MEMORANDUM AND ORDERINTRODUCTION Plaintiff John Leppert (“Plaintiff”) brought the instant action on behalf of himself and as guardian of his incapacitated daughter, Alyssa Lepert, against Defendants Suffolk County (“County”), the Suffolk County Police Department (“SCPD”), former SCPD Commissioner Edward Webber (“Webber”), former SCPD Commissioner Timothy D. Sini (“Sini”), John & Jane Does 1-10, names being fictitious and presently unknown to Plaintiff and being intended to be Police Officers, supervisory personnel, and/or other employees of Suffolk County and/or the SCPD (together with all other Officers, the “Individual Defendants”), former SC District Attorney (“DA”) Thomas J. Spota (“Spota”), as County DA, and John and Jane Does 11-20, names being fictitious and presently unknown to Plaintiff and being intended to be Assistant District Attorneys, supervisory personnel and/or other Employees of Suffolk County, and/or the District Attorney of Suffolk County (collectively with all defendants, “Defendants”). Plaintiff alleges violations of the First, Fourth, and Fourteenth Amendments to the United States Constitution, 42 U.S.C. §§1983, 1988, and New York State law.Presently before the Court is Defendants’ motion to dismiss pursuant to Fed. R. Civ. P. (“Rule”) 12(b)(6) for failure to state a claim. For the reasons discussed below, the motion to dismiss is granted as to all claims.BACKGROUNDThe following relevant facts come from the Amended Complaint (“Am. Compl.”) and are assumed true for purposes of the motions to dismiss.On April 4, 2015, at approximately 4:40 p.m., Alyssa Lepert was operating a motor vehicle near Kurt Lane in Hauppauge, New York. (Am. Compl. 3.) A County police officer attempted to stop Ms. Leppert for a routine traffic infraction, at which time Ms. Leppert attempted to flee. (Id.) The police engaged in a high-speed pursuit of Ms. Leppert that lasted over three miles, “and ended when Ms. Leppert allegedly ‘lost control’ of her vehicle and crashed into a telephone pole and tree on Route 111, approximately 60 feet south of the intersection with Route 347 in Hauppauge, New York.” (Id.) Ms. Leppert was thereafter airlifted to Stony Brook Hospital. (Id. 5.) Two police officers later came to Plaintiff’s home to inform him that his daughter had been in an accident, and asked him to go to Stony Brook Hospital to identify her body. (Id. 6.) At some time, the Police Officers made unidentified false statements1 and “deliberately misled [Plaintiff] into believing that Alyssa Leppert was deceased, when in fact those defendants knew or should have known she was alive.” (Id. 50.) The Police Officers did not provide Plaintiff with any further information regarding the accident or the events that lead up to it, and to this date Defendants “have refused to provide any details with regard to the specifics of the subject incident.” (Id.)Ms. Leppert underwent numerous surgeries and was ultimately diagnosed with a traumatic brain injury. (Id. 7.) She remains in a minimally responsive state, unable to speak or “perform the most basic of tasks on her own.” (Id.) On May 28, 2015, Plaintiff filed a Notice of Claim (“Notice of Claim”) with the County “for personal injuries, mental anguish, pain and suffering and medical expenses sustained by Alyssa Leppert, and John Leppert’s loss of his parental interest in the custody, society, companionship, and affection of his daughter, due to the gross negligence of Suffolk County Police Officers[.]” (Id. 8.) The Notice of Claim alleged that the SCPD failed to properly train, supervise, and oversee its officers with regards to pursuits and the pursuit of Ms. Leppert. (Id. 9.) On September 22, 2015, the Judge Patrick J. Leis, III, of the Suffolk County Supreme Court declared Ms. Leppert an Incapacitated Person and appointed Plaintiff her Personal Needs and Property Guardian. (Id. 10.)On April 22, 2016, the Suffolk County DA charged Ms. Leppert with 9 counts, including reckless endangerment, driving while impaired, reckless driving, unlawful fleeing, driving without a valid driver’s license, failure to maintain lane, failing to stop at a traffic control device, and operating a motor vehicle without brake lights. (Id. 13.) Due to Ms. Leppert’s medical state, she was unable to be arraigned, and no discovery was taken. (Id. 14.) Moreover, Plaintiff maintains that Defendants have denied all of his requests for police reports, notes, accident scene reports, protocol reports, and any other information concerning the pursuit. (Id. 15.) Plaintiff alleges that “after the pursuit and motor vehicle accident, a conspiracy to cover up the facts of the occurrence began[,]” including a false account of the pursuit and collision that was spread from the SCPD and DA “ to other County agencies and to the press in an attempt to blame and stigmatize the victim.” (Id. 16.)Plaintiff brought the instant action on July 5, 2016. The case was reassigned to the undersigned on April 6, 2018.DISCUSSIONI. Legal StandardIn deciding a motion to dismiss under Rule 12(b)(6), a court should “draw all reasonable inferences in Plaintiff['s] favor, assume all well-pleaded factual allegations to be true, and determine whether they plausibly give rise to an entitlement to relief.” Faber v. Metro. Life Ins. Co., 648 F.3d 98, 104 (2d Cir. 2011) (internal quotation marks omitted). The plausibility standard is guided by two principles. Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citing Bell Atl. Corp. v. Twombly, 550 U.S. 544 (2007)); accord Harris v. Mills, 572 F.3d 66, 71-72 (2d Cir. 2009).First, the principle that a court must accept all allegations as true is inapplicable to legal conclusions. Thus, “threadbare recitals of the elements of a cause of action supported by mere conclusory statements, do not suffice.” Iqbal, 556 U.S. at 678. Although “legal conclusions can provide the framework of a complaint, they must be supported by factual allegations.” Id. at 679. A plaintiff must provide facts sufficient to allow each named defendant to have a fair understanding of what the plaintiff is complaining about and to know whether there is a legal basis for recovery. See Twombly, 550 U.S. at 555.Second, only complaints that state a “plausible claim for relief” can survive a motion to dismiss. Iqbal, 556 U.S. at 679. “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. The plausibility standard is not akin to a ‘probability requirement,’ but asks for more than a sheer possibility that defendant acted unlawfully. Where a 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. at 678 (quoting Twombly, 550 U.S. at 556-57) (internal citations omitted); see In re Elevator Antitrust Litig., 502 F.3d 47, 50 (2d Cir. 2007). Determining whether a complaint plausibly states a claim for relief is “a context specific task that requires the reviewing court to draw on its judicial experience and common sense.” Iqbal, 556 U.S. at 679; accord Harris, 572 F.3d at 72.II. The Parties’ ArgumentsThe Amended Complaint sets forth eight causes of action, as follows: (1) violations of 42 U.S.C. §1983 against the Individual Defendants; (2) violations of §1983 for failure to supervise and train against Webber and any other supervisory personnel; (3) a Monell claim against the County; (4) negligent infliction of emotional distress against the Individual Defendants; (5) intentional infliction of emotional distress against the Individual Defendants; (6) “chilling of the right of petition [] under the First Amendment[;]” (7) negligence against the County and the SCPD for engaging in the pursuit over a minor traffic violation; and (8) Respondeat Superior against the County.Defendants set forth nine arguments in support of their motion to dismiss: (1) Plaintiff’s claims against the individual defendants in their official capacities must be dismissed as duplicative; (2) the Amended Complaint fails to set forth a deprivation of First Amendment rights by the DA; (3) Spota is protected from liability by prosecutorial immunity; (4) Spota is immune from liability as a supervisor and administrator; (5) the §1983 claims for failure to train against Webber and Sini must be dismissed because there are no allegations of personal responsibility; (6) the §1983 claims against the County must be dismissed because there are no allegations of a municipal policy or custom; (7) the SCPD Officers are protected from suit by qualified immunity; (8) the state law claims against the individual defendants should be dismissed because New York County Law does not provide for vicarious liability; and (9) the Court should decline supplemental jurisdiction over the remaining state law claims. (Defs.’ Mem. in Supp. [ECF No. 30-3] at 4-25.)Plaintiff’s Memorandum in Opposition does not directly respond to any of Defendants’ arguments. Rather, the Memorandum devotes slightly less than two pages to the “Argument” section, simply stating that Spota’s actions were administrative rather than prosecutorial and therefore not protected by “absolute immunity,” supplemented by the comment that there are outstanding factual questions that cannot be resolved without discovery so the motion to dismiss should be denied on that basis as well. (Pl.’s Mem. in Opp. [ECF No. 30-4] at 8-10.) The Court is unclear as to whether Plaintiff does not respond to Defendants’ other arguments because he concluded that his claims lack merit. While “[P]laintiff’s failure to respond to contentions raised in a motion to dismiss claims constitutes an abandonment of those claims” the Court will briefly touch on each of Defendants’ nine arguments as they apply to Plaintiff’s eight claims, rather than dismissing the matter for this reason alone. Beider v. Retrival Masters Creditors Bureau, Inc., 146 F. Supp. 3d 465, 470 (E.D.N.Y. 2015) (quoting Youmans v. Schriro, 2013 WL 6284422, at *5 (S.D.N.Y. Dec. 3, 2013)) and cases cited therein.III. The Motion to Dismiss is Granted as to All Claims1. The Motion to Dismiss is Granted as to Count One: Violations of §1983 Against the Individual DefendantsCount One of the Complaint asserts violations of Ms. Leppert’s rights under the Fourth and Fourteenth Amendments against the “Individual Defendants,” which the Complaint defines as Webber, Sini, and the SCPD. (Am. Compl.
35, 37). Specifically, Plaintiff alleges that the Individual Defendants deprived Ms. Leppert of “the rights to be free from (a) the intentional use of unreasonable force; (b) unnecessary and wanton infliction of pain; (c) the prevention and denial of critical medical attention; and (d) the deprivation of life and liberty without due process of law.” (Id. 37.) Defendants argue that the SCPD Officers are entitled to qualified immunity on all counts.It is well-established that “[t]he doctrine of qualified immunity protects government officials ‘from liability for civil damages insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known.’” Pearson v. Callahan, 555 U.S. 223, 231 (2009) (quoting Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982)).As a preliminary matter, the Supreme Court has previously considered whether a police pursuit that ended in the motorists death constitutes a seizure under the Fourth Amendment and concluded that “[t]he Fourth Amendment covers only ‘searches and seizures,’ neither of which took place here.” Count. of Sacramento v. Lewis, 523 U.S. 833, 843 (1998) (citing California v. Hodari D., 499 U.S. 621, 626 (1991) (holding that a police pursuit in attempting to seize a person does not amount to a “seizure” under the Fourth Amendment)); see also Robinson v. Velasquez, 2010 WL 1010733, at *7 (E.D.N.Y. March 15, 2010) (quoting the same). Here, there are no allegations of a search and the police pursuit does not qualify as a seizure. Therefore, the motion to dismiss is granted as to Plaintiff’s Fourth Amendment claim against all Defendants in Count One.As to Plaintiff’s Fourteenth Amendment claim, the Supreme Court has held that “highspeed chases with no intent to harm suspects physically or to worsen their legal plight do not give rise to liability under the Fourteenth Amendment, redressible by an action under §1983.” Lewis, 523 U.S. at 854; see also Robinson, 2010 WL 1010733, at *7 (quoting the same). The Supreme Court explained that only a purpose to cause harm “unrelated to the legitimate object of arrest” will shock the conscience and give rise to a Fourteenth Amendment claim for a high-speed pursuit. Id. There are no allegations in the Amended Complaint that the SCPD Officers had a purpose to cause harm unrelated to the legitimate object of an arrest. In fact, Plaintiff concedes that Defendants had cause to pull Ms. Leppert over due to a traffic infraction. (See Am. Compl. 3.) Accordingly, all of Plaintiff’s Fourteenth Amendment claims related to the pursuit — namely the claims for unreasonable force2 and unnecessary and wanton infliction of pain — are dismissed. This leaves only Plaintiff’s claim that the Individual Defendants denied and prevented the administration of critical medical attention.There are no facts in the Amended Complaint that Ms. Leppert was denied medical attention. Rather, the Amended Complaint states that at some point after the pursuit, “Ms. Leppert was air lifted to Stony Brook Hospital, where she was treated through multiple surgeries for a variety of broken bones and internal trauma.” (Id. 5.) Accordingly, Plaintiff’s final claim under Count One is dismissed as to all Defendants.32. The Motion to Dismiss is Granted as to Count Two: Violations of §1983 for Supervisory Liability/Failure to TrainCount Two of the Amended Complaint sets forth a claim under §1983 against Defendants Webber and Sini for failure to train, and reckless disregard and deliberate indifference in supervising their subordinates. The Second Circuit has established that “a §1983 action 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)). A supervisor may be shown to be liable in 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.Id. at 145 (emphasis added); see also Brown v. Montone, 2018 WL 2976023, at *3 (S.D.N.Y. June 13, 2018) (quoting the same). Therefore, Plaintiff must plausibly allege conduct by Webber and Sini that falls into one of the five identified categories.The only reference to any action by either of these Defendants in the Amended Complaint is the allegation that Defendant “Webber negligently failed to adopt a restrictive pursuit policy, resulting in…injuries” to Ms. Leppert. (Am. Compl. 9.) The only mention of Defendant Sini is that he was appointed Acting Police Commissioner in February 2016. (See id. 11.) As there are no allegations whatsoever as to Defendant Sini’s actions or failure to act, the motion to dismiss Count Two as it is brought against Defendant Sini is granted.As to Defendant Webber, the Amended Complaint does not include any facts that can be construed to allege that Defendant Webber was directly involved, that he failed to right a wrong, that he was grossly negligent in supervising his subordinates, or that he failed to act on information indicating that unconstitutional acts were occurring. Hence, four of the five identified categories for showing supervisor liability are clearly inapplicable. The final category requires “creation of a policy or custom that sanctioned conduct amounting to a constitutional violation or allowing such a policy or custom to continue.” Hernandez, 341 F.3d at 144. This is inapplicable because the single allegation against Defendant Webber — that he failed to institute a restrictive pursuit policy — is not equivalent to creating a policy that sanctions conduct amounting to a constitutional violation.4 Accordingly, the motion to dismiss Count Two as it is brought against Defendant Webber is granted.Finally, it is somewhat ambiguous in the Amended Complaint whether Plaintiff has asserted Count Two against Defendant Spota. In an abundance of caution, Defendants argue in their motion to dismiss that prosecutorial immunity extends to Spota as a supervisor, assuming arguendo that Plaintiff has brought such a claim against him. Plaintiff’s response is that Defendant Spota’s actions were administrative and fell outside the protections of prosecutorial immunity. (Mem. in Opp. at 8.) The Supreme Court held in Van de Kamp v. Goldstein that even when training and supervision may have been administrative in nature, when that “kind of administrative obligation…is directly connected with the conduct of a trial” then the prosecutors involved in such supervision or training “enjoy absolute immunity[.]” 555 U.S. 335, 344 (2009). Here, all the conduct in question is directly related to the grand jury indictment against Ms. Leppert. As such, the motion to dismiss is granted as to Count Two as it may have been brought against Defendant Spota.3. The Motion to Dismiss is Granted as to Count Three: “Monell Liability — Against the County”Count Three of the Amended Complaint sets forth a claim for Monell liability against the County for developing and maintain a “custom, policy, and/or practice” to: (1) “engage in reckless, unnecessary, and unsupervised pursuits[;]” (2) “ conduct inadequate screening in the hiring and retention of police officers[;]” and (3) “ fail to adequately train, supervise, and discipline police officers such that the public would not be placed in unreasonable risk of being the victims of deadly and dangerous pursuits by the police.” (Am. Compl.
