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MONROE COUNTY CLERK’S OFFICE THIS IS NOT A BILL. THIS IS YOUR RECEIPT.
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ELLIOT DOLBY-SHIELDS
192 Lexington Avenue, Suite 802 Instrument: EXHIBIT(S)
New York, NY 10016
Control #: 202207260709
Index #: E2021008190
Date: 07/26/2022
ADAMIDES, KATHERINE Time: 11:50:08 AM
ADAMS, TYRUS ASA
ALLMAN, JOE
BEADLE, ALAN
BRALEY, KENNETH
Baxter, Todd
ROCHESTER CITY OF
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Employee:
State of New York
MONROE COUNTY CLERK’S OFFICE
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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
KAITLIN FLANNERY,
Plaintiff,
Case # 22-CV-6062-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 Kaitlin
Flannery—a protester who alleges she was injured during the protests—filed this action in state
court against the City of Rochester (“City”), Rochester Police Department (“RPD”) 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. In
response to motions to dismiss filed in state court, Plaintiff filed an Amended Complaint on
January 12, 2022. ECF No. 1-2. 2 The County removed the case to federal court on February 8,
2022. ECF No. 1.
1
John Doe police officers (“the RPD Officers”) and the City are collectively referred to as “City Defendants.” The
County, Baxter, and Richard Roe Sheriff’s deputies are collectively referred to as “County Defendants.” The RPD
Officers and Sheriff’s deputies are collectively referred to as “Individual Officers.”All defendants are collectively
referred to as “Defendants.”
2
The Amended Complaint was filed as an attachment to the County Defendants’ notice of removal as Exhibit 2. That
exhibit contains 125 pages of pleadings and other documents. The Amended Complaint begins at page 91 of ECF
No. 1-2 and ends at page 124. For ease of reference, the Court will cite to the Amended Complaint as “ECF No. 1-
2.”
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In the Amended Complaint, Plaintiff raises 11 claims: (1) municipal/Monell liability
against the City for alleged violations of the First, Fourth, and Fourteenth Amendments, pursuant
to 42 U.S.C. § 1983; (2) municipal/Monell liability against the County and Baxter for alleged
violations of the First, Fourth, and Fourteenth Amendments, pursuant to § 1983; (3) excessive
force against all Defendants, pursuant to § 1983; (4) assault and battery against all Defendants,
pursuant to New York State law; (5) First Amendment infringement and retaliation against all
Defendants, pursuant to § 1983; (6) failure to intervene against all Defendants, pursuant to § 1983;
(7) negligent training, supervision, and discipline against Baxter, pursuant to New York State law;
(8) negligent planning of the protest response against Baxter, pursuant to New York State law; (9)
negligent training, supervision, and discipline against the City, pursuant to New York State law;
(10) negligent planning of the protest response against the City, pursuant to New York State law;
and (11) negligence against the individual officers, pursuant to New York State law.
On February 8, 2022, the City Defendants filed a motion to dismiss all claims asserted
against them in the Amended Complaint except the claims for excessive force, assault and battery,
and First Amendment violations. ECF No. 3. On March 31, 2022, the County Defendants filed a
motion to dismiss all of the claims asserted against them. ECF No. 11. The motions are now fully
briefed.
FACTUAL BACKGROUND
Plaintiff participated in large public demonstrations on the night of September 4-5, 2020,
calling for racial justice and reformed policing in the wake of Daniel Prude’s death. ECF No. 1-2
¶ 19. That night, Individual Officers escorted peaceful protestors onto the Court Street Bridge. Id.
¶ 25. 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
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enforcement ordered the protestors to disperse. Id. ¶ 27. But because the protestors were trapped
on the bridge, there was nowhere to go. Id. Within seconds of the dispersal order, law enforcement
began “indiscriminately” firing pepper balls, pepper spray, and tear gas at the protestors. Id. ¶¶
24-32. Plaintiff was hit with at least seven pepper balls. Id. ¶ 41. Plaintiff inhaled “large amounts
of tear gas and/or other chemical weapons,” sustaining “irritation to her skin, eyes, mouth, nose[,]
and lungs[,] and menstrual irregularities.” Id. ¶¶ 32-33, 39. Plaintiff alleges that her exposure to
these chemical weapons has “caused her and her husband to be unsuccessful in trying to get
pregnant for over a year after the incident,” all despite Defendants’ knowledge that the use of such
weapons could lead to such side effects. Id. ¶¶ 40, 42-46. She has also suffered “terror, trauma[,]
and emotional and psychological harm from being attacked by the RPD officers and Sheriff’s
Deputies.” Id. ¶ 41.
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
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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.
DISCUSSION
I. First and Second Claims: Municipal Liability Pursuant to Monell
In his first and second claims, Plaintiff seeks to hold the City, the County, and Baxter liable
for First and Fourth Amendment violations under Monell v. Dep’t Soc. Servs., 436 U.S. 658, 693
(1978). In essence, Plaintiff asserts that the individual officers who caused his injuries were acting
in accordance with the City’s and County’s unconstitutional customs or policies relating to the use
of force during peaceful protests. Defendants, for their part, argue that Plaintiff has not adequately
pled such a custom or policy. For the reasons explained below, the Court disagrees with
Defendants and permits the Monell claims to proceed.
A. Legal Standard
“[A] local government is liable under § 1983 for its policies that cause constitutional torts.”
McMillian v. Monroe Cnty., Alabama, 520 U.S. 781, 784 (1997); see Monell, 436 U.S. at 693. A
plaintiff who seeks to impose liability on local governments pursuant to 42 U.S.C. § 1983 must
demonstrate that “action pursuant to official municipal policy” caused the injury. Monell, 436
U.S. at 692. “Official municipal policy includes the decisions of a government’s lawmakers, the
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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) (citing Monell, 436 U.S. at 691)
(additional citations omitted). A plaintiff may demonstrate a policy or custom exists by showing:
(1) a formal policy officially endorsed by the municipality; (2)
actions taken by government officials responsible for establishing
the municipal policies that caused the particular deprivation in
question; (3) a practice so consistent and widespread that, although
not expressly authorized, constitutes a custom or usage of which a
supervising policy-maker must have been aware; or (4) a failure by
policymakers to provide adequate training or supervision to
subordinates to such an extent that it amounts to deliberate
indifference to the rights of those who come into contact with the
municipal employees.
Jones v. Westchester Cnty., 182 F. Supp. 3d 134, 158 (S.D.N.Y. 2016) (quoting Brandon v. City
of New York, 705 F. Supp. 2d 261, 276-77 (S.D.N.Y. 2010)).
“Although there is no heightened pleading requirement for complaints alleging municipal
liability under § 1983, . . . a complaint does not suffice if it tenders naked assertions devoid of
further factual enhancement.” Green v. City of Mount Vernon, 96 F. Supp. 3d 263, 301-02
(S.D.N.Y. 2015) (internal quotation marks and brackets omitted). “To survive a motion to dismiss
a municipal liability claim, a plaintiff must allege facts tending to support, at least circumstantially,
an inference that a municipal policy or custom exists.” McLennon v. City of New York, 171 F.
Supp. 3d 69, 95 (S.D.N.Y. 2016) (internal quotation marks and ellipsis omitted); see also Cruz v.
Vill. of Spring Valley, No. 21-CV-2073, 2022 WL 428247, at *6 (S.D.N.Y. Feb. 11, 2022)
(collecting cases). Put simply, to allege “there is a policy does not make it so.” Vassallo v. City
of New York, No. 15-CV-7125, 2016 WL 6902478, at *14 (S.D.N.Y. Nov. 22, 2016) (internal
quotation marks omitted); see also Cruz, 2022 WL 428247, at *6 (“Plaintiff cannot, through
conclusory allegations, merely assert the existence of a municipal policy or custom, but must allege
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facts tending to support, at least circumstantially, an inference that such a municipal policy or
custom exists.” (internal quotation marks omitted)).
B. First Claim: Municipal Liability Against the City
Plaintiff has adequately pled a Monell claim against the City. At the outset, the City’s
argument that Plaintiff has not pled any underlying First or Fourth Amendment constitutional
violations is without merit. The City is correct that Monell does not provide a separate cause of
action absent an underlying constitutional violation. See Segal v. City of New York, 459 F.3d 207,
219 (2d Cir. 2006) (“Monell does not provide a separate cause of action for the failure by the
government to train its employees; it extends liability to a municipal organization where that
organization’s failure to train, or the policies or customs that it has sanctioned, led to an
independent constitutional violation.” (emphasis in original)). But, as explained more fully below,
Plaintiff has pled adequate First and Fourth Amendment violations: that the City’s response to the
protests was based on its objection to the message the protestors were expressing, and that the
City’s actions or inactions led to excessive force being used against protestors. 3 ECF No. 1-2 ¶
49.
The City’s arguments regarding Plaintiff’s theories of Monell liability do not fare
better. The City argues that Plaintiff’s statement that the City “approved the force during the
demonstrations because its policies authorized excessive levels of force,” ECF No. 8 ¶ 67, is
conclusory. But the City’s argument is itself conclusory. It ignores that the Amended Complaint
contains additional facts bolstering that allegation. For instance, Plaintiff alleges that the City
3
The City’s contention that Plaintiff has failed to adequately plead an underlying Fourteenth Amendment violation is
without merit. The Court does not read Plaintiff’s Amended Complaint to raise an independent claim arising under
the Fourteenth Amendment. Rather, Plaintiff cites the Fourteenth Amendment in accordance with the well-established
rule that the Fourteenth Amendment is the vehicle through which the First and Fourth Amendments apply against the
states.See Cantwell v. Connecticut, 310 U.S. 296 (U.S. 1940) (incorporating the First Amendment against the states);
Camara v. Mun. Ct. of City & Cnty. of San Francisco, 387 U.S. 523, 528(1967) (incorporating the Fourth Amendment
against the states).
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knew that large-scale protests focused on police misconduct and racism would result from the
eventual release of the body-worn camera footage, id. ¶ 47, the City believed that the protests
would be led by outside influencers who would use peaceful protestors to shield themselves from
police action, id. ¶¶ 48-49, and therefore, the City developed a protest response plan that targeted
peaceful protestors based on an objection to their message and employed “extreme violence”
through the use of military-grade and chemical weapons, id. ¶ 50, to quash the protests. These
factual allegations, assumed to be true at this juncture, are not conclusory.
Nor are Plaintiff’s allegations surrounding the City’s custom of using excessive force
against protestors or its failure to train officers to appropriately respond to such protests. Plaintiff
alleges that the City’s response to at least three previous protests, in which the police used
excessive force against peaceful protestors, 4 establishes that the City had a custom of utilizing such
force and that the City knew of its training deficiencies but failed to change them. Id. ¶¶ 62-63.
Plaintiff also alleged that the City’s Mobile Field Force (“MFF”)—which was “specially
trained and equipped” to provide “rapid, organized and disciplined response to civil disorder [and]
crowd control,” id. ¶ 54—was militarized and filled with police officers who had histories of using
excessive force, id. ¶ 61, and was not actually or adequately trained to appropriately respond to
protests, only “large-scale civil disorders such as riots,” id. ¶¶ 58-59. This, in turn, led to the
disproportionate use of force against peaceful protestors. Id. ¶ 60. Again, these allegations are far
from the sort of conclusory statements that require dismissal. Therefore, the City’s motion to
dismiss the first claim for Monell liability is denied.
4
The City argues that “neither tear gas nor pepper balls were used in October 2009 or June 2016 protests,” and
therefore neither can form the basis of the City’s knowledge of the use of excessive force.ECF No. 3-2 at 7. But the
Amended Complaint indicates that “pepper spray[]” was used to quash protests in May 2015. ECF No. 1-2 ¶ 62. In
any event, taken together, Plaintiff’s allegations regarding the various prior uses of excessive force are sufficient to
state a claim at this point.
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C. Second Claim: Municipal Liability Against the County and Baxter
The allegations against the County and Baxter largely mirror those Plaintiff asserted
against the City. And, for many of the same reasons, the County and Baxter move to dismiss those
claims asserted against them. However, for the same reasons explained above with respect to the
City, the County and Baxter’s motion to dismiss the municipal liability claim is denied.
The County and Baxter also take issue with Plaintiff’s reference in the Amended Complaint
to the County’s “Hazard Mitigation Plan,” under which the County trained Sheriff’s deputies to
use force for both “peaceful demonstrations or acts of violence.” ECF No. 1-2 ¶ 76. The County
and Baxter argue that this Hazard Mitigation Plan is intended to “reduce the potential impact of
natural hazards” and therefore “clearly has nothing to do with training for Sheriff’s deputies for
responding to a protest.” ECF No. 11-3 at 10. However, the County and Baxter ignore the crux
of Plaintiff’s other allegations, which, like those against the City, detail unconstitutional municipal
policies, practices, and training failures.
For example, Plaintiff alleges that Baxter and the County subscribed to theory that Black
Lives Matter protests were led by outside agitators, ECF No. 1-2 ¶ 70, that violent protestors would
use nonviolent protestors as human shields, id. ¶ 71, that the County and Baxter coordinated with
the City and RPD to develop a coordinated protest response plan that included using
disproportionate violence centered on retaliation for the message the protestors were expressing,
id. ¶ 72, and that Baxter and the County failed to train Sheriff’s deputies to meaningfully
differentiate between peaceful protestors and violent ones, id. ¶¶ 73-76. These allegations
plausibly allege an unconstitutional custom or practice.
Unlike Plaintiff’s allegations against the City, the Amended Complaint does not contain
specific allegations of prior instances in which the Sheriff’s Office used excessive force against
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protestors. The County and Baxter argue that the absence of such allegations demonstrates that
neither could have had knowledge that any problems were widespread. However, Plaintiff does
allege that prior to the protests which are the subject of this lawsuit, County legislators called on
the Sheriff’s Office to implement new training protocols to correct its deficient practices. Id. ¶ 85.
Although this is a close call, the Court determines at this early stage that such factual allegations
are sufficient to survive the motion to dismiss.
II. Third Claim: Excessive Force
Only the County Defendants move against Plaintiff’s excessive force claim, which was
asserted against all Defendants.
To the extent Plaintiff asserts her excessive force claim against Baxter, that claim will not
be dismissed. “A supervisory defendant must have been personally involved in a constitutional
deprivation to be held liable under § 1983.” Bryant v. Ciminelli, 267 F. Supp. 3d 467, 475
(W.D.N.Y. 2017). The Amended Complaint contains no allegations that Baxter personally used
excessive force on Plaintiff. However, as explained below, Plaintiff alleges that unknown
Sheriff’s deputies used excessive force against her in the form of chemical weapons. The Second
Circuit has recognized “the appropriateness of maintaining supervisory personnel as defendants in
lawsuits stating a colorable claim until the plaintiff has been afforded an opportunity through at
least brief discovery to identify the subordinate officials who have personal liability.” Davis v.
Kelly, 160 F.3d 917, 921 (2d Cir. 1998). Accordingly, the Court will not dismiss Baxter from the
case until Plaintiff has an opportunity to conduct discovery as to the identities of the Sheriff’s
deputies. Once such discovery reveals the identifies of the Sheriff’s deputies, Baxter may again
move to dismiss. Murphy v. Goord, 445 F. Supp. 2d 261 (W.D.N.Y. 2006) (denying supervisor’s
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motion to dismiss so that plaintiff could conduct discovery to ascertain identity of John Doe
defendants).
The remaining County Defendants argue that the claims against individual, unnamed
sheriffs 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
No. 11-3 at 14-15.
First, the County Defendants 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 any County Defendant used excessive force against Plaintiff during his
arrest. ECF No. 11-3 at 14-15; see Jones v. Parmley, 465 F.3d 46, 61 (2d Cir. 2006).
But, at this stage, Plaintiff has adequately alleged that unknown Sheriff’s Deputies used
“less-than-lethal” military-grade weapons and chemical weapons against her, causing
psychological and bodily injuries and damaging her reproductive system. ECF No. 1-2 ¶ 99-102.
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.”).
The County Defendants argue that Plaintiff tacked on allegations of Sheriff’s Deputies
using excessive force in an attempt to draw unnamed law enforcement officers into the
allegations. 5 ECF No. 8 at 15. 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
5
The County Defendants repeat this same argument as a reason to dismiss each claim. For the same reasons outlined
below with respect to the excessive force claim, the Court finds this argument unpersuasive as a basis to dismiss the
remaining claims.
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[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, she claims that unknown Sherriff’s Deputies used chemical weapons on her
during the protest, prior to her arrest. 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.
III. Fourth Claim: Assault & Battery
The County Defendants move to dismiss the Fourth Claim for assault and battery for the
same reasons they move to dismiss the Third 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 County Defendants’ motion to dismiss the Fourth Claim for assault and battery is
denied.
IV. Fifth Claim: First Amendment Infringement & Retaliation
The Amended Complaint advances three theories of First Amendment liability: (a) that
Defendants “retaliated against Plaintiff for engaging in speech and/or conduct protected by the
First Amendment;” (b) that Defendants “discriminated against Plaintiff based on the viewpoint
that she and other protestors were expressing;” and (c) 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
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rights.” 6 ECF No. 1-2 ¶ 117. These three theories can be collapsed into two, and each is addressed
below. The City Defendants do not move against this claim, but the County Defendants do.
A. Retaliation
“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
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).
Defendants do not seriously contest the first two elements, focusing instead on the third.
To that end, the County Defendants argue that Plaintiff has not established any constitutional injury
because Plaintiff has not alleged any “specific instances in which [Plaintiff] desired to exercise
[her] First Amendment rights but [were] chilled by” Defendants’ conduct. ECF No. 11-3 at 18-
19.
However, the Amended Complaint states that Plaintiff “was prevented from further
protesting on the night of September 4-5, 2020 as a result of being attacked with chemical
weapons” and that she was “chilled and deterred him from engaging in future protests, for fear of
being subjected to similar unlawful actions by law enforcement.” ECF No. 1-2 ¶ 134.
B. Viewpoint Discrimination
Government “[d]iscrimination against speech because of its message is presumed to be
unconstitutional.” Rosenberger v. Rector & Visitors of Univ. of Va., 515 U.S. 819, 828 (1995).
“Viewpoint discrimination is a subset or particular instance of the more general phenomenon of
content discrimination, in which the government targets not subject matter but particular views
taken by speakers on a subject.” Make the Rd. by Walking, Inc. v. Turner, 378 F.3d 133, 150 (2d
6
It is unclear whether these two theories are distinct.
But, because the parties treat them differently, the Court will
address them separately.
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Cir. 2004) (quoting another source). The government discriminates against viewpoints when it
disfavors certain speech because of “the specific motivating ideology or the opinion or perspective
of the speaker.” Rosenberger, 515 U.S. at 829.
Plaintiff alleges that Defendants’ response to the protestors and use of excessive force
against them was motivated by the viewpoint the protestors espoused: “calling for greater police
accountability, a reallocation of funding away from police departments and into Black and Latinx
communities, the end of police brutality, and a recognition that Black Lives Matter.” ECF No. 1-
2 ¶ 123.
As this stage, at least, Plaintiff’s First Amendment claims may proceed.
V. Sixth Claim: Failure to Intervene – Individual Officers
“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 Officers argue first that Plaintiff has failed to plead the second element—that
they knew that Plaintiff’s constitutional rights were being violated. ECF No. 3-2 at 8-9. 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 Officers were in close proximity to the alleged constitutional v
Preview
FILED: MONROE COUNTY CLERK 07/26/2022 06:47 AM INDEX NO. E2021008190 NYSCEF DOC. NO. 38 RECEIVED NYSCEF: 07/26/2022 MONROE COUNTY CLERK’S OFFICE THIS IS NOT A BILL. THIS IS YOUR RECEIPT. Receipt # 3146654 Book Page CIVIL Return To: No. Pages: 23 ELLIOT DOLBY-SHIELDS 192 Lexington Avenue, Suite 802 Instrument: EXHIBIT(S) New York, NY 10016 Control #: 202207260709 Index #: E2021008190 Date: 07/26/2022 ADAMIDES, KATHERINE Time: 11:50:08 AM ADAMS, TYRUS ASA ALLMAN, JOE BEADLE, ALAN BRALEY, KENNETH Baxter, Todd ROCHESTER CITY OF 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 202207260709 Index # INDEX : E2021008190 NO. E2021008190 FILED: MONROE COUNTY CLERK 07/26/2022 06:47 AM NYSCEF DOC. NO. 38Case 6:22-cv-06062-FPG Document 16 Filed 06/30/22 Page 1 of 22NYSCEF: RECEIVED 07/26/2022 UNITED STATES DISTRICT COURT WESTERN DISTRICT OF NEW YORK KAITLIN FLANNERY, Plaintiff, Case # 22-CV-6062-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 Kaitlin Flannery—a protester who alleges she was injured during the protests—filed this action in state court against the City of Rochester (“City”), Rochester Police Department (“RPD”) 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. In response to motions to dismiss filed in state court, Plaintiff filed an Amended Complaint on January 12, 2022. ECF No. 1-2. 2 The County removed the case to federal court on February 8, 2022. ECF No. 1. 1 John Doe police officers (“the RPD Officers”) and the City are collectively referred to as “City Defendants.” The County, Baxter, and Richard Roe Sheriff’s deputies are collectively referred to as “County Defendants.” The RPD Officers and Sheriff’s deputies are collectively referred to as “Individual Officers.”All defendants are collectively referred to as “Defendants.” 2 The Amended Complaint was filed as an attachment to the County Defendants’ notice of removal as Exhibit 2. That exhibit contains 125 pages of pleadings and other documents. The Amended Complaint begins at page 91 of ECF No. 1-2 and ends at page 124. For ease of reference, the Court will cite to the Amended Complaint as “ECF No. 1- 2.” 1 202207260709 IndexNO. INDEX #: E2021008190 E2021008190 FILED: MONROE COUNTY CLERK 07/26/2022 06:47 AM NYSCEF DOC. NO. 38Case 6:22-cv-06062-FPG Document 16 Filed 06/30/22 Page 2 of 22NYSCEF: RECEIVED 07/26/2022 In the Amended Complaint, Plaintiff raises 11 claims: (1) municipal/Monell liability against the City for alleged violations of the First, Fourth, and Fourteenth Amendments, pursuant to 42 U.S.C. § 1983; (2) municipal/Monell liability against the County and Baxter for alleged violations of the First, Fourth, and Fourteenth Amendments, pursuant to § 1983; (3) excessive force against all Defendants, pursuant to § 1983; (4) assault and battery against all Defendants, pursuant to New York State law; (5) First Amendment infringement and retaliation against all Defendants, pursuant to § 1983; (6) failure to intervene against all Defendants, pursuant to § 1983; (7) negligent training, supervision, and discipline against Baxter, pursuant to New York State law; (8) negligent planning of the protest response against Baxter, pursuant to New York State law; (9) negligent training, supervision, and discipline against the City, pursuant to New York State law; (10) negligent planning of the protest response against the City, pursuant to New York State law; and (11) negligence against the individual officers, pursuant to New York State law. On February 8, 2022, the City Defendants filed a motion to dismiss all claims asserted against them in the Amended Complaint except the claims for excessive force, assault and battery, and First Amendment violations. ECF No. 3. On March 31, 2022, the County Defendants filed a motion to dismiss all of the claims asserted against them. ECF No. 11. The motions are now fully briefed. FACTUAL BACKGROUND Plaintiff participated in large public demonstrations on the night of September 4-5, 2020, calling for racial justice and reformed policing in the wake of Daniel Prude’s death. ECF No. 1-2 ¶ 19. That night, Individual Officers escorted peaceful protestors onto the Court Street Bridge. Id. ¶ 25. 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 2 202207260709 IndexNO. INDEX #: E2021008190 E2021008190 FILED: MONROE COUNTY CLERK 07/26/2022 06:47 AM NYSCEF DOC. NO. 38Case 6:22-cv-06062-FPG Document 16 Filed 06/30/22 Page 3 of 22NYSCEF: RECEIVED 07/26/2022 enforcement ordered the protestors to disperse. Id. ¶ 27. But because the protestors were trapped on the bridge, there was nowhere to go. Id. Within seconds of the dispersal order, law enforcement began “indiscriminately” firing pepper balls, pepper spray, and tear gas at the protestors. Id. ¶¶ 24-32. Plaintiff was hit with at least seven pepper balls. Id. ¶ 41. Plaintiff inhaled “large amounts of tear gas and/or other chemical weapons,” sustaining “irritation to her skin, eyes, mouth, nose[,] and lungs[,] and menstrual irregularities.” Id. ¶¶ 32-33, 39. Plaintiff alleges that her exposure to these chemical weapons has “caused her and her husband to be unsuccessful in trying to get pregnant for over a year after the incident,” all despite Defendants’ knowledge that the use of such weapons could lead to such side effects. Id. ¶¶ 40, 42-46. She has also suffered “terror, trauma[,] and emotional and psychological harm from being attacked by the RPD officers and Sheriff’s Deputies.” Id. ¶ 41. 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 3 202207260709 IndexNO. INDEX #: E2021008190 E2021008190 FILED: MONROE COUNTY CLERK 07/26/2022 06:47 AM NYSCEF DOC. NO. 38Case 6:22-cv-06062-FPG Document 16 Filed 06/30/22 Page 4 of 22NYSCEF: RECEIVED 07/26/2022 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. DISCUSSION I. First and Second Claims: Municipal Liability Pursuant to Monell In his first and second claims, Plaintiff seeks to hold the City, the County, and Baxter liable for First and Fourth Amendment violations under Monell v. Dep’t Soc. Servs., 436 U.S. 658, 693 (1978). In essence, Plaintiff asserts that the individual officers who caused his injuries were acting in accordance with the City’s and County’s unconstitutional customs or policies relating to the use of force during peaceful protests. Defendants, for their part, argue that Plaintiff has not adequately pled such a custom or policy. For the reasons explained below, the Court disagrees with Defendants and permits the Monell claims to proceed. A. Legal Standard “[A] local government is liable under § 1983 for its policies that cause constitutional torts.” McMillian v. Monroe Cnty., Alabama, 520 U.S. 781, 784 (1997); see Monell, 436 U.S. at 693. A plaintiff who seeks to impose liability on local governments pursuant to 42 U.S.C. § 1983 must demonstrate that “action pursuant to official municipal policy” caused the injury. Monell, 436 U.S. at 692. “Official municipal policy includes the decisions of a government’s lawmakers, the 4 202207260709 IndexNO. INDEX #: E2021008190 E2021008190 FILED: MONROE COUNTY CLERK 07/26/2022 06:47 AM NYSCEF DOC. NO. 38Case 6:22-cv-06062-FPG Document 16 Filed 06/30/22 Page 5 of 22NYSCEF: RECEIVED 07/26/2022 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) (citing Monell, 436 U.S. at 691) (additional citations omitted). A plaintiff may demonstrate a policy or custom exists by showing: (1) a formal policy officially endorsed by the municipality; (2) actions taken by government officials responsible for establishing the municipal policies that caused the particular deprivation in question; (3) a practice so consistent and widespread that, although not expressly authorized, constitutes a custom or usage of which a supervising policy-maker must have been aware; or (4) a failure by policymakers to provide adequate training or supervision to subordinates to such an extent that it amounts to deliberate indifference to the rights of those who come into contact with the municipal employees. Jones v. Westchester Cnty., 182 F. Supp. 3d 134, 158 (S.D.N.Y. 2016) (quoting Brandon v. City of New York, 705 F. Supp. 2d 261, 276-77 (S.D.N.Y. 2010)). “Although there is no heightened pleading requirement for complaints alleging municipal liability under § 1983, . . . a complaint does not suffice if it tenders naked assertions devoid of further factual enhancement.” Green v. City of Mount Vernon, 96 F. Supp. 3d 263, 301-02 (S.D.N.Y. 2015) (internal quotation marks and brackets omitted). “To survive a motion to dismiss a municipal liability claim, a plaintiff must allege facts tending to support, at least circumstantially, an inference that a municipal policy or custom exists.” McLennon v. City of New York, 171 F. Supp. 3d 69, 95 (S.D.N.Y. 2016) (internal quotation marks and ellipsis omitted); see also Cruz v. Vill. of Spring Valley, No. 21-CV-2073, 2022 WL 428247, at *6 (S.D.N.Y. Feb. 11, 2022) (collecting cases). Put simply, to allege “there is a policy does not make it so.” Vassallo v. City of New York, No. 15-CV-7125, 2016 WL 6902478, at *14 (S.D.N.Y. Nov. 22, 2016) (internal quotation marks omitted); see also Cruz, 2022 WL 428247, at *6 (“Plaintiff cannot, through conclusory allegations, merely assert the existence of a municipal policy or custom, but must allege 5 202207260709 IndexNO. INDEX #: E2021008190 E2021008190 FILED: MONROE COUNTY CLERK 07/26/2022 06:47 AM NYSCEF DOC. NO. 38Case 6:22-cv-06062-FPG Document 16 Filed 06/30/22 Page 6 of 22NYSCEF: RECEIVED 07/26/2022 facts tending to support, at least circumstantially, an inference that such a municipal policy or custom exists.” (internal quotation marks omitted)). B. First Claim: Municipal Liability Against the City Plaintiff has adequately pled a Monell claim against the City. At the outset, the City’s argument that Plaintiff has not pled any underlying First or Fourth Amendment constitutional violations is without merit. The City is correct that Monell does not provide a separate cause of action absent an underlying constitutional violation. See Segal v. City of New York, 459 F.3d 207, 219 (2d Cir. 2006) (“Monell does not provide a separate cause of action for the failure by the government to train its employees; it extends liability to a municipal organization where that organization’s failure to train, or the policies or customs that it has sanctioned, led to an independent constitutional violation.” (emphasis in original)). But, as explained more fully below, Plaintiff has pled adequate First and Fourth Amendment violations: that the City’s response to the protests was based on its objection to the message the protestors were expressing, and that the City’s actions or inactions led to excessive force being used against protestors. 3 ECF No. 1-2 ¶ 49. The City’s arguments regarding Plaintiff’s theories of Monell liability do not fare better. The City argues that Plaintiff’s statement that the City “approved the force during the demonstrations because its policies authorized excessive levels of force,” ECF No. 8 ¶ 67, is conclusory. But the City’s argument is itself conclusory. It ignores that the Amended Complaint contains additional facts bolstering that allegation. For instance, Plaintiff alleges that the City 3 The City’s contention that Plaintiff has failed to adequately plead an underlying Fourteenth Amendment violation is without merit. The Court does not read Plaintiff’s Amended Complaint to raise an independent claim arising under the Fourteenth Amendment. Rather, Plaintiff cites the Fourteenth Amendment in accordance with the well-established rule that the Fourteenth Amendment is the vehicle through which the First and Fourth Amendments apply against the states.See Cantwell v. Connecticut, 310 U.S. 296 (U.S. 1940) (incorporating the First Amendment against the states); Camara v. Mun. Ct. of City & Cnty. of San Francisco, 387 U.S. 523, 528(1967) (incorporating the Fourth Amendment against the states). 6 202207260709 IndexNO. INDEX #: E2021008190 E2021008190 FILED: MONROE COUNTY CLERK 07/26/2022 06:47 AM NYSCEF DOC. NO. 38Case 6:22-cv-06062-FPG Document 16 Filed 06/30/22 Page 7 of 22NYSCEF: RECEIVED 07/26/2022 knew that large-scale protests focused on police misconduct and racism would result from the eventual release of the body-worn camera footage, id. ¶ 47, the City believed that the protests would be led by outside influencers who would use peaceful protestors to shield themselves from police action, id. ¶¶ 48-49, and therefore, the City developed a protest response plan that targeted peaceful protestors based on an objection to their message and employed “extreme violence” through the use of military-grade and chemical weapons, id. ¶ 50, to quash the protests. These factual allegations, assumed to be true at this juncture, are not conclusory. Nor are Plaintiff’s allegations surrounding the City’s custom of using excessive force against protestors or its failure to train officers to appropriately respond to such protests. Plaintiff alleges that the City’s response to at least three previous protests, in which the police used excessive force against peaceful protestors, 4 establishes that the City had a custom of utilizing such force and that the City knew of its training deficiencies but failed to change them. Id. ¶¶ 62-63. Plaintiff also alleged that the City’s Mobile Field Force (“MFF”)—which was “specially trained and equipped” to provide “rapid, organized and disciplined response to civil disorder [and] crowd control,” id. ¶ 54—was militarized and filled with police officers who had histories of using excessive force, id. ¶ 61, and was not actually or adequately trained to appropriately respond to protests, only “large-scale civil disorders such as riots,” id. ¶¶ 58-59. This, in turn, led to the disproportionate use of force against peaceful protestors. Id. ¶ 60. Again, these allegations are far from the sort of conclusory statements that require dismissal. Therefore, the City’s motion to dismiss the first claim for Monell liability is denied. 4 The City argues that “neither tear gas nor pepper balls were used in October 2009 or June 2016 protests,” and therefore neither can form the basis of the City’s knowledge of the use of excessive force.ECF No. 3-2 at 7. But the Amended Complaint indicates that “pepper spray[]” was used to quash protests in May 2015. ECF No. 1-2 ¶ 62. In any event, taken together, Plaintiff’s allegations regarding the various prior uses of excessive force are sufficient to state a claim at this point. 7 202207260709 IndexNO. INDEX #: E2021008190 E2021008190 FILED: MONROE COUNTY CLERK 07/26/2022 06:47 AM NYSCEF DOC. NO. 38Case 6:22-cv-06062-FPG Document 16 Filed 06/30/22 Page 8 of 22NYSCEF: RECEIVED 07/26/2022 C. Second Claim: Municipal Liability Against the County and Baxter The allegations against the County and Baxter largely mirror those Plaintiff asserted against the City. And, for many of the same reasons, the County and Baxter move to dismiss those claims asserted against them. However, for the same reasons explained above with respect to the City, the County and Baxter’s motion to dismiss the municipal liability claim is denied. The County and Baxter also take issue with Plaintiff’s reference in the Amended Complaint to the County’s “Hazard Mitigation Plan,” under which the County trained Sheriff’s deputies to use force for both “peaceful demonstrations or acts of violence.” ECF No. 1-2 ¶ 76. The County and Baxter argue that this Hazard Mitigation Plan is intended to “reduce the potential impact of natural hazards” and therefore “clearly has nothing to do with training for Sheriff’s deputies for responding to a protest.” ECF No. 11-3 at 10. However, the County and Baxter ignore the crux of Plaintiff’s other allegations, which, like those against the City, detail unconstitutional municipal policies, practices, and training failures. For example, Plaintiff alleges that Baxter and the County subscribed to theory that Black Lives Matter protests were led by outside agitators, ECF No. 1-2 ¶ 70, that violent protestors would use nonviolent protestors as human shields, id. ¶ 71, that the County and Baxter coordinated with the City and RPD to develop a coordinated protest response plan that included using disproportionate violence centered on retaliation for the message the protestors were expressing, id. ¶ 72, and that Baxter and the County failed to train Sheriff’s deputies to meaningfully differentiate between peaceful protestors and violent ones, id. ¶¶ 73-76. These allegations plausibly allege an unconstitutional custom or practice. Unlike Plaintiff’s allegations against the City, the Amended Complaint does not contain specific allegations of prior instances in which the Sheriff’s Office used excessive force against 8 202207260709 IndexNO. INDEX #: E2021008190 E2021008190 FILED: MONROE COUNTY CLERK 07/26/2022 06:47 AM NYSCEF DOC. NO. 38Case 6:22-cv-06062-FPG Document 16 Filed 06/30/22 Page 9 of 22NYSCEF: RECEIVED 07/26/2022 protestors. The County and Baxter argue that the absence of such allegations demonstrates that neither could have had knowledge that any problems were widespread. However, Plaintiff does allege that prior to the protests which are the subject of this lawsuit, County legislators called on the Sheriff’s Office to implement new training protocols to correct its deficient practices. Id. ¶ 85. Although this is a close call, the Court determines at this early stage that such factual allegations are sufficient to survive the motion to dismiss. II. Third Claim: Excessive Force Only the County Defendants move against Plaintiff’s excessive force claim, which was asserted against all Defendants. To the extent Plaintiff asserts her excessive force claim against Baxter, that claim will not be dismissed. “A supervisory defendant must have been personally involved in a constitutional deprivation to be held liable under § 1983.” Bryant v. Ciminelli, 267 F. Supp. 3d 467, 475 (W.D.N.Y. 2017). The Amended Complaint contains no allegations that Baxter personally used excessive force on Plaintiff. However, as explained below, Plaintiff alleges that unknown Sheriff’s deputies used excessive force against her in the form of chemical weapons. The Second Circuit has recognized “the appropriateness of maintaining supervisory personnel as defendants in lawsuits stating a colorable claim until the plaintiff has been afforded an opportunity through at least brief discovery to identify the subordinate officials who have personal liability.” Davis v. Kelly, 160 F.3d 917, 921 (2d Cir. 1998). Accordingly, the Court will not dismiss Baxter from the case until Plaintiff has an opportunity to conduct discovery as to the identities of the Sheriff’s deputies. Once such discovery reveals the identifies of the Sheriff’s deputies, Baxter may again move to dismiss. Murphy v. Goord, 445 F. Supp. 2d 261 (W.D.N.Y. 2006) (denying supervisor’s 9 202207260709 IndexNO. INDEX #: E2021008190 E2021008190 FILED: MONROE COUNTY CLERK 07/26/2022 06:47 AM NYSCEF DOC. NO. Case 6:22-cv-06062-FPG 38 Document 16 Filed 06/30/22 Page 10 of 22 RECEIVED NYSCEF: 07/26/2022 motion to dismiss so that plaintiff could conduct discovery to ascertain identity of John Doe defendants). The remaining County Defendants argue that the claims against individual, unnamed sheriffs 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 No. 11-3 at 14-15. First, the County Defendants 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 any County Defendant used excessive force against Plaintiff during his arrest. ECF No. 11-3 at 14-15; see Jones v. Parmley, 465 F.3d 46, 61 (2d Cir. 2006). But, at this stage, Plaintiff has adequately alleged that unknown Sheriff’s Deputies used “less-than-lethal” military-grade weapons and chemical weapons against her, causing psychological and bodily injuries and damaging her reproductive system. ECF No. 1-2 ¶ 99-102. 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.”). The County Defendants argue that Plaintiff tacked on allegations of Sheriff’s Deputies using excessive force in an attempt to draw unnamed law enforcement officers into the allegations. 5 ECF No. 8 at 15. 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 5 The County Defendants repeat this same argument as a reason to dismiss each claim. For the same reasons outlined below with respect to the excessive force claim, the Court finds this argument unpersuasive as a basis to dismiss the remaining claims. 10 202207260709 IndexNO. INDEX #: E2021008190 E2021008190 FILED: MONROE COUNTY CLERK 07/26/2022 06:47 AM NYSCEF DOC. NO. Case 6:22-cv-06062-FPG 38 Document 16 Filed 06/30/22 Page 11 of 22 RECEIVED NYSCEF: 07/26/2022 [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, she claims that unknown Sherriff’s Deputies used chemical weapons on her during the protest, prior to her arrest. 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. III. Fourth Claim: Assault & Battery The County Defendants move to dismiss the Fourth Claim for assault and battery for the same reasons they move to dismiss the Third 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 County Defendants’ motion to dismiss the Fourth Claim for assault and battery is denied. IV. Fifth Claim: First Amendment Infringement & Retaliation The Amended Complaint advances three theories of First Amendment liability: (a) that Defendants “retaliated against Plaintiff for engaging in speech and/or conduct protected by the First Amendment;” (b) that Defendants “discriminated against Plaintiff based on the viewpoint that she and other protestors were expressing;” and (c) 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 11 202207260709 IndexNO. INDEX #: E2021008190 E2021008190 FILED: MONROE COUNTY CLERK 07/26/2022 06:47 AM NYSCEF DOC. NO. Case 6:22-cv-06062-FPG 38 Document 16 Filed 06/30/22 Page 12 of 22 RECEIVED NYSCEF: 07/26/2022 rights.” 6 ECF No. 1-2 ¶ 117. These three theories can be collapsed into two, and each is addressed below. The City Defendants do not move against this claim, but the County Defendants do. A. Retaliation “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 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). Defendants do not seriously contest the first two elements, focusing instead on the third. To that end, the County Defendants argue that Plaintiff has not established any constitutional injury because Plaintiff has not alleged any “specific instances in which [Plaintiff] desired to exercise [her] First Amendment rights but [were] chilled by” Defendants’ conduct. ECF No. 11-3 at 18- 19. However, the Amended Complaint states that Plaintiff “was prevented from further protesting on the night of September 4-5, 2020 as a result of being attacked with chemical weapons” and that she was “chilled and deterred him from engaging in future protests, for fear of being subjected to similar unlawful actions by law enforcement.” ECF No. 1-2 ¶ 134. B. Viewpoint Discrimination Government “[d]iscrimination against speech because of its message is presumed to be unconstitutional.” Rosenberger v. Rector & Visitors of Univ. of Va., 515 U.S. 819, 828 (1995). “Viewpoint discrimination is a subset or particular instance of the more general phenomenon of content discrimination, in which the government targets not subject matter but particular views taken by speakers on a subject.” Make the Rd. by Walking, Inc. v. Turner, 378 F.3d 133, 150 (2d 6 It is unclear whether these two theories are distinct. But, because the parties treat them differently, the Court will address them separately. 12 202207260709 IndexNO. INDEX #: E2021008190 E2021008190 FILED: MONROE COUNTY CLERK 07/26/2022 06:47 AM NYSCEF DOC. NO. Case 6:22-cv-06062-FPG 38 Document 16 Filed 06/30/22 Page 13 of 22 RECEIVED NYSCEF: 07/26/2022 Cir. 2004) (quoting another source). The government discriminates against viewpoints when it disfavors certain speech because of “the specific motivating ideology or the opinion or perspective of the speaker.” Rosenberger, 515 U.S. at 829. Plaintiff alleges that Defendants’ response to the protestors and use of excessive force against them was motivated by the viewpoint the protestors espoused: “calling for greater police accountability, a reallocation of funding away from police departments and into Black and Latinx communities, the end of police brutality, and a recognition that Black Lives Matter.” ECF No. 1- 2 ¶ 123. As this stage, at least, Plaintiff’s First Amendment claims may proceed. V. Sixth Claim: Failure to Intervene – Individual Officers “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 Officers argue first that Plaintiff has failed to plead the second element—that they knew that Plaintiff’s constitutional rights were being violated. ECF No. 3-2 at 8-9. 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 Officers were in close proximity to the alleged constitutional v