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Arroyo v. The City of Buffalo

United States District Court, W.D. New York

July 20, 2017

ADAM ARROYO, Plaintiff,
v.
THE CITY OF BUFFALO, CITY OF BUFFALO POLICE DEPARTMENT, DANIEL DERENDA, Commissioner of the City of Buffalo Police Department, DET. JOHN GARCIA, Buffalo Police Narcotics Officer, DET. SGT. BRENDA CALLAHAN, Narcotics Officer, CITY OF BUFFALO POLICE DEPARTMENT NARCOTICS DIVISION, DET. JOSEPH COOK, MICHAEL DeGEORGE, City of Buffalo Spokesperson, Defendants.

          MATTHEW A. ALBERT, ESQ. Attorney for Plaintiff.

          TIMOTHY A. BALL CORPORATION COUNSEL, CITY OF BUFFALO Attorney for Defendants MAEVE E. HUGGINS, DAVID M. LEE, CHRISTOPHER R. POOLE, Assistant Corporation Counsels, of Counsel.

          DECISION AND ORDER REPORT AND RECOMMENDATION

          LESLIE G. FOSCHIO UNITED STATES MAGISTRATE JUDGE.

         This case was referred to the undersigned by order of Hon. Richard J. Arcara filed November 23, 2015 (Dkt. 7) for all pretrial purposes. The matter is presently before the court on Defendants' motion for judgment on the pleadings, summary judgment, to disqualify Plaintiff's counsel and for a protective order filed October 31, 2016 (Dkt. 15), and on Plaintiff's motion to amend the Scheduling Order filed January 12, 2017 (Dkt. 23).

         BACKGROUND

         Plaintiff initiated this action pursuant 42 U.S.C. §§ 1983, 1985, and 1988 on August 22, 2015 by filing the Complaint alleging violations of Plaintiff's Fourth and Fourteenth Amendment rights involving an alleged mistaken entry into Plaintiff's apartment while executing a search warrant by Defendants Garcia, Callahan and Cook. the unnecessary shooting of Plaintiff's pet dog, a female pit bull named Cindy, by Defendant Cook, and a seizure of various of Plaintiff's personal property. Defendants' motion for judgment on the pleadings pursuant to Fed.R.Civ.P. 12(c) (“Rule 12(c)”) or for summary judgment pursuant to Fed.R.Civ.P. 56, to disqualify Plaintiff's counsel, and for a protective order pursuant to Fed.R.Civ.P. 26(c)(1)(D) (“Rule 26(c)(1)(D)”), was filed December 19, 2016 (Dkt. 15) (“Defendants' Rule 12(c) motion, ” Defendants' Summary Judgment motion, ” Defendants' motion to disqualify, ” “Defendants' motion for protective order, ” collectively “Defendants' motions”) together with Defendants' Statement of Undisputed Facts (Dkt. 15-1) (“Defendants' Statement”), Declaration of Christopher R. Poole, Assistant Corporation Counsel (Dkt. 15-2) (“Poole Declaration”) and a Memorandum of Law in Support of Defendants' Motion (Dkt. 15-3) (“Defendants' Memorandum”) attaching exhibits A - P (Dkt. 15-5 - 20) (“Defendants' Exh(s). ___”). On December 19, 2016, Plaintiff filed a Memorandum of Law In Opposition to Defendants' Motion (Dkt. 21) (“Plaintiff's Response”) attaching exhibits A - P (Dkt. 21-1 - 20) (“Plaintiff's Exh(s). ___”). Defendants' Reply Memorandum of Law In Support of Defendants' Motion was filed January 9, 2017 (Dkt. 22) (“Defendants' Reply”). Plaintiff's Sur-Reply Memorandum of Law In Response To Defendants' Motion To Dismiss Complaint was filed January 31, 2017 (Dkt. 27) (“Plaintiff's Sur-Reply”). On January 12, 2017, Plaintiff moved for an extension of time to complete discovery (Dkt. 23) (“Plaintiff's motion to Amend the Scheduling Order”), attaching in support exhibits A through G (Dkt. 23-1 through 23-7). By order filed January 25, 2017 (Dkt. 26), the court requested Defendants Cook, Callahan and Garcia file supplemental affidavits in further support of Defendants' motion to disqualify Plaintiff's counsel (“the Order”). In compliance with the Order, on February 13, 2017, Defendants filed the Declaration of Maeve E. Huggins, Assistant Corporation Counsel (Dkt. 28), attaching exhibits A (Affidavit of Detective John C. Garcia), B (Affidavit of Detective Joseph Cook), and C (Affidavit of Detective Sergeant Brenda Callahan). Oral argument was deemed unnecessary.

         FACTS[1]

         On June 3, 2013, Plaintiff resided at 304 Breckenridge Street, Buffalo, New York (“304 Breckenridge”), in an upper rear apartment (“Plaintiff's apartment”). At some time prior to June 3, 2013, [2] a search warrant (“the search warrant”) was issued by a Buffalo City Court Judge for narcotics located in an upper apartment at 304 Breckenridge without a further particularized reference to an upper front apartment (“the front apartment”) then occupied by one Kiona Thomas (“Thomas”), whose brother, Tori Rockmore (“Rockmore”), had been arrested and charged with narcotics sales on April 17, 2013 while staying at Thomas's front apartment at 304 Breckenridge. Rockmore then resided at 69 Wheatfield Street, North Tonawanda, New York, but occasionally stayed in Thomas's front apartment which may be accessed through a front door at 304 Breckenridge. At that time, Plaintiff's apartment could be accessed only through a rear side door at 304 Breckenridge.

         Upon entering Plaintiff's apartment, one first enters Plaintiff's living room in which a twin bed and Plaintiff's belongings were located, and then passes into Plaintiff's kitchen where Plaintiff's pet dog, a female pit bull terrier named Cindy, which Plaintiff had two years earlier purchased for $150, was tethered to the cupboard or sink on a six foot chain[3] when Plaintiff was not home. At some time on the evening of June 3, 2013, Plaintiff received notice that Buffalo Police had executed the search warrant for narcotics at his apartment and during the execution of the search warrant had shot and killed Cindy. Defendants Garcia, Callahan and Cook executed the warrant and Defendant Cook shot Plaintiff's dog with a shotgun which Plaintiff alleges constitutes excessive force and an unconstitutional seizure in violation of the Fourth and Fourteenth Amendments. As a result of the shooting of Plaintiff's dog, Defendants' removal and later destruction of the dog without Plaintiff's permission, and Defendants' public misrepresentations that narcotics trafficking had occurred at Plaintiff's apartment, Plaintiff suffered severe mental distress for which Plaintiff required treatment. Plaintiff also asserts Defendants Garcia, Callahan and Cook unlawfully seized an air rifle, electronic games, and large hunting knife, and damaged several items of Plaintiff's property during their execution of the warrant. Plaintiff also alleges Defendants City of Buffalo, City of Buffalo Police Department, Police Commissioner Derenda, and the City of Buffalo Police Narcotics Divisions maintain a policy of condoning the unnecessary shooting of dogs during search warrant executions, particularly during narcotics investigations, and also engage in systematic cover-ups of the facts of such shootings. Plaintiff further claims Defendants engaged in perpetuating a fraud on the public and media by wrongfully maintaining that Plaintiff's residence was used to facilitate narcotics trafficking. Plaintiff alleges Defendants City, Police Department and Commissioner Derenda fail to adequately train, supervise and regulate police officers in the proper procedures for dealing with dogs during searches in order to avoid unnecessarily shooting the animals with deliberate indifference to the resultant constitutional violations alleged by Plaintiff.

         Plaintiff asserts nine causes of actions based on 42 U.S.C. § 1983 (“§ 1983”), 42 U.S.C. § 1985 (“§ 1985”), and New York state tort law as follows: (1) a § 1983 claim against Defendants City of Buffalo, the Buffalo Police Department, the Buffalo Police Department Narcotics Division, Police Commissioner Derenda in his official and individual capacity (“the City Defendants”), and Detectives Garcia, Callahan and Cook (“the Individual Defendants”) in their official and individual capacities, based on the unlawful execution of the search warrant in Plaintiff's apartment, the staleness of the search warrant in violation of state law, the unjustified seizure and destruction of Plaintiff's dog and other personal property in violation of the Fourth Amendment and in the course of a conspiracy to violate Plaintiff's constitutional rights in a way that would “shock the conscience” thereby also depriving Plaintiff of his liberty protected by the Fourteenth Amendment, Complaint ¶¶ 49, 52 (“First Claim”); (2) a § 1983 claim based on the alleged failure of the City Defendants to properly train and supervise City of Buffalo police officers in the reasonable use of force against pet dogs while executing search warrants directed to private premises such as Plaintiffs apartment, id. ¶¶ 56-60 (“Second Claim”); (3) a § 1983 claim against the City Defendants and the Individual Defendants based on excessive force in the execution of the search warrant at Plaintiffs apartment and the resulting seizure of Plaintiffs property including destruction of Plaintiffs pet dog in violation of the Fourth Amendment and, based on Defendants' conduct that “shocks the conscience, ” in violation of the Fourteenth Amendment, id, ¶¶ 64-66 (“Third Claim”); (4) an intentional infliction of mental distress claim against City Defendants, Michael DeGeorge acting as City Defendants' spokesman in connection with the matter, (“Defendant DeGeorge”) and the Individual Defendants based on the killing of Plaintiff's pet dog “in the presence of Plaintiff, ” and a “subsequent cover up, ” id, ¶¶ 71, 72 (“Fourth Claim”); (5) alleged intentionally and unjustifiably damaging Plaintiff's personal property including his pet dog against both the City and the Individual Defendants, id., ¶¶ 64-75 (“Fifth Claim”); (6) a negligence claim against City and the Individual Defendants based on the failure of City Defendants to properly train police officers, provide protocols for the interaction of police officers with animals in the course of their official duties particularly in the execution of narcotics search warrants, to avoid the use of lethal force against such animals constituting animal cruelty, and the negligent hiring and entrustment of Defendant Cook to act as a police officer in using force against pet dogs, id, ¶ 77 (“Sixth Claim”); (7) a § 1983 claim against the City Defendants and the Individual Defendants based on the conduct of the Individual Defendants in wrongfully executing a stale search warrant at Plaintiff's apartment in violation of Plaintiff's Fourth and Fourteenth Amendment rights, id., ¶¶ 79-80 (“Seventh Claim”); (8) a § 1985 claim against City Defendants and Officer Brian J. Gummo in the unauthorized disposition of Cindy's remains in violation of Plaintiff's rights under the Due Process, Equal Protection and Privileges and Immunities Clauses, id., ¶ 82 (“Eighth Claim”); and (9) defamation, specifically slander, against City Defendants, Defendant DeGeorge and the Individual Defendants based on the Defendants' public misrepresentation made with actual malice that Plaintiff was the sole occupant of “his residence, was selling drugs and that [Plaintiff's][4] activities . . . led to his dog being killed.” Id., ¶ 85 (“Ninth Claim”). Plaintiff also seeks punitive damages against Defendant Cook, compensatory damages, and costs pursuant to § 1988.

         DISCUSSION

         1. Defendants' Rule 12(c) Motion.

         Defendants' motion pursuant to Rule 12(c) for judgment on the pleadings is subject to the same analysis applied to a Rule 12(b)(6) motion to dismiss Johnson v. Rowley, 569 F.3d 40, 43 (2d Cir. 2009) (stating a Rule 12(c) motion employs “‘the same . . . standard applicable to dismissals pursuant to Fed.R.Civ.P. 12(b)(6).'” (quoting Morris v. Schroder Capital Mgmt. Int'l, 445 F.3d 525, 529 (2d Cir. 2006) (ellipses in original))). On a motion under Rule 12(b)(6) or Rule 12(c), the court's consideration generally is limited to the four corners of the complaint or, if matters outside the pleadings are considered, such motion must be converted to one for summary judgment with notice of the conversion given to the non-movant. See Fed.R.Civ.P. 12(d) (“If, on a motion under Rule 12(b)(6) or 12(c), matters outside the pleadings are presented to and not excluded by the court, the motion must be treated as one for summary judgment under Rule 56.”). “In ruling on a 12(b)(6) motion, and thus on a 12(c) motion, a court may consider the complaint as well as ‘any written instrument attached to [the complaint] as an exhibit or any statements or documents incorporated in it by reference.'” Kalyanaram v. American Ass'n of University Professors at New York Institute of Technology, Inc., 742 F.3d 42, 44 n. 1 (2d Cir. 2014) (quoting Yak v. Bank Brussels Lambert, 252 F.3d 127, 130 (2d Cir. 2001) (bracketed material in original)). “Moreover, ‘on a motion to dismiss, a court may consider . . . matters of which judicial notice may be taken, [and] documents either in plaintiffs' possession or of which plaintiffs had knowledge and relied on in bringing suit.'” Id. (quoting Chambers v. Time Warner, Inc., 282 F.3d 147, 153 (2d Cir. 2002) (bracketed material in original)).

         In considering a Rule 12(b)(6) or a Rule 12(c) motion, the Supreme Court requires application of “a ‘plausibility standard, ' which is guided by ‘[t]wo working principles.'” Harris v. Mills, 572 F.3d 66, 71-72 (2d Cir. 2009) (citing Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007); and quoting Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)). “First, although ‘a court must accept as true all of the allegations contained in a complaint, ' that ‘tenet' is inapplicable to legal conclusions, ' and ‘[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice.'” Id. at 72 (quoting Iqbal, 556 U.S. at 678). “‘Second, only a complaint that states a plausible claim for relief survives a motion to dismiss, ' and ‘[d]etermining whether a complaint states a plausible claim for relief will . . . be a context-specific task that requires the reviewing court to draw on its judicial experience and common sense.'” Id. (quoting Iqbal, 556 U.S. at 679); see also Vega v. Hempstead Union Free School District, 801F.3d 72, 86 (2d Cir. 2015) (quoting Ashcroft v. Iqbal, 556 U.S. 662, 679 (2009)).

         To survive a motion to dismiss or for judgment on the pleadings, Martine's Service Center, Inc. v. Town of Walkill, 554 Fed.Appx. 32, 34 (2d Cir. Jan. 30, 2014); Johnson, 569 F.3d at 43, “a complaint must contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.'” Iqbal, 556 U.S. at 678 (quoting Twombly, 550 U.S. at 570). “A claim will have ‘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.'” Sykes v. Bank of America, 723 F.3d 399, 403 (2d Cir. 2013) (quoting Ashcroft, 556 U.S. at 678); see Twombly, 550 U.S. at 570 (the complaint must plead “enough facts to state a claim to relief that is plausible on its face”). The factual allegations of the complaint “must be enough to raise a right to relief above the speculative level on the assumption that all the allegations in the complaint are true.” Twombly, 550 U.S. at 570.

         A. City Defendants

         1. Plaintiff's First, Second, Third, and Seventh Claims Alleging § 1983 Claims.[5]

         It is well-established that a § 1983 claim against a municipality cannot be maintained unless a plaintiff establishes that the alleged deprivation of plaintiff's federal constitutional rights results from a “‘governmental custom, policy or usage of the municipality.'” Boans v. Town of Cheektowaga, 5 F.Supp.3d 364, 373 (W.D.N.Y. 2014) (quoting Jones v. Town of East Haven, 691 F.3d 72, 80 (2d Cir. 2012) (citing Monell v. Department of Social Services, 436 U.S. 658, 691 (1978) (“Monell”))). “‘Absent such a custom, policy, or usage, a municipality cannot be held liable on a respondeat superior basis for the tort of its employee.'” Id. Moreover, “it is not enough for a § 1983 plaintiff merely to identify conduct properly attributable to the municipality . . . plaintiff must also demonstrate that through its deliberate conduct, the municipality was the moving force behind the injury alleged.'” Boans, 5 F.Supp.3d at 373 (quoting Bd. of Cty. Comm'rs of Bryan Cty, Okla. v. Brown, 520 U.S. 397, 404 (1997)). “As such, municipal liability may be found ‘when the execution of a [municipal] government's policy or custom . . . inflicts the injury that the government as an entity is responsible for under § 1983.'” Id. at 373-74 (quoting Monell, 436 U.S. at 691). In order for Monell liability to attach based on a failure to train employees, it must be plausibly alleged that a municipality's failure to train its employees or the “policies or customs it has sanctioned, led to an independent constitutional violation.” Segal v. City of New York, 459 F.3d 207, 219 (2d Cir. 2006). Such liability may also be predicated on whether the municipality's failure to supervise or provide proper training was “so severe as to reach the level of ‘gross negligence' or ‘deliberate indifference' to the deprivation of plaintiff's constitutional rights.”

         Mere allegations are insufficient to establish such actionable policies or practices. See Mikulec v. Town of Cheektowaga, 909 F.Supp.2d 214, 228 (W.D.N.Y. 2012) (citing Bd. of Comm'rs of Bryan Cty., Okla., 520 U.S. at 404). Additionally, § 1983 relief is not available against a municipal police department which “as an administrative arm” of the municipality “cannot be sued.” Mikulec, 909 F.Supp.2d 227 n.9 (citing Hall v. City of White Plains, 185 F.Supp.2d 293, 303 (S.D.N.Y. 2002)); see also Steele v. Rochester City Police Dep't., 2016 WL 1274710, at *2 (W.D.N.Y. Apr. 1, 2016) (citing Mulvihil v. New York, 956 F.Supp.2d 425, 427 (W.D.N.Y. 2013)). Further, liability under § 1983 must be based on the personal involvement of a defendant in the alleged constitutional violation. See Spavone v. New York State Dep't. of Correctional Services, 719 F.3d 127, 135 (2d Cir. 2013) (quoting Colon v. Coughlin, 58 F.3d 865, 873 (2d Cir. 1995)). Finally, supervisory liability under § 1983 also “depends on a showing of some personal responsibility, and cannot rest on respondeat superior.” Hernandez v. Keane, 341 F.3d 137, 144 (2d Cir. 2003) (citing Al-Jundi v. Estate of Rockefeller, 885 F.2d 1060, 1065 (2d Cir. 1989)). “‘Absent some personal involvement by [the supervisory official] in the allegedly unlawful conduct of his subordinates, ' he cannot be liable under section 1983.” Hernandez, 341 F.3d at 144-45 (quoting Gill v. Mooney, 824 F.2d 192, 196 (2d Cir. 1987)). Such supervisory liability under § 1983 “can be shown in one or more of the following ways: (1) actual direct participation in the constitutional violation, (2) failure to remedy a wrong after being informed through a report or appeal, (3) creation of a policy or custom that sanctioned conduct amounting to a constitutional violation, or allowing such a policy or custom to continue, (4) grossly negligent supervision of subordinates who committed a violation, or (5) failure to act on information indicating that unconstitutional acts were occurring.” Hernandez, 341 F.3d at 145 (citing Colon, 58 F.3d at 873).

         Here, City Defendants maintain Plaintiff's allegations do not plausibly allege that the entry into Plaintiff's apartment by the Individual Defendants and consequent destruction and disposal of Plaintiff's dog and the seizure of Plaintiff's other property were caused by a municipal policy or usage, i.e., practice created, maintained or condoned by City Defendants. Defendants' Memorandum at 10. Plaintiff argues that the Complaint sufficiently alleges that because Plaintiff's dog was tethered to a sink within Plaintiff's apartment, the dog posed no threat to the Individual Defendants, and lethal force by Cook was therefore unnecessary resulting in an unconstitutional seizure of the animal. Plaintiff's Response at 13-14 (citing Complaint ¶ 30-32). See Carroll v. County of Monroe, 712 F.3d 649, 651 (2d Cir. 2013) (per curiam) (“Carroll”) (‘unreasonable killing of a companion animal constitutes unconstitutional ‘seizure' of personal property under Fourth Amendment”) (citing cases).[6] To establish, for purposes of Rule 12(c), that the Complaint plausibly alleges the existence of a policy or practice of the unjustified shooting and disposal of a dog during a mistaken Buffalo police drug raid such as Plaintiff alleges, Plaintiff asserts that (1) without justification Defendant Cook shot Plaintiff's dog during an illegal search of Plaintiff's apartment as part of a narcotics investigation in furtherance of a search warrant stale under state law and which failed to sufficiently described the target premises (Complaint ¶ 21), (2) that Cook has routinely, estimated by Plaintiff at 100 instances, shot other dogs under similar circumstances, i.e., while the dog was tethered or for other reasons posed no threat to police during similar drug raids (id. ¶ 32), (3) other Buffalo police officers in drug raids similar to the instant case routinely shoot and improperly dispose of dogs present on the premises to be searched (id. ¶ 35), and (4) the “sociopathic” killing and disposal of Plaintiff's dog by Cook resulted from the City Defendants' “customary practices” to destroy evidence of such unconstitutional conduct of which Individual Defendants' violations were a “part” (id. ¶ 56). Thus, fairly read and drawing all inferences favorable to Plaintiff, the Complaint broadly asserts the existence of the prerequisite municipal policy or practice based solely on Plaintiff's assertion that in the course of executing defective narcotics warrants Cook has repeatedly killed without justification and, along with other police officers, improperly disposed of dogs during drug raids within the City of Buffalo, and that other Buffalo police officers routinely engage in similar conduct.

         An allegation of constitutional wrongdoing by one police officer, however, does not rise to the level that such wrongdoing is the product of a policy or practice created by the municipality or a senior policy-maker like Commissioner Derenda or that the alleged constitutional violations were the result of such a policy or practice. See DeCarlo v. Fry, 141 F.3d 56, 61 (2d Cir. 1998) (“a single incident alleged in a complaint, especially if it involved only actors below the policy-making level, does not suffice to show a municipal policy” (citing Ricciuti v. New York City Transit Auth., 941 F.2d 119, 122 (2d Cir. 1991))). Although Plaintiff asserts Defendant Cook has engaged in similar unjustified dog shootings while engaged in drug raids “roughly 100 times throughout his career, ” Complaint ¶ 32, because this allegation does not specify that Cook's and other prior dog shootings by Buffalo police, as Plaintiff alleges, were all unreasonable under the circumstances in which they occurred, including whether the dogs were untethered and had not attacked Cook or the other officers, without any basis to believe such shootings were unnecessary and thus unreasonable in the circumstances, it is insufficient to plausibly attribute such alleged shootings to a municipal policy or practice. It is the unreasonable use of lethal force against a dog under all the circumstances that establishes the unconstitutional seizure and violation of the Fourth Amendment, Carroll, 712 F.3d at 651-52, and absent the plausible occurrence of such repeated constitutional violations there can be no municipal liability against City Defendants based on a policy or usage required by Monell. Segal, 459 F.3d at 219.

         Plaintiff contends that Cook's alleged habit of killing dogs, particularly pit bulls, during narcotics investigations is based on “documentary evidence, ” Dkt. 21 at 13, as is Plaintiff's estimate based on twenty-six instances allegedly involving Cook during a three-year period, id. at 13-14; however, significantly, the Complaint includes no references to such prior instances nor that in each such instance the circumstances showed the shooting to be unreasonable, i.e., that the dog did not pose a threat to the officers such that lethal force was unjustified which conceivably could constitute an unlawful seizure. See Carroll, 712 F.3d at 651-52. Nor does the Complaint reference the documentary evidence to which Plaintiff refers, and arguments presented in legal memoranda cannot substitute for a pleading sufficient to oppose a Rule 12(c) motion. See Associated Press v. All Headline News Corp., 608 F.Supp.2d 454, 464 (S.D.N.Y. 2009) (“conclusory assertions in a memorandum of law are not a substitute for plausible allegations in a complaint”). Plaintiff also relies on an August 4, 2016 article in a free local newspaper describing examples of police unnecessarily shooting dogs during drug raids in Buffalo as supporting Plaintiff's assertion that such unnecessary shootings were a Buffalo police “policy.” See Plaintiff's Response at 14 (referencing Plaintiff's Exh. N at 4). However, the Complaint makes no mention of the article, see Complaint (passim), and does not attempt to identify the source of such a generalized assertion or attribute it to City Defendants, despite the fact that information in newspaper articles may provide support for meeting the plausibility standard. See Bible v. United Student Aid Funds, Inc., 799 F.3d 633, 640 n. 17 (7th Cir.) (plaintiff may rely in opposition to Rule 12(b)(6) motion on newspaper article attached to complaint not as evidence but to “illustrate facts the party could be prepared to prove at the appropriate stage of proceedings”), reh'g denied, 807 F.3d 839 (7th Cir. 2015), cert. denied, ___ U.S. ___, 136 S.Ct. 1607 (2016); Hunter v. City of New York, 35 F.Supp.3d 310, 324-25 (E.D.N.Y. 2014) (same). Thus, contrary to Plaintiff's contention, Plaintiff's allegations that Cook and other Buffalo police officers engaged in shooting dogs in the course of narcotics raids based on defective or non-defective no-knock warrants without alleging all such shootings were unreasonable because the dogs involved did not attack the officers or otherwise pose a threat warranting defensive lethal force by the officers, do not plausibly allege constitutional violations, cognizable under Carroll, of which policymakers of the City of Buffalo like Derenda must have been aware yet failed to prevent or had adopted or knowingly condoned.[7] In order to sustain the Complaint as to whether all alleged killings of dogs in the course of drug raids, mistaken or not, were unreasonable and thus unconstitutional seizures, the court would be required to believe that in all of the instances, specifically the estimated 100 shootings allegedly by Defendant Cook, to which the Complaint refers, the dogs involved did not attack Cook or the officers involved in the executing the warrant or otherwise posed no threat because, for example, as in this case, the dog was alleged to have been sufficiently tethered and thus unable to become a threat to officers executing a search warrant. See Carroll, 712 F.3d at 650 (plaintiff's dog “aggressively” approached defendant when defendant the dog shot at close range warranting defendant's use of lethal force); Robinson v. Pezzat, 818 F.3d 1, 13 (D.C. Cir. 2016) (police reports which “invariably” indicate dogs shot by police attacked the police provide no evidence that defendant municipality had “notice of a pattern of unconstitutional conduct adequate to prove deliberate indifference”). As such, Plaintiff's allegations do not remotely approach the degree of deliberate indifference to a pattern of known constitutional violations necessary to establish Monell liability based on an alleged failure to provide adequate training or supervision as Plaintiff alleges in Plaintiff's Second Claim. See Owens v. Haas, 601 F.2d 1242, 1246, cert. denied, 444 U.S. 980 (1979).

         In the absence of any reasonable specificity as to the identity of the source of newspaper reports to which Plaintiff alludes that police shootings of dogs during search warrant executions by Buffalo police were done as a matter of “policy, ” such assertions, even if they had been included or referenced in the Complaint, could not be illustrative of facts Plaintiff would be prepared to prove, Bible, 799 F.3d at 640 n. 17; Hunter, F.Supp.3d at 324-25, because of the doubtful availability of such unidentified source, and therefore cannot suffice to plausibly show that such a policy for Monell purposes exists. The same is true with respect to Plaintiff's unsupported assertions that such unjustified shootings were “widespread, ” Dkt. 21 at 13, an assertion which, significantly, is not alleged in the Complaint and as a contention by counsel cannot satisfy the plausibility standard to state a valid claim. See Charles v. Levitt, 2016 WL 3982514, at **7-8 (S.D.N.Y. July 21, 2016) (considering counsel's opinion, including “counsel's baseless perception” set forth as an allegation in an amended complaint, to be “utterly irrelevant” such that the amended complaint did not state a claim), appeal docketed, Nos. 16-2889 and 16-2902 (2d Cir. Aug. 19, 2016). Similarly, Plaintiff attempts to bolster Plaintiff's allegations that circumstantial evidence exists to show Defendant Derenda's knowledge of Plaintiff's asserted Fourth Amendment violations based on unwarranted shooting of dogs during search warrant executions by referring to police records, over a four-year period (2011-2014), of police conduct involving such shootings, Plaintiff's Exh. M, indicating police engaged in narcotics search warrant executions were required to shoot dogs at the premises, primarily pit bulls, which had attacked the officers. See Plaintiff's Exh. M (passim). However, these records are also not referenced in the Complaint and Plaintiff's characterization, Dkt. 21 at 14, that the records constitute results of “sham[ ]” investigations does not provide any indication pointing to the availability of evidence in the reported instances that Buffalo police had used unnecessary force and that City Defendants, particularly Commissioner Derenda, had knowledge of widespread Fourth Amendment violations involving shooting dogs during drug raids. See Robinson, 818 F.3d at 13 (official reports showing police shot dogs after being attacked provide no evidence that defendant municipality had knowledge of pattern of unconstitutional conduct sufficient to prove deliberate indifference); see also Charles, 2016 WL 3982514, at **7-8 (counsel's opinion does not provide basis to satisfy pleading of claim ...


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