Case 1:22-cv-03251-DG-PK Document 72 Filed 01/05/23 Page 1 of 24 PageID #: 685

22 Civ. 3251 (DG)(PK)

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF NEW YORK

GEORGE BELL,

Plaintiff,

-against-

THE CITY OF NEW YORK,

Defendants.

MEMORANDUM OF LAW IN SUPPORT OF

DEFENDANTS’ MOTION TO DISMISS

HON. SYLVIA O. HINDS-RADIX

Corporation Counsel of the City of New York
Attorneys for Defendants City of New York, Louis Pia,
Richard Sica, William Nevins and Paul Heider
100 Church Street, Room 3-133B
New York, New York 10007

Of Counsel: Mark D. Zuckerman

Tel: (212) 356-3519
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TABLE OF CONTENTS

Page

TABLE OF AUTHORITIES ...................................................................................................... ii

PRELIMINARY STATEMENT .................................................................................................1

LEGAL STANDARD .................................................................................................................1

ARGUMENT

POINT I

PLAINTIFF’S MALICIOUS PROSECUTION

CLAIMS SHOULD BE DISMISSED.......................................................3

POINT II

PLAINTIFF’S DENIAL OF FAIR TRIAL CLAIMS

AGAINST THE DEFENDANTS NEVINS AND
HEIDER SHOULD BE DISMISSED .......................................................7

A. William Nevins .................................................................................7

B. Paul Heider ........................................................................................8

POINT III

PLAINTIFF’S MUNICIPAL LIABILITY CLAIMS

SHOULD BE DISMISSED ......................................................................9

A. Custom or Practice of Not Sharing Brady

Material Within the QCDA ..............................................................11

B. Failure to Train or Discipline ...........................................................14

CONCLUSION .........................................................................................................................18
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TABLE OF AUTHORITIES

Cases Pages

Amnesty Am. v. Town of W. Hartford,

361 F.3d 113 (2d Cir. 2004) .......................................................................................... 12, 16

An v. City of New York,

230 F. Supp.3d 224 (S.D.N.Y. 2017) ............................................................................. 12, 16

Aquino v. City of New York,

16 Civ. 1577 (GHW),
2017 U.S. Dist. LEXIS 10436 (S.D.N.Y. Jan. 25, 2017) ........................................................ 9

Ashcroft v. Iqbal,
556 U.S. 662 (2008) ...................................................................................................... 1, 2, 7

Bell Atlantic Corp. v. Twombly,

550 U.S. 544 (2007) .......................................................................................................... 1, 2

Broder v. Cablevision Sys. Corp.,

418 F.3d 187 (2d Cir. 2005) .................................................................................................. 3

Buari v. City of New York,

530 F. Supp.3d 356 (S.D.N.Y. 2021) ................................................................................... 12

Calderon v. City of New York,

138 F. Supp.3d 593 (S.D.N.Y. 2015) ................................................................................... 12

Chambers v. Time Warner, Inc.,

282 F.3d 147 (2d Cir. 2002) .............................................................................................. 3, 5

City of Canton v. Harris,

489 U.S. 378 (1989) ...................................................................................................... 10, 16

City of St. Louis v. Praprotnik,

485 U.S. 112 (1985) ............................................................................................................ 11

Collins v. City of New York,

923 F. Supp.2d 462 (E.D.N.Y. 2013) ..............................................................................12-13

Colon v. City of New York,

60 N.Y.2d 78 (1983).............................................................................................................. 4

Connick v. Thompson,
563 U.S. 51 (2011) ........................................................................................................ 14, 15

ii
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Cases Pages

Davis v. City of New York,

12 Civ. 3297 (PGG), 2018 U.S. Dist. LEXIS 231116 (S.D.N.Y. Mar. 30,
2018) ................................................................................................................................... 15

Fappiano v. City of New York,

640 Fed. App’x 115 (2d Cir. 2016) (Summary Order) ........................................................... 7

Frederick v. New York City,

11 Civ. 469 (JPO),
2012 U.S. Dist. LEXIS 150223 (S.D.N.Y. Oct. 11, 2012) ...................................................... 4

Garcia v. Bloomberg,
662 Fed. App’x 50 (2d Cir. 2016) (Summary Order) ........................................................... 12

Garnett v. Undercover Officer C0039,

838 F.3d 265 (2d Cir. 2016) .................................................................................................. 7

Gaston v. Ruiz,
17 Civ. 1252 (NGG),
2018 U.S. Dist. LEXIS 112695 (E.D.N.Y. July 6, 2018)...................................................... 11

Green v. Montgomery,
219 F.3d 52 (2d Cir. 2000) .................................................................................................... 4

Hicks v. Marchman,
719 Fed. App’x 61 (2d Cir. 2018) (Summary Order) ............................................................. 8

Iqbal v. Hasty,
490 F.3d 143 (2d Cir. 2007) .................................................................................................. 2

Isaac v. City of New York,

16 Civ. 4729 (KAM) (RLM),
2018 U.S. Dist. LEXIS 132995 (E.D.N.Y. Aug. 6, 2018)
adopted by, Isaac v. City of New York,
16 Civ. 4729 (KAM)(RLM),
2018 U.S. Dist. LEXIS 163536 (E.D.N.Y. Sept. 24, 2018) .................................................. 12

Kramer v. Time Warner, Inc.,

937 F.2d 767 (2d Cir. 1991) ................................................................................................ 13

Kravtchouk v. City of New York, et. al.,

16 Civ. 4787 (RRM),
2019 U.S. Dist. LEXIS 173982 (E.D.N.Y. Sept. 30, 2019) ................................................ 2-3

Manganiello v. City of New York,

612 F.3d 149 (2d Cir. 2010) .................................................................................................. 3

iii
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Cases Pages

Mercado v. City of N.Y.,

08 CV 2855 (HP),
2011 U.S. Dist. LEXIS 140430 (S.D.N.Y. Dec. 5, 2011) ..................................................... 10

Miller v. County of Nassau,

467 F. Supp.2d 308 (E.D.N.Y. 2006) ................................................................................... 11

Monell v. Dep’t of Social Services,

436 U.S. 658 (1978) .................................................................................................. 9, 10, 11

Morris v. City of New York,

20 Civ. 9314 (GBD),
2021 U.S. Dist. LEXIS 186917 (S.D.N.Y. Sept. 29, 2021) .............................................10-11

Oklahoma City v. Tuttle,

471 U.S. 808 (1985) .................................................................................................. 9, 10, 14

Pembaur v. City of Cincinnati,

475 U.S. 469 (1986) ............................................................................................................ 10

Peterec v. City of New York,

14 Civ. 309 (RJS),
2015 U.S. Dist. LEXIS 28504 (S.D.N.Y. Mar. 6, 2015) ....................................................... 12

Rehberg v. Paulk,
566 U.S. 366 (2012) .......................................................................................................... 5, 9

Reynolds v. Giuliani,
506 F.3d 183 (2d Cir. 2007) .......................................................................................... 15, 16

Rodriguez v. City of New York,

16 Civ. 1649 (AMD)(RLM),
2022 U.S. Dist. LEXIS 104160 (E.D.N.Y. June 7, 2022) ................................................11-12

Rohman v. New York City Transit Auth.,

215 F.3d 208 (2d Cir. 2000) .................................................................................................. 5

Rothstein v. Carriere,
373 F.3d 275 (2d Cir. 2004) .................................................................................................. 4

S.B. v. City of New York,

14 Civ. 1021 (KAM),
2016 U.S. Dist. LEXIS 115881 (E.D.N.Y. Aug. 29, 2016) .................................................... 5

Savino v. City of New York,

331 F.3d 63 (2d Cir. 2003) ................................................................................................ 4, 6

iv
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Cases Pages

Simms v. City of New York, et. al.,

480 Fed App’x 627 (2d Cir. 2012) (Summary Order) .......................................................... 16

Tangreti v. Bachmann,
983 F.3d 609 (2d Cir. 2020) .................................................................................................. 7

Tieman v. City of Newburgh,

13 Civ. 4178 (KMK),
2015 U.S. Dist. LEXIS 38703 (S.D.N.Y. Mar. 26, 2015) ............................................... 12, 16

Triano v. Town of Harrison,

895 F. Supp. 2d 526 (S.D.N.Y. 2012) .................................................................................. 16

Vippolis v. Vill. of Haverstraw,

768 F.2d 40 (2d Cir. 1985) .................................................................................................. 10

Walker v. City of New York,

12 Civ. 5902 (PAC),
2014 U.S. Dist. LEXIS 42272 (S.D.N.Y. Mar. 18, 2014) ..................................................... 13

Walker v. City of New York,

14 Civ. 808 (ER),
2015 U.S. Dist. LEXIS 91410 (S.D.N.Y. July 14, 2015) ................................................ 13, 16

Washington v. County of Rockland,

373 F.3d 310 (2d Cir. 2004) .................................................................................................. 4

Wray v. City of New York,

490 F.3d 189 (2d Cir. 2007) .......................................................................................... 14, 15

Zanfardino v. City of New York,

15 Civ. 8829 (GHW),
2018 U.S. Dist. LEXIS 39994 (S.D.N.Y. Mar. 9, 2018) ..................................................... 3, 4

Statutes

42 U.S.C. § 1983 ............................................................................................................... 5, 9, 14

Fed. R. Civ. P. 8(a)(2) ................................................................................................................. 2

Fed. R. Civ. P. 12(b)(6) ............................................................................................................... 1

v
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UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF NEW YORK
----------------------------------------------------------------------- x

GEORGE BELL, DEFENDANTS’

MEMORANDUM OF LAW
Plaintiff, IN SUPPORT OF MOTION
TO DISMISS
-against-
22 CV 3251 (DG)(PK)
THE CITY OF NEW YORK, et. al.,

Defendants.

----------------------------------------------------------------------- x

PRELIMINARY STATEMENT

Defendants City of New York, Det. Louis Pia (Ret.) (Third and Fifth Causes of

Action only), Richard Sica (Ret.) (Third and Fifth Causes of Action only), Lt. William Nevins

(Ret.) and Det. Paul Heider (Ret.), hereby respectfully submit their Memorandum of Law in

support of their motion to dismiss plaintiff’s amended complaint (the “Complaint”) with prejudice

pursuant to Rule 12(b)(6), Fed. R. Civ. P. For the reasons set forth herein, the Complaint fails to

state claims upon which relief may be granted, thus, defendants’ motion should be granted in its

entirety and the Complaint dismissed with prejudice as to the claims addressed herein.

LEGAL STANDARD

“To survive a motion to dismiss, a complaint must contain sufficient factual matter,

accepted as true, to ‘state a claim to relief that is plausible on its face.’” Ashcroft v. Iqbal, 556

U.S. 662, 678 (2008) (quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007)). A

claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw

the reasonable inference that the defendant is liable for the misconduct alleged. Id. (quoting

Twombly, 550 U.S. at 556). “The plausibility standard is not akin to a ‘probability requirement,’

but it asks for more than a sheer possibility that a defendant has acted unlawfully.” Id. “Where a
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complaint pleads facts that are ‘merely consistent with’ a defendant’s liability, it ‘stops short of

the line between possibility and plausibility of ‘entitlement to relief.’” Id. (quoting Twombly, 550

U.S. at 557).

Two working principles determine whether a complaint may survive a motion to

dismiss. Ashcroft, 556 U.S. at 678-679. “First, the tenet that a court must accept as true all of the

allegations contained in a complaint is inapplicable to legal conclusions. Threadbare recitals of

the elements of a cause of action, supported by mere conclusory statements, do not suffice.” Id.

(citing Twombly, 550 U.S. at 555) (“Although for the purposes of a motion to dismiss we must

take all of the factual allegations in the complaint as true, we ‘are not bound to accept as true a

legal conclusion couched as a factual allegation.’”). “Rule 8 marks a notable and generous

departure from the hyper-technical, code-pleading regime of a prior era, but it does not unlock the

doors of discovery for a plaintiff armed with nothing more than conclusions.” Id. Second, only a

complaint that states a plausible claim for relief survives a motion to dismiss. Id. (citing Twombly,

550 U.S. at 556). “Determining whether a complaint states a plausible claim for relief will, as the

Court of Appeals observed, be a context-specific task that requires the reviewing court to draw on

its judicial experience and common sense.” Id. (quoting Iqbal v. Hasty, 490 F.3d 143, 157-58 (2d

Cir. 2007)). “But where the well-pleaded facts do not permit the court to infer more than the mere

possibility of misconduct, the complaint has alleged – but it has not ‘show[n]” – “that the pleader

is entitled to relief.’” Id. (citing Fed. Rule Civ. Proc. 8(a)(2)).

“The Court's review of defendants’ motion to dismiss is limited to the facts alleged

in the complaint, documents attached to the complaint or incorporated by reference in the

complaint, documents integral to the complaint, and matters of which the Court may take judicial

notice.” Kravtchouk v. City of New York, et. al., 16 Civ. 4787 (RRM), 2019 U.S. Dist. LEXIS

2
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173982, at *8 (E.D.N.Y. Sept. 30, 2019); see also Chambers v. Time Warner, Inc., 282 F.3d 147,

153 (2d Cir. 2002) (“a court may consider ‘matters of which judicial notice may be taken, or . . .

documents either in plaintiffs’ possession or of which plaintiffs had knowledge and relied on in

bringing suit.’”). “Even where a document is not incorporated by reference, the court may

nevertheless consider it where the complaint ‘relies heavily upon its terms and effect,’ which

renders the document integral to the complaint.” Chambers, 282 F.3d at 152-53. “Insofar as the

complaint relies on the terms” of a document either annexed or deemed incorporated by reference,

the court “need not accept its description,” but may look to the document itself. See Broder v.

Cablevision Sys. Corp., 418 F.3d 187, 196 (2d Cir. 2005).

ARGUMENT

POINT I

PLAINTIFF’S MALICIOUS PROSECUTION

CLAIMS SHOULD BE DISMISSED

Plaintiff has brought a federal malicious prosecution claim against the defendants

Pia and Sica in his Third Cause of Action of the Complaint, as well as a state law malicious

prosecution claim against the defendants Pia, Sica and City in his Fifth Cause of Action of the

Complaint. To establish a claim for malicious prosecution, a plaintiff must prove “1) the initiation

or continuation of a criminal proceeding against plaintiff; 2) termination of the proceeding in

plaintiff’s favor; 3) the lack of probable cause for commencing the proceeding; and 4) actual

malice as a motivation for defendant’s actions.” Manganiello v. City of New York, 612 F.3d 149,

161 (2d Cir. 2010) (internal citations omitted). In addition, as to plaintiff’s federal claim, the

Second Circuit requires the plaintiff to show that there was "a seizure or other perversion of proper

legal procedures implicating the claimant's personal liberty and privacy interests under the Fourth

Amendment." Zanfardino v. City of New York, 15 Civ. 8829 (GHW), 2018 U.S. Dist. LEXIS

3
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39994, at *13 (S.D.N.Y. Mar. 9, 2018) (quoting Washington v. County of Rockland, 373 F.3d 310,

316 (2d Cir. 2004)).

Where – as here – plaintiff was indicted, there is a presumption of probable cause

for the purposes of defending against a subsequent claim which may be overcome only with

“evidence that the indictment was the product of fraud, perjury, the suppression of evidence by the

police, or other police conduct undertaken in bad faith.” Green v. Montgomery, 219 F.3d 52, 60

(2d Cir. 2000). “The burden of rebutting the presumption of probable cause requires the plaintiff

to establish what occurred in the grand jury, and to further establish that those circumstances

warrant a finding of misconduct sufficient to erode the ‘premise that the Grand Jury acts

judicially.’” Rothstein v. Carriere, 373 F.3d 275, 284 (2d Cir. 2004) (quoting Colon v. City of

New York, 60 N.Y.2d 78, 82 (1983)). “Rothstein sets a high bar for malicious prosecution claims

in cases where a grand jury issued an indictment. In effect, it requires [the] plaintiff[] to prove

what happened before the grand jury to negate probable cause.” Frederick v. New York City, 11

Civ. 469 (JPO), 2012 U.S. Dist. LEXIS 150223, at *27 (S.D.N.Y. Oct. 11, 2012). “Therefore, to

rebut a presumption of probable cause at the pleading stage, a plaintiff must plead facts that

plausibly allege the existence of fraud, perjury, suppression of evidence, or bad faith on the part

of the police defendants.” Zanfardino, supra, at *13 (internal citations omitted). “‘Mere conjecture

and surmise’ are insufficient to rebut the presumption." Id. (quoting Savino v. City of New York,

331 F.3d 63, 72 (2d Cir. 2003)).

The Second Circuit has held that “[i]nitiation in [the context of malicious

prosecution] is a term of art,” involving more than merely reporting a crime and giving testimony;

“it must be shown that defendant played an active role in the prosecution, such as giving advice

4
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and encouragement or importuning the authorities to act.” Rohman v. New York City Transit

Auth., 215 F.3d 208, 217 (2d Cir. 2000).

Witnesses are also entitled to absolute immunity based on any testimony given to

the Grand Jury. Rehberg v. Paulk, 566 U.S. 366 (2012). The same rule applies to plaintiff’s state

law malicious prosecution claim against Pia and Sica. S.B. v. City of New York, 14 Civ. 1021

(KAM), 2016 U.S. Dist. LEXIS 115881, at *45 n.13 (E.D.N.Y. Aug. 29, 2016). The Supreme

Court held in Rehberg that “this rule may not be circumvented by claiming that a grand jury

witness conspired to present false testimony or by using evidence of the witness’ testimony to

support any other §1983 claim concerning the initiation or maintenance of a prosecution.”

Rehberg, at 369. “Were it otherwise, ‘a criminal defendant turned civil plaintiff could simply

reframe a claim to attack the preparation instead of the absolutely immune actions themselves.’”

Id.

Plaintiff’s malicious prosecution claims should be dismissed for a number of

reasons. As to the defendant Det. Pia, he gave Grand Jury testimony in the underlying criminal

proceedings. The pertinent Grand Jury testimony (Declaration of Mark D. Zuckerman, dated

November 15, 2022 (hereinafter “Zuckerman Decl.,” Ex. A) should be considered on defendants’

motion to dismiss, as it is “integral” to the Complaint and “incorporated by reference,” 1 since the

Complaint often references the Grand Jury proceedings (Complaint, e.g., ¶¶468, 469, 496 and

498), the minutes of which plaintiff’s counsel was in possession of, see Chambers, supra, 282 F.3d

at 153, without citing to Det. Pia’s Grand Jury testimony.

1
Alternatively, the Court should take judicial notice of Det. Pia’s Grand Jury testimony. See
Kravtchouk, supra, at *8.

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Det. Pia’s Grand Jury testimony reflects that his testimony was limited to an

inculpatory statement that plaintiff made and which Det. Pia recorded. As that was the entirety of

Det. Pia’s involvement in the Grand Jury proceedings, he is entitled to absolute immunity under

Rehberg for such testimony. As such, plaintiff’s federal and state law malicious prosecution

claims against him should be dismissed.

Further, plaintiff’s federal and state law malicious prosecution claims (plaintiff’s

Third and Fifth Causes of Action) are replete with vague, conclusory and speculative assertions

about how the Grand Jury indictment against plaintiff was overcome by the alleged conduct of

Dets. Pia or Sica. See Iqbal, supra; Savino, supra; Rothstein, supra. Plaintiff does not cite to a

single well pled fact of what actually occurred in the Grand Jury proceedings, a strategy that was

purposeful in light of the absolute immunity that Det. Pia enjoys based on his limited Grand Jury

involvement. As such, plaintiff’s malicious prosecution claims are not plausibly alleged under the

foregoing authorities.

As to Det. Sica, it is not alleged that he Grand Jury testimony at all nor did he have

any involvement whatsoever in what occurred before the Grand Jury. Thus, he certainly cannot

be held responsible for anything that occurred in the Grand Jury proceedings that allegedly negates

the presumption of probable cause. In any event, Det. Sica did not “initiate” or “continue” the

criminal proceedings against plaintiff, see Rohman, supra, as Det. Pia, according to the Complaint,

only executed the criminal complaint against plaintiff. (See Complaint, ¶468) Plaintiff’s

allegation that Det. Sica was “acting in concert” with Det. Pia, see Complaint, ¶468, is entirely

“conclusory” and “threadbare” under Iqbal and thus the “initiation” prong of the malicious

prosecution test has not been met as to Det. Sica for this reason alone.

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POINT II

PLAINTIFF’S DENIAL OF FAIR TRIAL

CLAIMS AGAINST THE DEFENDANTS
NEVINS AND HEIDER SHOULD BE
DISMISSED

In his Second Cause of Action, plaintiff has brought federal denial of fair trial

claims against Lt. Nevins (Ret.) and Det. Heider (Ret.), as well as all individual defendants. To

prevail on a fabrication of evidence claim, a plaintiff must show that “an (1) investigating official

(2) fabricate[d] information (3) of a material nature 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.” Garnett v. Undercover Officer C0039, 838 F.3d 265, 279 (2d Cir. 2016).

“A fair trial claim may… arise where the police or prosecutors withhold material exculpatory or

impeaching evidence from a defendant.” Fappiano v. City of New York, 640 Fed. App’x 115, 118

(2d Cir. 2016) (Summary Order). The alleged suppression of evidence must, however, at a

minimum, be intentional. Fappiano, supra.

A. William Nevins

The Second Circuit Court of Appeals recently revisited the test for supervisory liability

in Tangreti v. Bachmann, 983 F.3d 609 (2d Cir. 2020), and reconsidered it in light of Iqbal, supra.

Tangreti, 983 F.3d at 615. “Iqbal holds that a plaintiff may not rely on a special test for supervisory

liability. Rather, ‘a plaintiff must plead that each Government-official defendant, through the official's

own individual actions, has violated the Constitution.’” Tangreti, at 616 (quoting Iqbal, 556 U.S. at

676).

Although plaintiff is imprecise about Lt. Nevins’ command and who he supervised, the

Complaint alleges that Lt. Nevins was a supervisor at the time that the underlying investigation was

being conducted. (See Complaint, ¶281) However, there is no allegation that the defendant Nevins

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committed any actionable fabrication of evidence. To the contrary, plaintiff’s allegation against Lt.

Nevins is that a non-party Det. Stacey Calantjis provided Lt. Nevins certain information about

Speedstick and “Nevins did not pursue any of the leads regarding Speedstick’s involvement.” (See

Complaint, ¶281) Plaintiff’s allegation against Lt. Nevins is insufficient to confer liability because

there is also no stand-alone denial of fair trial claim based on an officer’s failure to conduct an adequate

investigation. See Hicks v. Marchman, 719 Fed. App’x 61, 64 (2d Cir. 2018) (Summary Order)

(dismissing denial of fair trial claim based on defendant officer’s failure to conduct an adequate

investigation).

Plaintiff also alleges that Lt. Nevins did not provide to the QCDA “all of the

information that Det. Calantjis…had…” (Complaint, ¶¶281 and 282) This allegation is completely

conclusory and speculative under Iqbal since plaintiff in no way specifies exactly what information he

is referring to or that Lt. Nevins was the NYPD officer investigating this case who had the

responsibility for interacting with the QCDA prosecutors regarding such information. Furthermore,

there is no allegation of intentionality.

Simply, plaintiff has not plausibly alleged that Lt. Nevins fabricated or suppressed

evidence to support the denial of fair trial claim against him. As such, plaintiff’s claim against Lt.

Nevins (Second Cause of Action) fails and should be dismissed with prejudice.

B. Paul Heider

Plaintiff has not plausibly alleged that Det. Heider fabricated evidence either.

Plaintiff’s allegation against Det. Heider is not that he worked on any aspect of the investigation of the

underlying homicides of Ira “Mike” Espstein and Charles Davis, but rather that he was assigned to

various other investigations involving Speedstick and that makes him responsible somehow for

plaintiff’s prosecution. (See Complaint, ¶¶204, 216-217, 226-234, 256-260, 289, 291, 301-302)

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However, Det. Heider fabricated no evidence whatsoever. The “notes” of ADA Testagrossa of which

plaintiff complains throughout his complaint was Brady material, and which were based on an alleged

communication that Testagrossa had with Det. Heider, are not alleged to be false or inaccurate and

Det. Heider cannot be held liable for notes that ADA Testagrossa allegedly took (and from information

provided by Det. Heider that plaintiff alleges was accurate and not fabricated) and/or did not disclose

to the defense. (See Complaint, ¶289). Further, even if it was Det. Heider’s opinion that Speedstick

was not involved in the underlying homicides of Epstein and Davis (see Complaint, ¶229), to which

he is entitled, he did not fabricate any evidence whatsoever and would be absolutely immune in

connection with testimony in any event. See Rehberg, supra, at 369. In fact, the foregoing “notes”

of ADA Testagrossa and Det. Heider’s DD5 288 (See Complaint, ¶256) demonstrate that the evidence

provided by Det. Heider, upon which plaintiff relies on in this case as undisclosed Brady material, was

not fabricated. Plaintiff’s claims against Heider should be dismissed.

POINT III

PLAINTIFF’S MUNICIPAL LIABILITY

CLAIMS SHOULD BE DISMISSED

“In order to hold the City of New York liable under 42 U.S.C. § 1983 for an alleged

constitutional violation, plaintiff must plead: (1) an official policy or custom that (2) cause[d]

[plaintiff] to be subjected to (3) a denial of a constitutional right.” Aquino v. City of New York,

16 Civ. 1577 (GHW), 2017 U.S. Dist. LEXIS 10436, at *8 (S.D.N.Y. Jan. 25, 2017). A

municipality may not be held liable under § 1983 on the basis of respondeat superior. Monell v.

Dep’t of Social Services, 436 U.S. 658, 694-95 (1978). To hold a municipality liable as a “person”

within the meaning of §1983, a plaintiff must establish that the municipality itself was somehow

at fault. Oklahoma City v. Tuttle, 471 U.S. 808, 810 (1985).

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Plaintiff can satisfy the “policy or custom” prong required for municipal liability

by alleging “the existence of (1) a formal policy, see Monell, supra, 436 U.S. at 690; (2) actions

taken or decisions made by final municipal policymakers that caused the violation of [plaintiff’s]

rights, see Pembaur v. City of Cincinnati, 475 U.S. 469, 483-84 (1986) (plurality opinion); (3) a

practice so persistent and widespread that it constitutes a “custom or usage” and implies the

constructive knowledge of policymakers, see Monell, 436 U.S. at 690-91; or (4) a failure to

properly train or supervise municipal employees that amounts to “deliberate indifference to the

rights of those with whom municipal employees will come into contact.” See City of Canton v.

Harris, 489 U.S. 378, 388 (1989).2 It is well established that a single isolated incident alleged in

a complaint, especially where the alleged incident involves only officials below the policymaking

level, will not suffice to establish a municipal policy or custom. Oklahoma City v. Tuttle, supra,

at 824.

“A plaintiff bringing a Monell claim also must establish a causal connection

between the municipality's official policy and the underlying constitutional violation.” Gaston,

supra, at *15-16 (citing City of Canton, supra, at 385). In fact, “the plaintiff must establish a causal

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

rights.” Vippolis v. Vill. of Haverstraw, 768 F.2d 40, 44 (2d Cir. 1985) (internal quotation marks

and citation omitted). “To establish Monell liability, the causal link must be strong; that is, the

policy must be the ‘moving force’ behind a constitutional violation.” Mercado v. City of N.Y., 08

CV 2855 (BSJ) (HP), 2011 U.S. Dist. LEXIS 140430, at *23 (S.D.N.Y. Dec. 5, 2011) (quoting

Monell, 436 U.S. at 694); see also Morris v. City of New York, 20 Civ. 9314 (GBD), 2021 U.S.

2
The Complaint does not plausibly allege either a formal policy or a decision of final policymaker
that caused the violation of plaintiff’s rights. As such, the first two prongs of the foregoing test
for municipal liability are not addressed.

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Dist. LEXIS 186917, at *19-22 (S.D.N.Y. Sept. 29, 2021) (“Plaintiff's Monell claim fails because

the [complaint] does not sufficiently allege the existence of a policy, custom or practice that was

the driving force of any violation of Plaintiff's constitutional rights.”).

A. Custom or Practice of Not Sharing Brady Material Within the QCDA

Plaintiff’s first municipal liability claim, despite containing any and every possible

allegation of QCDA misconduct that he can find 3, no matter how unrelated, is truly and solely

based on the specific allegation that the QCDA had an unofficial custom or practice of not sharing

Brady material among its prosecutors and between its various units, resulting in plaintiff’s rights

being violated. (See Complaint, ¶¶ 318-364; Fourth Cause of Action) For plaintiff to establish

municipal liability by an unofficial custom or practice, he needs to show that the City "indirectly

caused the misconduct of a subordinate municipal employee by acquiescing in a longstanding

practice or custom which may fairly be said to represent official policy." Miller v. County of

Nassau, 467 F. Supp.2d 308, 314 (E.D.N.Y. 2006) (quoting Monell, supra, at 694). In order to

prove such a municipal liability theory, plaintiff must establish that the practice alleged was so

manifest as to imply the acquiescence of policy-making officials. City of St. Louis v. Praprotnik,

485 U.S. 112, 127-30 (1985) (plurality opinion).

A plaintiff may plead the existence of de facto customs or policies “by citing to

complaints in other cases that contain similar allegations.” Gaston v. Ruiz, 17 Civ. 1252 (NGG),

2018 U.S. Dist. LEXIS 112695, at *17 (E.D.N.Y. July 6, 2018). “Such complaints must involve

factually similar misconduct, be contemporaneous to the misconduct at issue in the plaintiff’s case,

and result in an adjudication of liability.” Rodriguez v. City of New York, 16 Civ. 1649

3
In fact, only a few of the cases cited by plaintiff involve any Brady issues of any kind.

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(AMD)(RLM), 2022 U.S. Dist. LEXIS 104160, at *27 n.9 (E.D.N.Y. June 7, 2022) (quoting Buari

v. City of New York, 530 F. Supp.3d 356, 398 (S.D.N.Y. 2021)). “References to unconnected,

irrelevant litigation are patently inadequate to allege a policy or custom of the City, let alone allege

that that policy or custom is the one that gave rise to Plaintiff’s alleged violation.” Peterec v. City

of New York, 14 Civ. 309 (RJS), 2015 U.S. Dist. LEXIS 28504, at *18-19 (S.D.N.Y. Mar. 6,

2015). “Research reports may be used to bolster Monell claims, but only if those reports are

sufficiently connected to the specific facts of the case….” Isaac v. City of New York, 16 Civ.

4729 (KAM) (RLM), 2018 U.S. Dist. LEXIS 132995, at *51 (E.D.N.Y. Aug. 6, 2018) (M.J. Mann)

(internal citations omitted), adopted by, Isaac v. City of New York, 16 Civ. 4729 (KAM)(RLM),

2018 U.S. Dist. LEXIS 163536 (E.D.N.Y. Sept. 24, 2018). “[M]ere negligence is insufficient to

establish a Monell claim.” Garcia v. Bloomberg, 662 Fed. App’x 50, 54 (2d Cir. 2016) (Summary

Order) (citing Amnesty Am. v. Town of W. Hartford, 361 F.3d 113, 128 (2d Cir. 2004)).

Even a handful of purportedly “similar incident[s]” for which there were no

adjudications would be insufficient to plausibly allege such a pervasive “custom or practice”

theory. See An v. City of New York, 230 F. Supp.3d 224, 229-30 (S.D.N.Y. 2017) (six lawsuits

and one newspaper article over four year period insufficient to allege municipal liability where

there were no adjudications against defendant); Calderon v. City of New York, 138 F. Supp.3d

593, 612-613 (S.D.N.Y. 2015) (16 lawsuits over 12 year period where there were no adjudications

against defendant did not suggest a pervasive practice); Tieman v. City of Newburgh, 13 Civ.

4178 (KMK), 2015 U.S. Dist. LEXIS 38703, at *50 (S.D.N.Y. Mar. 26, 2015) (13 lawsuits against

defendant over four year period without finding of adjudication against defendant insufficient);

Rodriguez, supra, at *27 n.9 (three purportedly similar cases predating criminal conviction

inadequate to allege municipal custom or practice); Collins v. City of New York, 923 F. Supp.2d

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462, 479 (E.D.N.Y. 2013) (dismissing municipal liability claims where litany of other police

misconduct cases were dissimilar and had not resulted in liability against the municipality); Walker

v. City of New York, 12 Civ. 5902 (PAC), 2014 U.S. Dist. LEXIS 42272, at *6 (S.D.N.Y. Mar.

18, 2014) (10 purportedly similar complaints over a period of a decade insufficient to plausibly

allege municipal liability).

Judge Edgardo Ramos’ decision in Walker v. City of New York, 14 Civ. 808 (ER),

2015 U.S. Dist. LEXIS 91410 (S.D.N.Y. July 14, 2015), is instructive. In that case, plaintiff

attempted to support his municipal liability theory by listing 36 other civil complaints over a 13

year period. Id., at *19. Plaintiff’s municipal liability claims based on an alleged “custom or

usage,” however, were dismissed upon defendant’s motion to dismiss. Judge Ramos reasoned, in

part, that there were no findings or adjudication of liability in any of those cases against the City

or the individual officer defendants. Id, at *19-24. “Indeed, although it is routine for courts to

take judicial notice of court documents, they do so ‘not for the truth of the matters asserted in the

other litigation, but rather to establish the fact of such litigation and related filings.’” Id. at *24-

25 (quoting Kramer v. Time Warner, Inc., 937 F.2d 767, 774 (2d Cir. 1991)).

Plaintiff’s “custom or practice” municipal liability claim fails. Simply, it has not

been plausibly alleged that any failure of the QCDA to comply with Brady obligations in this case

because information in one QCDA unit was not available to the Bell, Bolt and Johnson prosecutors

was the “conscious choice” of the QCDA or was so pervasive so as to have the implied

acquiescence of policy making officials. Despite plaintiff’s branding of any Brady failures as

“deliberate” without any supporting facts, at most, plaintiff’s claim as to what allegedly occurred

in this case seems to lie in negligence, which is insufficient for a municipal liability claim. Plaintiff

has not alleged even one other case where anything similar occurred in terms of Brady information

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of one QCDA unit not being available to the QCDA unit either producing discovery or having trial

responsibilities (much less another similar case that resulted in an adjudication of liability).

Plaintiff cannot seriously dispute that a single isolated incident alleged in a complaint, especially

where the alleged incident involves only officials below the policymaking level, will not suffice

to establish a municipal policy or custom. Oklahoma City v. Tuttle, supra, at 824. Plaintiff’s claim

fails.

B. Failure to Train or Discipline

Plaintiff also alleges a municipal failure to train and discipline by the QCDA which

resulted in his rights being violated. (Complaint, ¶¶365-440) A municipality’s failure to train,

[discipline] or supervise its employees may constitute a “policy” or “custom,” but a plaintiff

premising liability on a claim of failure to train or supervise must show that “the failure amounts

to ‘deliberate indifference’ to the rights of those with whom the city employees interact.” Wray

v. City of New York, 490 F.3d 189, 195 (2d Cir. 2007). “Deliberate indifference,” as the Supreme

Court cautioned, “is a stringent standard of fault, requiring proof that a municipal actor

disregarded a known obvious consequence of his action.” Connick v. Thompson, 563 U.S. 51, 61

(2011) (emphasis added). Although a municipality may be liable under §1983 for its policies or

customs, only “[i]n limited circumstances [can] a local government’s decision not to train [or

discipline] certain employees about their duty to avoid violating citizens’ rights [] rise to the level

of an official government policy for purposes of § 1983.” Id. (“municipality’s culpability for a

deprivation of rights is at its most tenuous where a claim turns on a failure to train” [or discipline]).

“[W]here a city has a training [or disciplinary] program, a plaintiff must . . . identify

a specific deficiency in the city’s training [or disciplinary] program and establish that that

deficiency is closely related to the ultimate injury, such that it actually caused the constitutional

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deprivation.” Wray, 490 F.3d at 196 (internal quotation marks and citations omitted; emphasis

added). “[A] training program must be quite deficient in order for the deliberate indifference

standard to be met: the fact that training [or discipline] is imperfect or not in the precise form a

plaintiff would prefer is insufficient to make such a showing.” Reynolds v. Giuliani, 506 F.3d

183, 193 (2d Cir. 2007).

“In order for a plaintiff to succeed on his failure to train and failure to discipline

theories, there must be a pattern of similar misconduct” sufficient to demonstrate deliberate

indifference. Davis v. City of New York, 12 Civ. 3297 (PGG), 2018 U.S. Dist. LEXIS 231116,

at *15 (S.D.N.Y. Mar. 30, 2018) (internal citation omitted). “As to failure to discipline, ‘a

municipality may be found to have a custom that causes a constitutional violation if the city has

been faced with a pattern of misconduct,’ but ‘does nothing, compelling the conclusion that [it]

has acquiesced in or tacitly authorized its subordinates’ unlawful actions.” Id., supra, at *12-13

(internal quotations omitted).

To succeed on a “deliberate indifference” theory, a plaintiff must show that

(i) “city policymakers are on actual or constructive notice that a particular omission in their training

[or disciplinary] program causes city employees to violate citizens’ constitutional rights,” and

notwithstanding such notice, (ii) “the policymakers choose to retain that program.” Connick, 563

U.S. at 61. With respect to claims alleging failure to train [or discipline], it is “ordinarily

necessary” to establish a “pattern of similar constitutional violations by untrained employees.” Id.

at 62 (“Without notice that a course of training is deficient in a particular respect, decisionmakers

can hardly be said to have deliberately chosen a training program that will cause violations of

constitutional rights.”). “[A] failure to act, train, [discipline] or supervise can constitute a

municipal custom ‘only where the need to act is so obvious, and the inadequacy of current practices

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so likely to result in a deprivation of federal rights, that the municipality or official can be found

deliberately indifferent to the need.’” Triano v. Town of Harrison, 895 F. Supp. 2d 526, 534

(S.D.N.Y. 2012) (quoting Reynolds, at 192.) “The operative inquiry is whether the facts suggest

that the policymaker's inaction was the result of a "conscious choice" rather than mere negligence.”

Amnesty Am., supra, at 128 (citing City of Canton, supra, at 389).

A handful of other incidents are insufficient to “plausibly” allege municipal liability

under a “failure to train” [or discipline] theory and courts have dismissed “failure to train” [or

discipline] municipal liability allegations even where a handful or other complaints have been cited

in a complaint without adjudications of liability. See An, supra, at 231 (six lawsuits and one

newspaper article over a four year period insufficient to plausibly allege notice of the need for

additional training under a failure to train theory); see also Simms v. City of New York, et. al., 480

Fed App’x 627, 630 (2d Cir. 2012) (Summary Order) (“[A]ll that the Complaint’s reference to the

other action establishes is that other individuals have plausibly alleged that they experienced

similar violations of their constitutional rights as Simms alleges here, not that those violations

actually occurred.”)

Plaintiff must also plead that the City did not investigate any other “similar

incidents” alleged in the Complaint, which is a necessary element of such a claim. Walker v. City

of New York, et. al., supra, 2015 U.S. Dist. LEXIS 91410, at *29 (“although Plaintiff alleges a

pattern of allegations about similar misconduct, he does not specifically claim that the City failed

to investigate the list of lawsuits.”); Tieman, supra, at *61-63 (allegations of other instances of

excessive force by themselves inadequate to raise an inference of deliberate indifference as

plaintiff had failed to allege that “‘meaningful attempts to investigate repeated claims of excessive

force are absent.’”); An, supra, at 231 (complaint was inadequate as there was no allegation that

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the City, once on notice of a deficiency in its training programs, failed to investigate any such

inadequacy).

Plaintiff’s failure to train and discipline claim fails for a number of reasons. First,

plaintiff has not plausibly alleged deliberate indifference under Connick and its progeny because

he has not alleged a pattern of similar complaints of the Constitutional violation which allegedly

occurred in this case, namely that the QCDA failed to have a mechanism in place to allow Brady

material to be shared among its different units. In fact, as seen, the Complaint does not cite to any

instances of alleged similar misconduct that would have put the City on notice of the specific

deficiency of which he complains. Second, as argued above, plaintiff’s Complaint lends itself to,

at most, a negligence claim for the way the QCDA handled Brady material in the underlying

investigations of Bell, Bolt and Johnson, which cannot give rise to Monell liability. Third, under

Wray, supra, there is simply no connection between the disciplinary programs of the QCDA of

which plaintiff complains and the injury he allegedly suffered in this case, because plaintiff’s

Complaint is completely devoid of any allegation of any prosecutor involved in Bell, Bolt or

Johnson who should have been disciplined for prior misconduct, but was not. For similar reasons,

any failure to discipline cannot be the “moving force” of the specific underlying constitutional

violation alleged by plaintiff. See e.g. Morris, supra. Fourth, the QCDA “Survey” research report,

upon which plaintiff principally relies for the allegation of a municipal failure to discipline (see

Complaint, ¶¶371-76), is not sufficiently connected to the specific facts of this case because none

of the Bell, Bolt and Johnson prosecutors were the subject of that report. See Isaac, supra. Fifth,

the QCDA “Survey” research report demonstrates that the QCDA did investigate the allegations

of QCDA misconduct, which under the authorities cited above bars such a claim. See An, supra.

As such, plaintiff’s failure to train and discipline theories of municipal liability fail.

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CONCLUSION

For the foregoing reasons, defendants’ motion to dismiss should be granted in its

entirety and plaintiff’s Complaint dismissed with prejudice as to the claims addressed herein.

Dated: New York, New York

November 15, 2022

HON. SYLVIA O. HINDS-RADIX

Corporation Counsel of the
City of New York
Attorney for Defendants City of New York, Det.
Louis Pia (Ret.), Det. Richard Sica (Ret.), Lt.
William Nevins (Ret.) and Det. Paul Heider (Ret.)
100 Church Street, Room 3-133b
New York, New York 10007
(212) 356-3519

By: /s/ Mark D. Zuckerman

MARK D. ZUCKERMAN
Senior Counsel

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