DECISION AND ORDER INTRODUCTION Plaintiffs Kennetha Short and Pernell Jones, Sr. (“Plaintiffs”) are the administrators of the estate of Tyshon Jones (“Jones”), who was shot and killed by officers of the Rochester Police Department (“RPD”) in 2021. Plaintiffs assert claims against defendant City of Rochester (the “City”) pursuant to Title II of the Americans with Disabilities Act (“ADA”), 42 U.S.C. §§12131, et seq., the Rehabilitation Act (“RA”), 29 U.S.C §§794 et seq., and 42 U.S.C. §1983, as well as state law claims for battery, assault, and wrongful death. (Dkt. 1). Presently before the Court is Defendant’s motion to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6). (Dkt. 8). For the reasons that follow, Defendant’s motion is denied.1 FACTUAL BACKGROUND The following facts are taken from the allegations in Plaintiffs’ complaint. (Dkt. 1). As is required at this stage of the proceedings, Plaintiffs’ allegations are treated as true. Jones was “a young Black man with mental illness.” (Id. at 1). He had been diagnosed with post-traumatic stress disorder, anxiety, and borderline personality disorder, and his mother “also believes he exhibited signs of schizophrenia.” (Id. at 29). At approximately 4:00 p.m. on March 9, 2021, Jones was observed walking around the Town of Gates, just outside the City, without any shoes. (Id. at 35). A security guard at a residential building, seeing that Jones was visibly distressed, called the police. (Id.). Gates police brought Jones to a homeless shelter on Hobart Street in the City. (Id. at 36). Jones was provided with shoes and granted entry. (Id.). He spent the rest of that afternoon and most of the evening at the Hobart Street shelter. (Id.). Jones began experiencing acute mental distress and voluntarily left the Hobart Street shelter around midnight on March 10, 2021. (Id. at 37). By 2:00 a.m., he had arrived at the Open Door Mission (the “Mission”), a shelter located at 210 West Main Street in the City. (Id. at 38). The Mission is a not-for-profit organization that provides emergency food and services to the City’s homeless community. (Id.). Many of the individuals whom the Mission serves suffer from mental illness, and the RPD is aware of this fact. (Id. at
38-39). When Jones arrived at the Mission, he was greeted by employee Allen Woodruff (“Woodruff”). (Id. at 40). Woodruff opened the door and Jones walked inside to the kitchen, where he grabbed “a bucket of ordinary kitchen knives used for food preparation at the shelter[.]” (Id.). Jones then left, without encountering any other guests or attempting to harm anyone. (Id.). Woodruff called the police and reported that Jones had taken knives from the Mission. (Id.). Several nearby RPD officers, “including Officers Drake, Audrey Jackson, Sir Glynn, and Jared Carello,” were dispatched to the scene and arrived shortly before 3:00 a.m. (Id. at 42). Officer Drake located Jones, who was in severe mental distress, at approximately 3:03 a.m. (Id. at 44). Officer Drake reported to dispatch that Jones was at the intersection of Cascade Drive and Industrial Street and was “actively cutting himself.” (Id. at 44). At this time, no civilians other than Jones were on the street, and Officer Drake was aware of that fact. (Id. at 45). The responding RPD officers lacked the appropriate equipment to engage with Jones in light of his mental state. (Id. at 46). “Acknowledging this, a fellow officer said to Officer Drake, ‘just get in your car, Drake, and let’s back off.’” (Id.). However, Officer Drake, flanked by Officers Glynn and Jackson, surrounded Jones and shone bright lights in his eyes while pointing their guns at him. (Id.). Jones was in clear distress and experiencing a severe mental health episode. (Id. at 47). Jones stated that he was dangerous and begged the officers to shoot him, telling them that if they did not kill him, he would have to kill them “for Jesus.” (Id.). Officers Drake, Glynn, and Jackson shouted commands at Jones, including telling him to drop the knife he had in his hand, which he was using to cut himself. (Id. at 49). Jones did not acknowledge their requests, but instead began to walk towards Officer Drake. (Id.). As Jones continued walking towards Officer Drake, who was on the sidewalk at the time, Officer Drake fired five fatal shots, striking Jones once in the chest, twice in the abdomen, once in the groin, and once in the arm. (Id. at 50). Jones was transported to the University of Rochester Medical Center, where he was pronounced dead by 4:30 a.m. (Id. at 54). PROCEDURAL BACKGROUND Plaintiffs filed the complaint on June 8, 2022. (Dkt. 1). Defendant filed the instant motion to dismiss on June 26, 2022. (Dkt. 4). Defendant subsequently filed two corrected memoranda of law in support of its motion. (Dkt. 6; Dkt. 7). Plaintiffs filed their response on July 18, 2022. (Dkt. 8). Defendant filed its reply on July 25, 2022. (Dkt. 9). With the Court’s permission (Dkt. 11), Plaintiffs filed a sur-reply on August 3, 2022 (Dkt. 12). DISCUSSION I. Legal Standard “In considering a motion to dismiss for failure to state a claim pursuant to Rule 12(b)(6), a district court may consider the facts alleged in the complaint, documents attached to the complaint as exhibits, and documents incorporated by reference in the complaint.” DiFolco v. MSNBC Cable L.L.C., 622 F.3d 104, 111 (2d Cir. 2010). A court should consider the motion by “accepting all factual allegations as true and drawing all reasonable inferences in favor of the plaintiff.” Trs. of Upstate N.Y. Eng’rs Pension Fund v. Ivy Asset Mgmt., 843 F.3d 561, 566 (2d Cir. 2016), cert. denied, 137 S. Ct. 2279 (2017). To withstand dismissal, a claimant must set forth “enough facts to state a claim to relief that is plausible on its face.” Bell Atl. 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.” Turkmen v. Ashcroft, 589 F.3d 542, 546 (2d Cir. 2009) (quoting Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)). “While a complaint attacked by a Rule 12(b)(6) motion to dismiss does not need detailed factual allegations, a plaintiff’s obligation to provide the grounds of his entitle[ment] to relief requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do.” Twombly, 550 U.S. at 555 (internal quotations and citations omitted). “To state a plausible claim, the complaint’s ‘[f]actual allegations must be enough to raise a right to relief above the speculative level.’” Nielsen v. AECOM Tech. Corp., 762 F.3d 214, 218 (2d Cir. 2014) (quoting Twombly, 550 U.S. at 555). II. Request to Submit Video Evidence to the Court In connection with its motion to dismiss, the City submitted to the Court a letter from counsel stating: We believe that the Court can decide the motion based solely on the Complaint and the stipulations of fact therein. However, we believe that the video footage, which is in the possession of Plaintiffs and has been widely viewed, is dispositive evidence in this case. Therefore, Defendants [sic] request permission to submit same to the Court in support of its motion to dismiss. Should the Court not be inclined to view the video at this juncture, Defendant respectfully requests that the Court convert the current motion into a motion for summary judgment and permit the City to provide the relevant videos as exhibits under separate cover. (Dkt. 4-2). In its memorandum of law, Defendant argues that the Court can consider video footage of the RPD’s encounter with Jones on March 10, 2021, in connection with the instant motion to dismiss “[b]ecause extrinsic video evidence is repeatedly referenced in the Complaint” and because “the Complaint does not challenge the veracity/authenticity of any [of] the video evidence concerning the subject incident.” (Dkt. 7 at 3). The Court disagrees. Defendant has cited to no portion of the complaint where extrinsic video evidence of the incident at issue is referenced, nor has the Court found any such reference in its own review of the complaint. While the complaint references video footage of other incidents involving the RPD (see, e.g., Dkt. 1 at
