OPINION AND ORDER Plaintiff Rajohine Johnson brings this action against defendants The City of Newburgh (“Newburgh”), Newburgh Police Chief Anthony Geraci, Newburgh Police Officer Kevin Jodice (together, the “Newburgh Defendants”), and The Mid Hudson News (“MHN”). Plaintiff brings claims under 42 U.S.C. §1983 and state law arising from an incident in which Jodice crashed his police car into plaintiff while he was riding his motorcycle and allegedly unlawfully searched plaintiff’s backpack while he was unconscious. Based on these events, plaintiff alleges Jodice unlawfully searched and seized plaintiff, used excessive force against him, and maliciously prosecuted him; that Jodice and Geraci denied plaintiff a fair trial and procedural due process by fabricating evidence; and that Newburgh has policies and customs of using excessive force and failing adequately to train, supervise, and discipline its employees. In addition, plaintiff brings a state-law defamation claim against Geraci, Jodice, and MHN, alleging they published false statements in a police press release and news article depicting plaintiff as a criminal. Now pending are (i) the Newburgh Defendants’ motion to dismiss the first amended complaint in part pursuant to Rule 12(b)(6);1 and (ii) MHN’s motion to dismiss the first amended complaint pursuant to Rule 12(b)(6). (Docs. ##35, 39). For the reasons set forth below, the Newburgh Defendants’ motion is GRANTED IN PART and DENIED IN PART, and MHN’s motion is GRANTED. The Court has subject matter jurisdiction pursuant to 28 U.S.C. §§1331 and 1367. BACKGROUND For the purpose of ruling on the motions to dismiss, the Court accepts as true all wellpleaded factual allegations in the first amended complaint, as well as in documents incorporated by reference in or integral to the first amended complaint, and draws all reasonable inferences in plaintiff’s favor, as summarized below. On September 7, 2021, plaintiff was driving a motorcycle towards his home in Newburgh when he noticed a vehicle following him. According to plaintiff, he was “very scared” as he “did not know who it was, and the vehicle did not indicate at any time that it was a police vehicle.” (Doc. #32 (“FAC”) 14). Next, plaintiff allegedly saw flashing lights in his rear view mirror and “tried to slow down when he felt the rear of his motorcycle tire feeling like it was hit by the car behind him, causing Plaintiff to crash and lose consciousness.” (Id.
16-17). Plaintiff alleges he later “regained consciousness at St. Luke’s Hospital where he was admitted into the ICU Unit.” (Id. 17). As a result of the crash, plaintiff allegedly “suffered a liver hematoma and contusion,” as well as fractures in his legs and pelvis. (Id. 21). Several Newburgh police officers allegedly responded to the scene of the crash, and Office Jodice “went directly to seize and search plaintiff’s back pack for [a] weapon although Plaintiff was on the floor, in pain, complaining, and crying.” (FAC 18). Plaintiff alleges the backpack was at least fifty feet away from him at this time and that he could not move because of his injuries. According to plaintiff, body camera footage shows other officers telling Jodice plaintiff did not match the description of a robbery suspect they were pursuing, which Jodice allegedly acknowledged and further stated that “he was about to call the pursuit off when the crash occurred.” (Id. 19). Plaintiff further claims that after Jodice searched plaintiff and the backpack, Jodice did not find a weapon. And plaintiff alleges Jodice “seized Plaintiff’s DNA without a warrant to compare it with DNA on the alleged pistol” he found. (Id. 38). Further, at some point on September 7, 2021, Jodice issued a Desk Appearance Ticket to plaintiff, which charged him with criminal possession of a weapon under state law, and required plaintiff to appear in Newburgh City Court on September 21, 2021, at 9:00 a.m. (FAC 28; see Doc. #46-1 (“DAT”)). Plaintiff states the criminal charges were ultimately “withdrawn and or dismissed,” but he does not detail when or why this occurred. (Id. 65). On September 8, 2021, despite officers purportedly being aware that plaintiff had been ruled out as a suspect of the robberies for which he was originally pursued, Chief Geraci and Officer Jodice issued a press release, which stated the following: On Tuesday morning 09/07/21 at approximately 0055 hrs. the Town of Newburgh had a robbery occur at a Gulf gasoline station on route 9W. A description was provided of motorcycles that had fled the scene upon police arrival. City of Newburgh Officers began to canvass the north end of the City of Newburgh and located a motorcycle committing multiple vehicle and traffic infractions in the area of South Street. Patrol Officers attempted to make contact with the operator by initiating a vehicle and traffic stop, however the operator fled north on Grand Street at a high rate of speed and subsequently crashed in the area of 1 North Street. The operator was identified as 31 year old Rajohine J. Johnson who suffered injuries as a result of the crash. He was transported to a local hospital by ambulance for treatment of his injuries. Investigating Officers located a Glock, 9mm semi-automatic handgun and a magazine to the weapon loaded with 16 rounds of 9mm ammunition at the scene of the crash. The investigation is ongoing and criminal charges related to this incident are forthcoming. Anyone with information is asked to contact the City of Newburgh Detective Division at (845) 569-7509. A criminal charge is merely an allegation that a defendant has committed a violation of the criminal law, and it is not evidence of guilt. All defendants are presumed innocent and entitled to a fair trial, during which it will be the State of New York’s burden to prove guilt beyond a reasonable doubt. (Doc. #44-1 (“Press Release”)).2 Thereafter, on September 9, 2021, MHN — a publication allegedly with “a wide circulation throughout the Mid-Hudson area, New York State, the USA, and the world” (FAC 11) — published an article regarding plaintiff’s interaction with police entitled, “Suspected robber crashes motorcycle; cops recover gun.” (Id. 26; Doc. #46-3 (“MHN Article”)). The MHN Article features a photo of a Newburgh police car, as well as a photo of a gun and magazine with the caption “Gun recovered at crash scene.” (MHN Article). The MHN Article states: NEWBURGH — Suspects in a Tuesday morning gas station robbery were apprehended by the City of Newburgh Police, according to a statement from city police. The incident began at 12:55 a.m. on September 7 in the Town of Newburgh. Sources say a Gulf Station on Route 9W in the town had been robbed and town police radioed a description of the suspects and their motorcycles to surrounding police departments. City police officers increased their presence on the north end of the city and witnessed a motorcycle matching the description committing several traffic infractions near South Street. City cops attempted to stop the biker, but he fled north on Grand Street at a high rate of speed. The rider crashed near 1 North Street. The 31-year-old rider, identified as Rajohine Johnson, was injured and transported to the hospital by ambulance. Officers located a Glock semi-automatic 9mm handgun loaded with 16 bullets at the crash scene. The investigation is ongoing and criminal charges related to this incident are forthcoming. Anyone with information is asked to contact the City of Newburgh Detective Division at (845) 569-7509. DISCUSSION I. Standard of Review In deciding a Rule 12(b)(6) motion, the Court evaluates the sufficiency of the operative complaint under “the two-pronged approach” articulated by the Supreme Court in Ashcroft v. Iqbal, 556 U.S. 662, 679 (2009).3 First, a plaintiff’s legal conclusions and “[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory statements,” are not entitled to the assumption of truth and are thus not sufficient to withstand a motion to dismiss. Id. at 678; Hayden v. Paterson, 594 F.3d 150, 161 (2d Cir. 2010). Second, “[w]hen there are well-pleaded factual allegations, a court should assume their veracity and then determine whether they plausibly give rise to an entitlement to relief.” Ashcroft v. Iqbal, 556 U.S. at 679. To survive a Rule 12(b)(6) motion, the allegations in the complaint must meet a standard of “plausibility.” Ashcroft v. Iqbal, 556 U.S. at 678; Bell Atl. Corp. v. Twombly, 550 U.S. 544, 557 (2007). A claim is facially plausible “when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Ashcroft v. Iqbal, 556 U.S. at 678. “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. (quoting Bell Atl. Corp. v. Twombly, 550 U.S. at 556). “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). “Where a document is not incorporated by reference, the court may nevertheless consider it where the complaint relies heavily upon its terms and effect, thereby rendering the document integral to the complaint.” Id. II. Section 1983 Claim Against the City of Newburgh Newburgh argues plaintiff’s Section 1983 claim against it must be dismissed because plaintiff fails to state a claim pursuant to the requirements of Monell v. Department of Social Services, 436 U.S. 658 (1978) (“Monell”). The Court agrees. A. Legal Standard Under Monell, a municipality is liable under Section 1983 only “when execution of a government’s policy or custom, whether made by its lawmakers or by those whose edicts or acts may fairly be said to represent official policy, inflicts the [plaintiff's] injury.” 436 U.S. at 694. Thus, to assert a Section 1983 claim against a municipality, the plaintiff must show the existence of an official policy or custom causing injury and a direct causal connection between the policy or custom and the deprivation of a constitutional right. Jones v. Town of East Haven, 691 F.3d 72, 80-81 (2d Cir. 2012). A plaintiff may satisfy the “policy or custom” requirement by alleging one of the following: (i) “a formal policy officially endorsed by the municipality”; (ii) “actions taken by government officials responsible for establishing the municipal policies that caused the particular deprivation in question”; (iii) “a practice so consistent and widespread that, although not expressly authorized, constitutes a custom or usage of which a supervising policy-maker must have been aware”; or (iv) “a failure by policymakers to provide adequate training or supervision to subordinates to such an extent that it amounts to deliberate indifference to the rights of those who come into contact with the municipal employees.” Brandon v. City of New York, 705 F. Supp. 2d 261, 276-77 (S.D.N.Y. 2010). “While Monell claims are not subject to a ‘heightened’ pleading standard beyond that defined in Rule 8(a)(2), such claims nevertheless must meet the plausibility requirements of” Bell Atlantic Corp. v. Twombly, 550 U.S. at 572, and Ashcroft v. Iqbal, 556 U.S. at 678. Guzman v. United States, 2013 WL 5018553, at *4 (S.D.N.Y. Sept. 13, 2013) (denying motion for partial reconsideration) (quoting Leatherman v. Tarrant Cnty. Narcotics Intel. & Coordination Unit, 507 U.S. 163, 168 (1993)). “In other words, boilerplate allegations will not suffice.” Id. at *3. “The allegations that [a defendant] acted pursuant to a ‘policy,’ without any facts suggesting the policy’s existence, are plainly insufficient.” Missel v. Cnty. of Monroe, 351 F. App’x 543, 545 (2d Cir. 2009) (summary order). B. Analysis Here, plaintiff alleges Newburgh (i) “failed to train and supervise its officers in the amount of force needed to make arrests, and detain criminal suspects and also in denying fair trial to criminal suspects” (FAC 99); (ii) “was deliberately indifferent in the training” of Chief Geraci and Officer Jodice “concerning the use of excessive force and the denial of fair trial to criminal suspects” (id. 100); (iii) “as a policymaker, knew, and had reason to know to a moral certainty that its employees would be facing the use of force in arresting, detaining, and filing criminal charges against criminal suspects” (id. 101); and (iv) “failed to train, to supervise, and discipline its employees” and “was deliberately indifferent to the rights of the population” of Newburgh including those of plaintiff. (Id. 104). In addition, plaintiff alleges Newburgh police employees have previously “mishandled situations that involved the use of excessive force in making arrest[s], detaining criminal suspects and[/]or denying fair trial to presumed innocent criminal suspect[s].” (FAC 103). In support, plaintiff cites eleven cases against Newburgh, each of which involved allegations of excessive force. (See id.). The two most recent of these cases were commenced in 2013, and the rest were filed between 2005 and 2009. Regarding Newburgh’s alleged failure to train and supervise officers and alleged deliberate indifference to citizens’ rights, all of plaintiff’s allegations are “boilerplate assertion[s]” which do not “ allege a specific deficiency in the municipality’s training,” and thus are insufficient to state a claim for municipal liability. See Rivera v. Westchester Cnty., 488 F. Supp. 3d 70, 78 (S.D.N.Y. 2020). Likewise plaintiff’s allegations regarding prior conduct by Newburgh police employees are insufficient. Such allegations are limited to citations to other cases in this district involving Newburgh police, all of which concern arrests that occurred over ten years ago and at least eight years before plaintiff’s arrest. Plaintiff’s “reference to [these] other cases involving allegedly similar unlawful conduct without any allegations as to the ultimate disposition of those lawsuits is insufficient to allege a practice so widespread and persistent as to amount to a policy or custom” of Newburgh. Pryor v. City of New York, 2018 WL 4538904, at *4 (S.D.N.Y. Sept. 21, 2018); see, e.g., Walker v. City of New York, 2015 WL 4254026, at *9 (S.D.N.Y. July 14, 2015) (allegations regarding thirty-six lawsuits involving purportedly false arrests over thirteen years “insufficient to plausibly support an inference of a widespread custom”); Tieman v. City of Newburgh, 2015 WL 1379652, at *17 (S.D.N.Y. Mar. 26, 2015) (allegations regarding thirteen excessive force incidents over four years did not “plausibly demonstrate that the use of excessive force during arrest was so frequent and pervasive to constitute a custom”). And regardless, the Court may only take judicial notice of filings in other actions and thus, “[t]he fact that other plaintiffs have initiated other lawsuits against” Newburgh does not establish it “committed the wrongful conduct alleged.” Pryor v. City of New York, 2018 WL 4538904, at *5. Accordingly, plaintiff’s Monell claim against Newburgh must be dismissed. III. Unlawful Search Claim Jodice argues plaintiff fails to state a Fourth Amendment unreasonable search and seizure claim against him because plaintiff fails plausibly to allege any harm or invasion of privacy. The Court disagrees. A. Legal Standard The Fourth Amendment, which applies to the states through the Fourteenth Amendment, prohibits “unreasonable searches and seizures.” U.S. Const. amend. IV. It protects that which a person seeks to preserve as private, even in an area accessible to the public. See Katz v. United States, 389 U.S. 347, 351 (1967). The expectation of privacy must be one that “society is prepared to consider reasonable.” O’Connor v. Ortega, 480 U.S. 709, 715 (1987). “In any §1983 claim predicated on the Fourth Amendment, the first step is to determine whether there has been a constitutionally cognizable search or seizure.” Velasquez v. City of New York, 2012 WL 5879484, at *4 (E.D.N.Y. Nov. 21, 2012) (citing Medeiros v. O’Connell, 150 F.3d 164, 167 (2d Cir. 1998)). A Fourth Amendment “search” occurs when an “individual manifest[s] a subjective expectation of privacy in [a] searched object, and society is willing to recognize that expectation as reasonable.” Kyllo v. United States, 533 U.S. 27, 27-28 (2001). A Fourth Amendment “seizure” occurs when police detain an individual under circumstances in which a reasonable person would believe he or she is not “free to leave.” United States v. Mendenhall, 446 U.S. 544, 554 (1980). “Warrantless searches and seizures are per se unreasonable under the Fourth Amendment — subject only to a few specifically established and well-delineated exceptions.” O’Rourke v. Huff, 43 F. App’x 436, 438 (2d Cir. 2002) (summary order) (quoting Katz v. United States, 389 U.S. at 357). B. Analysis Plaintiff alleges he lost consciousness at the time of the crash, and only regained consciousness when he awoke at the hospital. (FAC 17). Plaintiff also alleges that, after the crash, he was “on the floor, in pain, complaining, and crying,”4 when Officer Jodice “went directly to seize and search Plaintiff’s back pack for a weapon,” notwithstanding that the backpack was allegedly at least fifty feet away from plaintiff (who could not move because of the pain), no weapon was found on plaintiff’s person, and Jodice allegedly already determined plaintiff did not match the description of a robbery suspect the police were seeking. (Id. 18). Drawing all reasonable inferences in plaintiff’s favor, he plausibly alleges a claim based on the search of his backpack. A person generally manifests an expectation of privacy when she “vigilantly protects the right to exclude others.” Gudema v. Nassau Cnty., 163 F.3d 717, 722 (2d Cir. 1998). Courts have recognized a reasonable expectation of privacy in a closed, opaque bag. New Jersey v. T.L.O., 469 U.S. 325, 337 (1985) (“[T]he Fourth Amendment provides protection to the owner of every container that conceals its contents from plain view.”); Bond v. United States, 529 U.S. 334, 338-39 (2000) (defendant had reasonable expectation of privacy in opaque bag he placed directly above his seat on a bus). Thus, construing the complaint most favorably to plaintiff, he plausibly alleges Officer Jodice invaded plaintiff’s reasonable expectation of privacy in his backpack, without a warrant and allegedly without probable cause or reasonable suspicion. Although it is possible plaintiff’s being unconscious following the motorcycle crash could provide exigent circumstances justifying Jodice’s search of the backpack to identify him under an emergency exception, the Court cannot conclude the search was reasonable as a matter of law. See, e.g., United States v. Dunavan, 485 F.2d 201, 203-05 (6th Cir. 1973) (affirming conviction where police searched a locked briefcase in an attempt to identify an unconscious individual and recognizing “a legitimate life-saving purpose may provide another example of the exigent circumstances which excuse failure to follow the warrant requirements of the Fourth Amendment”). Accordingly, plaintiff’s Fourth Amendment claim based on the search of his backpack may proceed.5 IV. Malicious Prosecution Claim Jodice argues plaintiff fails to state a malicious prosecution claim against him because plaintiff fails adequately to allege (i) a criminal proceeding actually was initiated, and (ii) a restraint on his liberty. The Court agrees plaintiff fails plausibly to allege a restraint on his liberty. A. Legal Standard Section 1983 provides a claim for malicious prosecution, the elements of which are borrowed from state law. Cook v. Sheldon, 41 F.3d 73, 80 (2d Cir. 1994). Under New York law, to state a malicious prosecution claim, a plaintiff must plausibly allege “(1) the initiation or continuation of a criminal proceeding against plaintiff; (2) termination of the proceeding in plaintiff’s favor; (3) 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). Further, “[b]ecause a malicious prosecution claim under §1983 is grounded in the Fourth Amendment, the plaintiff must also establish another element in addition to the state tort requirements: a post-arraignment deprivation of liberty that rises to the level of a constitutional ‘seizure.’” Coleman v. City of New York, 688 F. App’x 56, 57-58 (2d Cir. 2017) (summary order). B. Analysis Plaintiff alleges Jodice maliciously prosecuted him beginning on September 7, 2021, when Jodice “drafted the accusatory instrument and signed” a DAT charging plaintiff with “criminal possession of a weapon in the Third, and Fourth Degree,” which were “baseless” charges. (FAC
