DECISION AND ORDER INTRODUCTION This action was brought by Shenea James (“Plaintiff”), individually and as administrator of the estate of Dedrick James (“James”), in New York State Supreme Court, Monroe County, in December 2022. The original complaint asserted seven claims arising out of the death of James on September 15, 2021, when he was fatally shot during the attempted execution of an arrest warrant in Rochester by law enforcement personnel. The original complaint named six defendants: the City of Rochester (“City”), Rochester Police Department (“RPD”) Officer William Baker, RPD Investigator Richard Arrowood, Monroe County Sheriff Todd Baxter, Monroe County Sheriff’s Office (“MCSO”) Sergeant Christian DeVinney, and New York State Police (“NYSP”) Investigator Jeffrey Ulatowski. Plaintiff also asserted claims against other, as yet unidentified members of the RPD, MCSO and NYSP. The action was removed to this Court on January 20, 2023 by defendants Baker, DeVinney and Ulatowski, on grounds that are discussed below. Prior to the removal of the action, defendant Baxter had moved to dismiss the complaint, and that motion was still pending at the time the action was removed to this Court. (Dkt. #1-2 at 21.) Following removal, Baker, DeVinney and Ulatowski filed a motion in this Court to substitute the United States of America (“U.S.”) as defendant in their place, and to dismiss the claims against them for lack of subject matter jurisdiction pursuant to Rule 12(b)(1) of the Federal Rules of Civil Procedure. (Dkt. #3.) In addition, defendant Baxter filed a motion to dismiss the claims against him, based on his previously-filed motion in state court. (Dkt. #5.) After those motions were filed, plaintiff filed a first amended complaint (“FAC”). (Dkt. #6.) The FAC adds the U.S. as a defendant, as well as Deputy United States Marshal (“DUSM”) Carlton Smith. The FAC also doubles plaintiff’s claims, to fourteen. After the FAC was filed, defendants Baker, DeVinney, Ulatowski, Smith and the U.S. (“federal defendants”) filed a motion to substitute the U.S. as defendant in place of those individual defendants, and to dismiss all of plaintiff’s claims against those individual defendants, pursuant to Rules 12(b)(1) and 12(b)(6). (Dkt. #7.) Defendants Arrowood and the City have answered the amended complaint. (Dkt. #9.) Plaintiff has filed responses to the motions to dismiss. (Dkt. #12, #13.) BACKGROUND The complaint alleges that on September 15, 2021, the individual defendants (with the exception of Baxter) were involved in the execution of a warrant for Dedrick James’s arrest.1 Prior surveillance had indicated that he lived at 6 Vinewood Place in Rochester, with his grandmother, Betty Irvin. According to the complaint, on the morning of September 15, a task force was assembled to carry out the execution of the warrant. Defendants Ulatowski and Arrowood, who were members of the task force, surveilled the house and confirmed that James and Irvin were the only people inside. Ulatowski radioed the other members of the task force and told them to prepare to attempt the arrest. At around 10:35 a.m., the defendants and other task force members arrived at 6 Vinewood Place. NYSP Investigator Ulatowski, RPD Officer Baker, and DUSM Smith walked to the front door and rang the doorbell. James’s grandmother, Irvin, answered the door. The complaint alleges that the defendants saw James inside, pushed Irvin aside, and forcibly entered the home. They chased James into a bathroom, where Ulatowski seized James and began struggling with him. During the struggle, a gun went off, and James was fatally wounded. The complaint alleges with respect to Baker, Smith and Ulatowski that each of them shot and killed James, and that each of them caused James to be shot. FAC
62-67. It is not apparent from the complaint whether plaintiff means that literally all three of them shot James, or whether those allegations are pleaded in the alternative. The complaint also does not allege whether the fatal shot came from one of the officers’ firearms, or from James’s own handgun.2 The complaint alleges that James’s death would not have occurred but for defendants’ failure to devise a “safe plan” beforehand for arresting him. FAC 71. Plaintiff alleges that the task force members “owed a special duty to Mr. James when they planned and executed the arrest warrant,” and that they breached that duty by negligently planning and carrying out the execution of the warrant. Plaintiff alleges that defendants should have “devise[d] a non-lethal plan” for arresting James if he was armed, although it is not clear from the complaint what such a plan would have consisted of. FAC 80. Plaintiff also alleges that defendants should have considered other (allegedly) safer options than entering James’s house, such as waiting for him to exit the home and arresting him outside. FAC 82. (The complaint does not explain why that would have been safer.) The complaint further alleges that the task force members were inadequately trained regarding the execution of arrest warrants. Plaintiff contends that such training was primarily the responsibility of the MCSO, which failed to adequately instruct deputies and task force members how to plan and execute warrants safely. Plaintiff further alleges that the attempt to arrest James was “a clearly state (not federal) operation,” and that the United States Marshal Service (“USMS”) “only had a de minimis involvement….” FAC
