87 Glasgow Street in the City to object to the unjust eviction of a single mother and her three children. Id. ¶ 67. When Plaintiff arrived, Couch and approximately 20 RPD Officers in full riot gear were assembled in front of 87 Glasgow Street. Id. ¶ 72. Plaintiff stood alone on the sidewalk and filmed the police response. Id. ¶ 73. At all times, Plaintiff was located on the public sidewalk and never interfered with the officers. Id. ¶¶ 73-74. “Suddenly, without warning or justification” Couch and other RPD Officers arrested Plaintiff “in retaliation for filming RPD officers performing their duties in a public place.” Id. ¶¶ 75-79. Despite that Plaintiff was not committing any crime or violation at the time of their arrest, id. ¶ 79, Couch fabricated official police paperwork to falsely indicate that Plaintiff had committed violations, id. ¶¶ 82-83. As a 4 202207260725 IndexNO. INDEX #: E2021008184 E2021008184 FILED: MONROE COUNTY CLERK 07/26/2022 06:54 AM NYSCEF DOC. NO. 31Case 6:21-cv-06720-FPG Document 24 Filed 06/30/22 Page 5 of 24NYSCEF: RECEIVED 07/26/2022 result, Plaintiff was charged with a violation of Penal Law § 195.05, but the charges were dismissed at the first court appearance. Id. ¶¶ 84-86. Plaintiff alleges, inter alia, that Defendants failed to intervene on Plaintiff’s behalf, that the police response to the protests and protesters was part of an unconstitutional municipal practice, that Defendants failed to properly train officers in proper protest responses, and that Defendants acted negligently in planning for and responding to the protests. LEGAL STANDARD To survive a motion to dismiss under Rule 12(b)(6), “a complaint must contain sufficient factual matter . . . ‘to state a claim to relief that is plausible on its face.’” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). A claim for relief is plausible when the plaintiff pleads facts sufficient to allow the Court to draw reasonable inferences that the defendant is liable for the alleged misconduct. Id. In reviewing a motion to dismiss under Federal Rule of Civil Procedure 12(b)(6), the Court must accept as true the factual allegations in the complaint and draw all reasonable inferences in favor of the plaintiff. See Nechis v. Oxford Health Plans, Inc., 421 F.3d 96, 100 (2d Cir. 2005). At the same time, the Court is not required to credit “[l]egal conclusions, deductions, or opinions couched as factual allegations . . . [with] a presumption of truthfulness.” In re NYSE Specialists Sec. Litig., 503 F.3d 89, 95 (2d Cir. 2007) (internal citations and quotations omitted). The “touchstone for a well-pleaded complaint under Federal Rules of Civil Procedures 8(a) and 12(b)(6) is plausibility.” In re AOL Time Warner, Inc. Sec. Litig., 503 F. Supp. 2d 666, 670 (S.D.N.Y. 2007) (citing Twombly, 550 U.S. at 560-61). To meet this plausibility standard, the factual allegations must permit the Court “to infer more than the mere possibility of misconduct.” Iqbal, 556 U.S. at 679. 5 202207260725 IndexNO. INDEX #: E2021008184 E2021008184 FILED: MONROE COUNTY CLERK 07/26/2022 06:54 AM NYSCEF DOC. NO. 31Case 6:21-cv-06720-FPG Document 24 Filed 06/30/22 Page 6 of 24NYSCEF: RECEIVED 07/26/2022 DISCUSSION I. First & Second Claims: Unlawful Seizure/False Arrest on December 18, 2020 Plaintiff’s First Claim is for unlawful seizure and false arrest on December 18, 2020, against City Defendants pursuant to state law; their Second Claim is for unlawful seizure and false arrest on December 18, 2020, against Couch and RPD Officers pursuant to § 1983. City Defendants move against these claims, but only insofar as they relate to the September 2020 protests. Because the First and Second Claims pertain to Plaintiff’s alleged arrest on December 18, 2020, the City Defendants’ motion with respect to those claims is denied. II. Third Claim: Evidence Fabrication/Denial of Fair Trial Related to December 18, 2020 Arrest – Couch To state a claim for fabricated evidence, a plaintiff must plead that “an (1) investigating official (2) fabricates information (3) that is likely to influence a jury's verdict, (4) forwards that information to prosecutors, and (5) the plaintiff suffers a deprivation of life, liberty, or property as a result.” O’Hara v. City of New York, No. 17-CV-4766(ILG)(RML), 2021 WL 4932287, at *6 (E.D.N.Y. Oct. 22, 2021) (quoting another source). The case law suggests that one court appearance post-arraignment is a sufficient deprivation of liberty. See Levy v. City of New York, 935 F. Supp. 2d 575, 589 (E.D.N.Y. 2013). Plaintiff alleges that they were arrested on December 18, 2020, and then the charges were “dismissed in their entirety at the first court appearance on or about February 11, 2021.” ECF No. 7 ¶ 85. But Couch argues that Plaintiff has not alleged whether they attended one court appearance post-arraignment or whether the one appearance was the arraignment. Reading the allegations in the light most favorable to Plaintiff, the Court concludes that this claim should proceed to discovery. 6 202207260725 IndexNO. INDEX #: E2021008184 E2021008184 FILED: MONROE COUNTY CLERK 07/26/2022 06:54 AM NYSCEF DOC. NO. 31Case 6:21-cv-06720-FPG Document 24 Filed 06/30/22 Page 7 of 24NYSCEF: RECEIVED 07/26/2022 III. Fourth & Fifth Claims: Malicious Prosecution Under § 1983 and State Law – City Defendants “In order to prevail on a § 1983 claim against a state actor for malicious prosecution, a plaintiff must show a violation of his rights under the Fourth Amendment and must establish the elements of a malicious prosecution claim under state law. . . . In New York, those elements are: (1) the initiation or continuation of a criminal proceeding against plaintiff; (2) termination of the proceeding in plaintiff’s favor; (3) lack of probable cause for commencing the proceeding; and (4) actual malice as a motivation for defendant’s actions.” Rodriguez v. City of New York, No. 21CV1649AMDRLM, 2022 WL 768159, at *6 (E.D.N.Y. Mar. 14, 2022) (quoting other sources). The City Defendants contend that Plaintiff has not established the second element: termination of the proceeding in plaintiff’s favor. In a recent decision, the Supreme Court rejected Second Circuit precedent on the “favorable termination” element and held that “a Fourth Amendment claim under § 1983 for malicious prosecution does not require the plaintiff to show that the criminal prosecution ended with some affirmative indication of innocence.” Thompson v. Clark, 142 S. Ct. 1332, 1341 (2022). Rather, “[a] plaintiff need only show that the criminal prosecution ended without a conviction.” Id. Plaintiff alleges that the charges against them were dismissed at the first appearance because videos established that Couch’s police report was false. ECF No. 7 ¶¶ 84-86. Those allegations easily meet Thompson’s low bar. But Thompson does not necessarily settle all the potential legal issues related to Plaintiff’s Fifth Claim. For one thing, while it is obvious that Thompson bears materially on Plaintiff’s Fourth Claim, which is a malicious prosecution claim arising under federal law, it is unclear how Thompson bears on their second claim, which is a malicious prosecution claim arising under state common law. Zwick v. Town of Cheektowaga, No. 17-CV-727, 2021 WL 4895106, at *3 (W.D.N.Y. Oct. 20, 2021) (“New York law and federal law diverge on the showing required to 7 202207260725 IndexNO. INDEX #: E2021008184 E2021008184 FILED: MONROE COUNTY CLERK 07/26/2022 06:54 AM NYSCEF DOC. NO. 31Case 6:21-cv-06720-FPG Document 24 Filed 06/30/22 Page 8 of 24NYSCEF: RECEIVED 07/26/2022 satisfy the ‘favorable termination’ element.”). Nevertheless, because the parties do not address this issue, the Court declines to decide it now. The Fourth and Fifth Claims may proceed. IV. Seventh Claim: Excessive Force – Individual Defendants Only the Sheriff’s Deputies move against Plaintiff’s excessive force claim, which is asserted against Individual Defendants. The Sheriff’s Deputies argue that the claims against individual, unnamed Sheriff’s deputies must be dismissed because Plaintiff’s allegations constitute impermissible “group pleading” and that Plaintiff has not alleged that County Defendants used the requisite force. ECF 16-3 at 11. First, to be sure, a complaint that “lump[s] all the defendants together in each claim provid[es] no factual basis to distinguish their conduct . . .. fail[s] to satisfy [the] minimum [pleading] standard.” Atuahene v. City of Hartford, 10 F. App’x 33, 34 (2d Cir. 2001) (summary order) (internal quotations omitted). But Plaintiff has not lumped all Defendants’ conduct together. Rather, they claim that unknown Sherriff’s Deputies “and/or” unknown RPD Officers shot pepper balls at them and used pepper spray on them during the September 2-6, 2020 protests. 2 ECF No. 7 ¶ 199. That is a specific allegation regarding as-of-yet unknown deputy or deputies. Given the presence of law enforcement from multiple jurisdictions at the protests, such a claim is not implausible. The Court will permit Plaintiff to conduct discovery to determine the identities of any such Sheriff’s Deputies. Second, the Sheriff’s Deputies argue that Fourth Amendment liability is premised on the use of “excessive force when detaining or arresting individuals,” and that the Amended Complaint contains no allegation that the Sheriff’s Deputies used excessive force during an arrest. ECF No. 16-3 at 11; see Jones v. Parmley, 465 F.3d 46, 61 (2d Cir. 2006). But Plaintiff alleges that 2 Plaintiff also alleges that RPD Officers used excessive force on them on October 13, 2020 and December 18, 2020, but because City Defendants do not move against this claim, the Court declines to address the City-specific allegations. 8 202207260725 IndexNO. INDEX #: E2021008184 E2021008184 FILED: MONROE COUNTY CLERK 07/26/2022 06:54 AM NYSCEF DOC. NO. 31Case 6:21-cv-06720-FPG Document 24 Filed 06/30/22 Page 9 of 24NYSCEF: RECEIVED 07/26/2022 Individual Defendants used “less-than-lethal” military-grade weapons and chemical weapons against Plaintiff. ECF No. 7 ¶¶ 18, 200. Courts have routinely concluded that the use of such weapons against protestors constitutes a seizure for purposes of the Fourth Amendment. See Edrei v. Maguire, 892 F.3d 525, 540-42 (2d Cir. 2018) (“Our sister circuits and district courts in this Circuit have routinely applied excessive force principles to crowd control situations.”). V. Sixth Claim: Assault & Battery – City and Individual Defendants The Sheriff’s Deputies again move to dismiss the Sixth Claim for assault and battery for the same reasons they move to dismiss the Seventh Claim for excessive force. “Courts in the Second Circuit have found that [f]ederal excessive force claims and state law assault and battery claims against police officers are nearly identical.” John v. City of New York, 406 F. Supp. 3d 240, 245 (E.D.N.Y. 2017) (internal quotation marks omitted). Therefore, for the same reasons articulated above, the Sheriff’s Deputies’ motion to dismiss the Sixth Claim for assault and battery is denied. VI. Eighth Claim: First Amendment Infringement & Retaliation – All Defendants The Amended Complaint advances two theories of First Amendment liability: (a) that Defendants “retaliated against Plaintiff for engaging in speech and/or conduct protected by the First Amendment” and (b) that Defendants “imposed restrictions on such protected speech and/or conduct that violated Plaintiff’s First Amendment rights, including, but not limited to subjecting Plaintiff to excessive force, in arresting and prosecuting [P]laintiff, in selectively enforcing laws and regulations against Plaintiff, and in otherwise violating Plaintiff’s rights.” ECF No. 7 ¶ 209. Both theories are premised on Defendants’ retaliation for Plaintiff expressing their views. To plead a First Amendment retaliation claim a plaintiff must show: “(1) he has a right protected by the First Amendment; (2) the defendant’s actions were motivated or substantially 9 202207260725 IndexNO. INDEX #: E2021008184 E2021008184 FILED: MONROE COUNTY CLERK 07/26/2022 06:54 AM NYSCEF DOC. NO. Case 6:21-cv-06720-FPG 31 Document 24 Filed 06/30/22 Page 10 of 24 RECEIVED NYSCEF: 07/26/2022 caused by his exercise of that right; and (3) the defendant’s actions caused him some injury.” Dorsett v. Cnty. of Nassau, 732 F.3d 157, 160 (2d Cir. 2013). The County Defendants argue that Plaintiff has not established any constitutional injury because Plaintiff has not alleged that Plaintiff was unable to protest or stopped protesting because of any action taken by the Sheriff’s Deputies. ECF No. 16-3 at 14-15. However, “[t]he type of allegations necessary to satisfy the injury element of a First Amendment retaliation claim vary depending on the factual context.” Morales v. Valley Stream Union Free Sch. Dist. 24, 527 F. Supp. 3d 470, 474 (E.D.N.Y. 2021) (quoting another case). As a result, “[c]hilled speech is not the sine qua non of a First Amendment claim. A plaintiff has standing if he can show either that his speech has been adversely affected by the government retaliation or that he has suffered some other concrete harm.” Dorsett, 732 at 160 (emphasis in original). Here, Plaintiff alleges that they were physically injured because Defendants did not agree with her views on policing. ECF No. 7 ¶¶ 94, 116. Viewed in the light most favorable to Plaintiff, at this stage, the Court concludes that such physical injuries are “some other concrete harm” and therefore meet the causation requirement. To the extent Defendants argue that the City’s emergency order vitiates any First Amendment retaliation claim, that argument is misplaced. The City Defendants insist that the Court has already upheld the constitutionality of the Emergency Order. ECF No. 17-2 at 10. That is not entirely accurate. To be sure, in Martin v. Warren, 482 F. Supp. 3d 51 (W.D.N.Y. 2020), District Judge Charles J. Siragusa denied plaintiff-protestors’ motion for a preliminary injunction, concluding that they were not likely to succeed on their arguments that the emergency order’s curfew was pretextual, unrelated to significant government interests, or not narrowly tailored. But 10 202207260725 IndexNO. INDEX #: E2021008184 E2021008184 FILED: MONROE COUNTY CLERK 07/26/2022 06:54 AM NYSCEF DOC. NO. Case 6:21-cv-06720-FPG 31 Document 24 Filed 06/30/22 Page 11 of 24 RECEIVED NYSCEF: 07/26/2022 he did not affirmatively find that the emergency order was a reasonable time, place, and manner restriction. And even if he did, there is nothing to suggest that police action purportedly taken under the emergency order could not supply the basis for a retaliation claim. Finally, as Plaintiff points out, many of the alleged retaliatory acts did not take place during the time the emergency order was in force. Therefore, Defendants’ motion to dismiss the Eighth Claim is denied. VII. Ninth Claim: Failure to Intervene – Individual Defendants “It is widely recognized that all law enforcement officials have an affirmative duty to intervene to protect the constitutional rights of citizens from infringement by other law enforcement officers in their presence.” Allen v. City of New York, 480 F. Supp. 2d 689, 694 (S.D.N.Y. 2007) (quoting another source). To state a claim against an officer for his or her failure to intervene, a plaintiff must allege facts demonstrating that “(1) the officer had a realistic opportunity to intervene and prevent the harm; (2) [the officer knew] that the victim’s constitutional rights were being violated; and (3) the officer [did] not take reasonable steps to intervene.” Jean-Laurent v. Wilkinson, 540 F. Supp. 2d 501, 512 (S.D.N.Y. 2008). Individual Defendants argue first that Plaintiff has failed to plead the second element—that they knew that Plaintiff’s constitutional rights were being violated. Although this claim in the Amended Complaint does not contain the words “knew” or “knowledge,” it does state facts sufficient to infer knowledge. For example, the Amended Complaint contains facts suggesting that Individual Defendants were in close proximity to all of the alleged constitutional violations as they were occurring and were therefore aware of them. These allegations are sufficient to proceed to discovery. Weaver v. City of New York, No. 13-CV-20 CBA SMG, 2014 WL 950041, at *7 (E.D.N.Y. Mar. 11, 2014) (“Because [plaintiff’s] complaint alleges facts from which this Court 11 202207260725 IndexNO. INDEX #: E2021008184 E2021008184 FILED: MONROE COUNTY CLERK 07/26/2022 06:54 AM NYSCEF DOC. NO. Case 6:21-cv-06720-FPG 31 Document 24 Filed 06/30/22 Page 12 of 24 RECEIVED NYSCEF: 07/26/2022 could reasonably infer that at least one of the defendants had reason to know that [plaintiff] was being unjustifiably arrested, her claim may proceed.”). Second, Individual Defendants argue that a failure to intervene claim cannot lie against law enforcement officers who also engaged in the underlying constitutional violation. Essentially, Individual Defendants urge the Court to dismiss the failure to intervene claim because Defendants could not possibly have committed the underlying constitutional violations (such as excessive force and false arrest) while they simultaneously failed to intervene to prevent those same violations. That is a misreading of the facts and law. Plaintiff alleges multiple constitutional violations, and it is possible that a defendant directly participated in one constitutional violation while he failed to intervene in another. Moreover, “the plaintiff is allowed to plead in the alternative” and “the alternative claims need not be consistent.” Breton v. City of New York, 404 F. Supp. 3d 799, 814 (S.D.N.Y. 2019) (declining to dismiss failure to intervene claim on the basis that defendant “directly participated in both the arrest and prosecution and therefore could not have intervened”). VIII. Tenth Claim: Negligent Training, Supervision, and Discipline – Baxter “It is well-settled under New York law that a sheriff may not be held vicariously liable for the torts committed by its employees while they are performing a criminal justice function.” Ryan v. Moss, No. 11-CV-6015P, 2013 WL 956722, at *18 (W.D.N.Y. Mar. 12, 2013). There is no question that the Sheriff’s Deputies here were performing a criminal justice function during the protests. However, in contrast to respondeat superior liability, “a sheriff may be held liable for his own negligent conduct, including a failure to train or supervise his subordinates.” Id. at *19 12 202207260725 IndexNO. INDEX #: E2021008184 E2021008184 FILED: MONROE COUNTY CLERK 07/26/2022 06:54 AM NYSCEF DOC. NO. Case 6:21-cv-06720-FPG 31 Document 24 Filed 06/30/22 Page 13 of 24 RECEIVED NYSCEF: 07/26/2022 (emphasis added); see Cash v. Cnty. of Erie, No. 04-CV-182C(F), 2007 WL 2027844, at *5 (W.D.N.Y. July 11, 2007) (“[A] cause of action sounding in negligence is legally sustainable against a [sheriff] when the injured party demonstrates that he was injured due to the negligent training and supervision of a law enforcement officer.”). Baxter argues that he cannot be held liable for his own alleged negligent conduct if the Sheriff’s deputies were acting outside the scope of their employment. This argument conflates the unique standard for a sheriff’s liability under a negligent training, supervision, and discipline theory, with the standard for other municipal employers, explained below with respect to the City. Baxter’s argument, therefore, is misplaced. So too is Baxter’s argument that the Amended Complaint is devoid of allegations that Baxter was ever aware of any supervision or training failures. As explained below with respect to Monell liability, Plaintiff has alleged that Baxter took “no steps to train Sheriff’s Deputies on lawfully policing protests and other First Amendment activities,” ECF No. 7 ¶ 119, and that Baxter failed to train Sheriff’s Deputies on how to distinguish peaceful protests from acts of violence and how they should respond to each differently, id. ¶ 120. Accordingly, Baxter’s motion to dismiss the negligent training, supervision, and discipline claim is denied. IX. Eleventh Claim: Negligent Planning – Baxter Plaintiff asserts a claim against Baxter for his own negligent planning of the protest response. Baxter and Plaintiff agree that a “special duty” is required to establish a negligence claim against Baxter, but Baxter argues that Plaintiff has not established that Baxter owed a “special duty” to Plaintiff and that the absence of such a “special duty” is fatal to their claim. The Court agrees with Baxter that Plaintiff must allege a “special duty,” but it concludes that—at least for purposes of this motion to dismiss—Plaintiff has done so. 13 202207260725 IndexNO. INDEX #: E2021008184 E2021008184 FILED: MONROE COUNTY CLERK 07/26/2022 06:54 AM NYSCEF DOC. NO. Case 6:21-cv-06720-FPG 31 Document 24 Filed 06/30/22 Page 14 of 24 RECEIVED NYSCEF: 07/26/2022 “When a negligence claim is asserted against a municipality or its employees, the threshold