Lettieri vs. Gaska, et al

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK
_____________________________________________
DAVID C. LETTIERI,
Plaintiff,
3:24-CV-0102
v. 	(GTS/ML)
DAVID GASKA, et al.,
Defendants.
_____________________________________________
APPEARANCES: 	OF COUNSEL:
DAVID C. LETTIERI
Plaintiff, Pro Se
Devens Federal Medical Center
Post Office Box 879
Ayer, Massachusetts 01432
MIROSLAV LOVRIC, United States Magistrate Judge
REPORT and RECOMMENDATION
I. 	BACKGROUND
A. 	Procedural History
On April 25, 2025, the undersigned issued a report and recommendation that thoroughly
outlined the procedural history in this matter to date. (Dkt. No. 56 at 2-3.) On August 18, 2025,
District Judge Glenn T. Suddaby accepted and adopted the undersigned’s report and
recommendation in its entirety. (Dkt. No. 63.) Judge Suddaby granted Plaintiff leave to amend
his claims against Defendants Gaska, Withers, Maston, Broome County Humane Society,
Broome County Sheriffs, Harting, Brown, Broome County Sheriff Does #1 through #5,
Bonanno, Tokaish, Garver, Hockwater, Schidmet, Briegueal, FBI Agents #1 through #6, New
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York State Trooper Doe #1, Town of Colesville, Daniels, Wyoming County Sheriffs, and
McGunnis. (Id.) On September 26, 2025, Plaintiff filed a Third Amended Complaint, which is
currently pending before the Court for a review pursuant to 28 U.S.C. § 1915A. (Dkt. No. 69.)
B. 	Third Amended Complaint
Construed as liberally1 as possible, Plaintiff’s Third Amended Complaint appears to
allege violations of Plaintiff’s rights by Defendants Broome County, Wyoming County Sheriffs,
David Gaska, Karen Maston, the Broome County Humane Society, Joel L. Daniels, Michael
Hockwater, Eric Schidmet,2 Broome County District Attorney Office, Broome County Sheriff
Doe #1, Broome County Sheriff Doe #2, Broome County Sheriff Doe #3, Federal Agent Doe #1,
Federal Agent Doe #2, Federal Agent Doe #3, Federal Agent Doe #4, Federal Agent Doe #5,
Federal Agent Doe #6, Miroslav Lovric, Town of Colesville, Paul Powell, Department of Justice,
Bradley McGunnis, Paul E. Bonanno (also known as Pauly B), Megan A. Tokaish,3 Federal
Bureau of Investigation, Randall E. Garver, Jenelle Briegueal,4 Leon Brown, Benjamin Harting,5
1 	The court must interpret pro se complaints to raise the strongest arguments they suggest.
Soto v. Walker, 44 F.3d 169, 173 (2d Cir. 1995) (quoting Burgos v. Hopkins, 14 F.3d 787, 790
(2d Cir. 1994)).
2 	It is unclear whether the spelling of this defendant’s last name is Schidmet or Schmict.
(Compare Dkt. No. 39 at 1, with Dkt. No. 69 at 2.) For consistency, the undersigned refers to
this individual as “Defendant Schidmet.”
3 	It is unclear whether the spelling of this defendant’s last name is Tokaish or Tokiash.
(Compare Dkt. No. 39 at 1, with Dkt. No. 69 at 3.) For consistency, the undersigned refers to
this individual as “Defendant Tokaish.”
4 	It is unclear whether the spelling of this defendant’s last name is Briegueal or Brigueal.
(Compare Dkt. No. 39 at 1, with Dkt. No. 69 at 3.) For consistency, the undersigned refers to
this individual as “Defendant Briegueal.”
5 	It is unclear whether the spelling of this defendant’s last name is Hurting or Harting.
(Compare Dkt. No. 39 at 1, with Dkt. No. 69 at 3.) For consistency, the undersigned refers to
this individual as “Defendant Harting.”
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New York State Troopers, New York State Trooper Doe, Diana Withers,6 and Lawrence Joseph
Vilardo (collectively “Defendants”).7 (See generally Dkt. No. 69.)
The Third Amended Complaint alleges that on November 5, 2020, Plaintiff was taken
from his property while government agents conducted a search in violation of Fed. R. Crim. P.
41. (Dkt. No. 69 at 4.) Plaintiff alleges that he was informed that his lawyer was on the way and
Defendants Garver, Hockwater, and McGunnis “assaulted and threatened [Plaintiff] with their
guns.” (Id. at 4-5.)
Plaintiff alleges that he did not authorize any agent to give his house keys to anyone “in
which [Defendant] Schidmet had done.” (Id. at 5.) Plaintiff alleges that there have been a series
of burglaries at his house in violation of his rights. (Id.)
Plaintiff alleges that the undersigned makes it impossible to seek justice because a
lawsuit must be “‘approved’ which denies access to the courts and [violates Plaintiff’s] First
[A]mendment right to redress the government.” (Dkt. No. 69 at 5.)
The Third Amended Complaint alleges that Defendant Broome County Humane Society
was banned from Plaintiff’s house after an incident on August 11, 2020, during which,
Defendant Gaska killed some of Plaintiff’s animals including rats, guinea pigs, and rabbits. (Id.)
Plaintiff alleges that the undersigned “doesn’t understand law which this was just a fact of
6 	It is unclear whether the spelling of this defendant’s last name is Withers or Wither.
(Compare Dkt. No. 39 at 1, with Dkt. No. 69 at 3.) For consistency, the undersigned refers to
this individual as “Defendant Withers.”
7 	The Clerk of the Court is directed to add the following individuals and entities to the
docket as defendants in this action: (1) Broome County, (2) Broome County District Attorney’s
Office, (3) Miroslav Lovric, and (4) Lawrence Joseph Vilardo. (Dkt. No. 69 at 2-3.) The Third
Amended Complaint appears to refer to individuals previously identified as FBI Agents #1
through #6 as Federal Agent Doe #1 through #6. (Compare Dkt. No. 39 at 1, with Dkt. No. 69 at
2-3.) In addition, the Third Amended Complaint does not assert any claims against the Broome
County Sheriffs, Broome County Sheriff Doe #4, or Broome County Sheriff Doe #5 and those
parties should be terminated from this action. (See generally Dkt. No. 69.)
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matter.” (Id.) Plaintiff alleges that he brought another lawsuit regarding Defendant Gaska’s
wrongful killing of Plaintiff’s cat. (Id.)
Plaintiff asserts that this matter is about his female Pomeranian dog that was wrongfully
taken without a warrant. (Dkt. No. 69 at 5.) Plaintiff alleges that on August 11, 2020, Defendant
Gaska tried to sexually assault the female Pomeranian dog. (Id. at 6.) Plaintiff alleges that on
May 17, 2023, Defendant Garver admitted that he deleted the security footage of Defendant
Gaska’s acts on August 11, 2020. (Id.)
Plaintiff alleges that Defendant Powell did not issue a search warrant to take his
Pomeranian dog on November 5, 2020. (Dkt. No. 69 at 6.) Plaintiff alleges that at some
unspecified time, Defendant Broome County Humane Society requested a hearing—that
Defendant Powell granted—and obtained a court order directing Plaintiff to pay $20,000. (Id.)
The Third Amended Complaint alleges that Plaintiff made arrangements for his mother to
take care of the dog during his incarceration but that Defendant Broome County Humane Society
refused the request “because of wanting to extort [P]laintiff for money.” (Id. at 7.)
Plaintiff alleges that he does not know the status of the dog but “it is certain [that
Defendant] Broome County Humane Society had put the dog to sleep for cost matters.” (Dkt.
No. 69 at 7.)
Plaintiff alleges Defendant Withers created a false report of an evaluation of the
Pomeranian dog at the request of Defendants Broome County Sheriff’s and Broome County
Humane Society. (Id. at 7.)
Plaintiff alleges that Defendant Gaska stated that Defendant Broome County Humane
Society has “help” from law enforcement, which Plaintiff interpreted to mean that Defendant
Gaska is dating Defendant Briegueal. (Id. at 8.)
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Based on these factual allegations, the Third Amended Complaint sets forth seventy-
seven causes of action many of which, relate to what Plaintiff perceives as unconstitutional
violations that took place within the confines of other civil rights actions Plaintiff has filed in
other District Courts. (Dkt. No. 69 at 9-60; see, e.g., Dkt. No. 69 at 25-26.) As relief, Plaintiff
seeks, among other things, monetary damages, judgement in the other actions be vacated,
transfer of his actions in the District Court for the Western District of New York to this Court, a
hearing on the merits of “imminent danger” in several actions that Plaintiff was denied IFP status
on based on a finding of three-strikes, and the return of his dog alive. (Dkt. No. 69 at 60-67.)
Plaintiff has paid the filing fee. (Docket entry dated 11/18/2024.) However, due to
Plaintiff’s status as a “prisoner” defined by 28 U.S.C. § 1915A(c) and the fact that he seeks
redress from a government entity or officer or employee, this Court must screen the Third
Amended Complaint pursuant to 28 U.S.C. § 1915A(b). See Shakur v. Selsky, 391 F.3d 106, 112
(2d Cir. 2004); 28 U.S.C. § 1915A(a).
II. 	LEGAL STANDARDS
A. 	Legal Standard Governing Review of The Complaint
The legal standard governing review of a pleading pursuant to 28 U.S.C. § 1915A(b) was
discussed at length in the Report and Recommendation issued by the undersigned dated April 25,
2025. (Dkt. No. 56 at 6.)
B. 	Legal Standard Governing Statute of Limitations in 42 U.S.C. § 1983 Actions
The legal standard governing the statute of limitations in 42 U.S.C. § 1983 actions was
discussed in the Report and Recommendation issued by the undersigned dated April 25, 2025.
(Dkt. No. 56 at 6-8.)
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III. 	ANALYSIS
A. 	Claims Against Defendants Department of Justice, Federal Bureau of
Investigation, New York State Troopers, and Powell
Judge Suddaby’s Order dated August 19, 2025, dismissed Plaintiff’s claims against
Defendants Department of Justice, Federal Bureau of Investigation, New York State Troopers,
and Powell without leave to amend. (Dkt. No. 63 at 2.) As a result, to the extent that the Third
Amended Complaint is construed as asserting claims against those entities and individual, I
recommend that they be dismissed.
In the alternative, I recommend that Plaintiff’s claims against Defendants Department of
Justice and Federal Bureau of Investigation be dismissed based on the doctrine of sovereign
immunity as set forth in the undersigned’s Report and Recommendation dated April 25, 2025.
(Dkt. No. 56 at 9-10.) Moreover, I recommend that Plaintiff’s claims against Defendant New
York State Troopers be dismissed based on the doctrine of immunity pursuant to the Eleventh
Amendment as set forth in the undersigned’s Report and Recommendation dated April 25, 2025.
(Dkt. No. 56 at 11.) Finally, I recommend that Plaintiff’s claims against Defendant Powell be
dismissed based on the doctrine of judicial immunity as set forth in the undersigned’s Report and
Recommendation dated April 25, 2025. (Dkt. No. 56 at 13-15.)
B. 	Claims Against Defendants Broome County Sheriff Doe #1, Broome County
Sheriff Doe #2, Broome County Sheriff Doe #3, Federal Agent Doe #1,
Federal Agent Doe #2, Federal Agent Doe #3, Federal Agent Doe #4 Federal
Agent Doe #5, Federal Agent Doe #6, Bonanno, Tokaish, Brown, Harting,
and New York State Trooper Doe
As set forth in the undersigned’s Report and Recommendation dated April 25, 2025,
“[d]ismissal is appropriate where a defendant is listed in the caption, but the body of the
complaint fails to indicate what the defendant did to the plaintiff.” Cipriani v. Buffardi, 06-CV-
0889, 2007 WL 607341, at *1 N.D.N.Y. Feb. 20, 2007) (Kahn, J.) (citing Gonzalez v. City of
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New York, 97-CV-2246, 1998 WL 382055, at *2 (S.D.N.Y. July 9, 1998)); see also Crown v.
Wagenstein, 96-CV-3895, 1998 WL 118169, at *1 (S.D.N.Y. Mar. 16, 1998) (mere inclusion of
warden’s name in complaint insufficient to allege personal involvement); Taylor v. City of New
York, 953 F. Supp. 95, 99 (S.D.N.Y. 1997) (same).
Although the Third Amended Complaint names Defendants Broome County Sheriff Doe
#1, Broome County Sheriff Doe #2, Broome County Sheriff Doe #3, Federal Agent Doe #1,
Federal Agent Doe #2, Federal Agent Doe #3, Federal Agent Doe #4 Federal Agent Doe #5,
Federal Agent Doe #6, Bonanno, Tokaish, Brown, Harting, and New York State Trooper Doe in
the caption of the Third Amended Complaint, the body fails to indicate any action that they took
or failed to take. (See generally Dkt. No. 69); Dean v. Annucci, 22-CV-0746, 2023 WL
2325074, at *6 (N.D.N.Y. Mar. 2, 2023) (Sannes, C.J.) (quoting Cipriani, 2007 WL 607341, at
*1).
As a result, I recommend that all claims against Defendants Broome County Sheriff Doe
#1, Broome County Sheriff Doe #2, Broome County Sheriff Doe #3, Federal Agent Doe #1,
Federal Agent Doe #2, Federal Agent Doe #3, Federal Agent Doe #4 Federal Agent Doe #5,
Federal Agent Doe #6, Bonanno, Tokaish, Brown, Harting, New York State Trooper Doe be
dismissed for failure to state a claim upon which relief may be granted.
C. 	Claims Against Defendant Wyoming County Sheriffs
As set forth in the undersigned’s Report and Recommendation dated April 25, 2025,
under law of the State of New York, “a department of a municipal entity is merely a subdivision
of the municipality and has no separate legal existence.” Hoisington v. County of Sullivan, 55 F.
Supp. 2d 212, 214 (S.D.N.Y. 1999). “[T]he Sheriff's Department [does not] exist separate and
apart from the County and, as a result, [ ] can[not] be sued.” Sagaria v. Orange Cnty. Jail, 20-
CV-2287, 2021 WL 4392422, at *3 (S.D.N.Y. Sept. 24, 2021); see also Gleeson v. County of
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Nassau, 15-CV-6487, 2019 WL 4754326, at *14 (E.D.N.Y. Sept. 30, 2019) (holding Nassau
County Sheriff's Department and Nassau County Correction Center were not proper parties
because they are administrative arms of Nassau County); Polite v. Town of Clarkstown, 60 F.
Supp. 2d 214, 216 (S.D.N.Y. 1999) (“Therefore, municipal departments in this State—such as
the Clarkstown Police Department—are not amenable to suit, and no claims can lie directly
against them.”).
As a result, I recommend that Plaintiff’s claims against Defendant Wyoming County
Sheriff’s Department be dismissed because it is not an entity that is amenable to suit. See Dudley
v. Hochul, 24-CV-0048, 2024 WL 1906584, at *9 (N.D.N.Y. May 1, 2024) (Lovric, M.J.)
(recommending dismissal of claims against the Onondaga County Sheriff because it was “not an
entity amenable to suit.”), report and recommendation adopted, 2024 WL 2399913 (N.D.N.Y.
May 23, 2024) (Hurd, J.); Taranto v. Putnam Cnty., 21-CV-2455, 2023 WL 6318280, at *15
(S.D.N.Y. Sept. 28, 2023) (dismissing claims against the defendant Putnam County Sheriff’s
Office because it was “not a suable entity.”).
Moreover, as alluded to by Judge Suddaby in his Decision and Order dated August 19,
2025, the proper venue for any claims that Plaintiff attempts to assert against Defendant
Wyoming County Sheriffs is in the District Court for the Western District of New York. (Dkt.
No. 63 at 3).
Venue in an action such as this is governed by 28 U.S.C. § 1391(b), which provides, in
pertinent part, that
[a] civil action wherein jurisdiction is not founded solely on diversity of
citizenship may, except as otherwise provided by law, be brought only in
(1) a judicial district where any defendant resides, if all defendants reside
in the same State, [or] (2) a judicial district in which a substantial part of
the events or omissions giving rise to the claim occurred.
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28 U.S.C. § 1391(b). “In the event of a finding that venue is improper, a court is empowered to
dismiss the action or, alternatively, if the interest of justice dictates, to transfer the case to any
district in which it could have been brought.” Glover v. Goord, 06-CV-1037, 2007 WL
2454193, at *6 (N.D.N.Y. Aug. 22, 2007) (Kahn, J., adopting report and recommendation of
Peebles, M.J.) (citing 28 U.S.C. § 1406(a); Goldawr, Inc. v. Heiman, 369 U.S. 463, 465-67
(1962)).
The Third Amended Complaint alleges that Defendant Wyoming County Sheriffs is
located in Warsaw, New York. (Dkt. No. 69 at 4); Glover, 2007 WL 2454193, at *6 (noting that
Wyoming County is “located in the Western District.”). Since it appears that the Western
District would be the appropriate forum for any claims against Defendant Wyoming County
Sheriff, I recommend in the alternative, that Plaintiff’s claims against it be dismissed pursuant to
28 U.S.C. § 1406(a).8
D. 	Claims Against Defendant Town of Colesville
As set forth in the undersigned’s Report and Recommendation dated April 25, 2025, a
municipality may not be held liable solely because it employs a tortfeasor. (Dkt. No. 56 at 12-
13); Los Angeles Cnty., Cal. v. Humphries, 562 U.S. 29, 36 (2010). “[T]o hold a municipality
liable under § 1983 for the unconstitutional actions of its employees, a plaintiff is required to
plead and prove three elements: (1) an official policy or custom that (2) causes the plaintiff to be
subjected to (3) a denial of a constitutional right.” Adams v. City of Syracuse, 21-CV-0650, 2025
8 	Plaintiff also alleges that Defendant McGunnis is located in Warsaw, New York. (Dkt.
No. 69 at 4.) Thus, to the extent that the assigned District Judge rejects the analysis set forth
below in Part III.E. of this Report and Recommendation, I recommend that, in the alternative,
Plaintiff’s claims against Defendant McGunnis be dismissed based on improper venue pursuant
to 28 U.S.C. § 1406(a).
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WL 2772081, at *28 (N.D.N.Y. Sept. 29, 2025) (Nardacci, J.) (internal brackets omitted)
(quoting Lucente v. Cnty. of Suffolk, 980 F.3d 284, 297 (2d Cir. 2020)).
A plaintiff can establish the existence of an official policy or custom through “(1) a
formal policy endorsed by the municipality; (2) actions directed by the government’s authorized
decisionmakers or those who establish governmental policy; (3) a persistent and widespread
practice that amounts to a custom of which policymakers must have been aware; or (4) a
constitutional violation resulting from policymakers’ failure to train municipal employees.”
Deferio v. City of Syracuse, 770 F. App’x 587, 589-90 (2d Cir. 2019) (internal quotations,
citations, and brackets omitted).
The Third Amended Complaint fails to allege facts plausibly suggesting that employees
of Defendant Town of Colesville violated Plaintiff’s constitutional rights through the
enforcement of a custom or policy. As a result, I recommend that any claim against Defendant
Town of Colesville be dismissed for failure to state a claim upon which relief may be granted.
E. 	Claims Against Defendants Gaska, Hockwater, Schidmet, and McGunnis
Plaintiff’s claims against Defendant Gaska, Hockwater, Schidmet, McGunnis, and Garver
are untimely.
Title 42 U.S.C. § 1983 establishes a cause of action for “the deprivation of any rights,
privileges, or immunities secured by the Constitution and laws” of the United States by a person
acting under color of state law. Wilder v. Virginia Hosp. Ass’n, 496 U.S. 498, 508 (1990)
(quoting 42 U.S.C. § 1983); see also Myers v. Wollowitz, 95-CV-0272, 1995 WL 236245, at *2
(N.D.N.Y. Apr. 10, 1995) (McAvoy, C.J.) (Section 1983 “is the vehicle by which individuals
may seek redress for alleged violations of their constitutional rights.”). In order to state a claim
pursuant to 42 U.S.C. § 1983, a plaintiff must allege that (1) “some person has deprived him of a
federal right,” and (2) “the person who has deprived him of that right acted under color of state . .
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. law.” Velez v. Levy, 401 F.3d 75, 84 (2d Cir. 2005) (quoting Gomez v. Toledo, 446 U.S. 635,
640 (1980)).
The events purportedly giving rise to Plaintiff’s claims against Defendant Gaska occurred
on August 11, 2020. (Dkt. No. 69 at 5-6.) Plaintiff’s claims against Defendants Hockwater and
McGunnis relate to their alleged threatened use of their guns against Plaintiff on November 5,
2020. (Id. at 4-5.) Plaintiff’s claims against Defendant Schidmet relate to him allegedly giving
Plaintiff’s house key to another individual on November 5, 2020.9 (Id. at 5.)
Claims pursuant to Section 1983 have a three-year statute of limitations. Bailey v.
Tricolla, 94-CV-4597, 1995 WL 548714, at *3 (E.D.N.Y. Sept. 12, 1995) (noting that in the
absence of a congressional dictate as to a limitations period, we apply the most appropriate state
statute of limitations, which for 1983 actions is the general personal injury statute setting forth a
limitations period of three years); see also Pearl v. City of Long Beach, 296 F.3d 76, 79 (2d Cir.
2002) (noting that the applicable limitations period for § 1983 actions in New York is three
years).
Thus, because Plaintiff did not file this action until January 22, 2024, more than three
years after the limitations accrued, it is time-barred unless a tolling principle applies so as to
excuse the delay.10
9 	Plaintiff also appears to ambiguously allege that at an unspecified time he was falsely
convicted of an unspecified crime because Defendants Garver, Hockwater, and Schidmet “lied
under oath claiming it was the plaintiff when the ‘supposed’ victim stated the supposed person
had own snakes not a dog.” (Dkt. No. 69 at 46.) This vague and conclusory allegation is
insufficient to plausibly suggest that Plaintiff’s constitutional rights were violated. Plaintiff does
not allege when Defendant Garver, Hockwater, and Schidmet allegedly testified, what the
substance of their testimony was, or how the testimony contributed to his alleged false
conviction. (See generally Dkt. No. 69.)
10 	The failure to file an action within the limitations period is an affirmative defense, and
thus, a plaintiff is not required to plead that the case is timely filed. See Abbas v. Dixon, 480
F.3d 636, 640 (2d Cir. 2007). Dismissal is appropriate, however, where the existence of an
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Tolling is not warranted under the circumstances alleged in the Third Amended
Complaint. “Although the Second Circuit recognizes the continuing violation doctrine, it has
qualified that the doctrine applies only to claims ‘composed of a series of separate acts that
collectively constitute one unlawful practice,’ or ‘claims that by their nature accrue only after the
plaintiff has been subjected to some threshold amount of mistreatment.’” Hall v. Clinton Cnty.,
18-CV-1405, 2020 WL 1923236, at *5 (N.D.N.Y. Apr. 21, 2020) (Suddaby, C.J.) (quoting
Gonzalez v. Hasty, 802 F.3d 212, 220 (2d Cir. 2015)). Moreover, equitable tolling is available in
“rare and exceptional” cases where “extraordinary circumstances prevented a party from timely
performing a required act,” and “the party acted with reasonable diligence throughout the period”
to be tolled. Walker v. Jastremski, 430 F.3d 560, 564 (2d Cir. 2005); see also Gonzalez v. Hasty,
651 F.3d 318, 322 (2d Cir. 2011) (“Equitable tolling is an extraordinary measure that applies
only when plaintiff is prevented from filing despite exercising that level of diligence which could
reasonably be expected in the circumstances.”). I recommend that the Court decline to find the
continuing violation doctrine or equitable tolling applicable to Plaintiff’s claims and find that
there is no other apparent basis for tolling the statute of limitations.
Contrary to Plaintiff’s assertion, his incarceration does not toll the statute of limitations.
(Dkt. No. 69 at 5-6.) Indeed, the Second Circuit rejected an analogous argument set forth by the
plaintiff in Montague v. City of Rochester, 22-1598-pr, 2022 WL 16558154, at *2 (2d Cir. Nov.
1, 2022) where he argued that his “status as a prisoner [was] a ‘rare and exceptional
affirmative defense, such as the statute of limitations, is plain from the face of the pleading. See
Walters v. Indus. and Commercial Bank of China, Ltd., 651 F.3d 280, 293 (2d Cir. 2011)
(“[D]istrict courts may dismiss an action sua sponte on limitations grounds in certain
circumstances where the facts supporting the statute of limitations defense are set forth in the
papers plaintiff himself submitted.”) (internal quotation marks and citation omitted); Pino v.
Ryan, 49 F.3d 51, 53 (2d Cir. 1995) (affirming sua sponte dismissal of complaint as frivolous on
statute of limitations grounds).
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circumstance[ ]’ that prevented him from filing a petition either before or after his incarceration.”
Montague, 2022 WL 16558154, at *2 (citing Zerilli-Edelglass v. N.Y. City Transit Auth., 333
F.3d 74, 80 (2d Cir. 2003); Walker v. Jastremski, 430 F.3d 560, 564 (2d Cir. 2005) (prisoner not
entitled to equitable tolling of statute of limitations for § 1983 claim); Hizbullahankhamon v.
Walker, 255 F.3d 65, 75 (2d Cir. 2001) (solitary confinement insufficient to toll statute of
limitations where prisoner had other opportunities to file)).
As a result, I recommend that any claims against Defendants Gaska, Hockwater,
Schidmet, McGunnis, and Garver be dismissed as untimely.
F. 	Claims Against Defendant Garver
Plaintiff’s claims against Defendant Garver related to his alleged threatened use of a gun
against Plaintiff on November 5, 2020, is untimely as set forth above in Part III.E. (Dkt. No. 69
at 4-5.) Plaintiff also alleges that on May 17, 2023, Defendant Garver admitted that he deleted
“security footage of David Gaska[’s] acts of August 11, 2020.” (Id. at 6.)
Plaintiff does not allege that the surveillance footage of Defendant Gaska that Defendant
Garver deleted was exculpatory or that it related in any way to Plaintiff’s underlying criminal
proceeding. (Dkt. No. 69); see Kweller v. County of Broome, 25-CV-0343, 2025 WL 3280821,
at *35 (N.D.N.Y. Nov. 25, 2025) (Brindisi, J.) (citing Morse v. Futso, 804 F.3d 538, 547 (2d Cir.
2015) (holding that government officials can be liable for fabricating evidence through false
statements or omissions including deleting exculpatory electronic data). Hence, the Third
Amended Complaint fails to allege facts plausibly suggesting that Defendant Garver’s alleged
deletion of the video deprived Plaintiff of his constitutional rights.
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G. 	Claims Against Defendant Withers
Plaintiff alleges that at an unspecified time, Defendant Withers created a false evaluation
of the female Pomeranian dog at the request of Defendants Broome County Sheriff’s and
Broome County Humane Society. (Dkt. No. 69 at 7, 38.) This conclusory allegation is
insufficient to plausibly suggest that Plaintiff’s constitutional rights were violated by Defendant
Withers. More specifically, the Third Amended Complaint fails to assert what false information
was contained in the report, if the report was utilized in a way that was detrimental to Plaintiff, or
any right of Plaintiff’s that was infringed by the false report. (See generally Dkt. No. 69.)
H. 	Claims Against Defendant Matson
Plaintiff alleges that Defendant Matson informed Plaintiff that it is Defendant Broome
County Humane Society’s policy “to pick and choose what ‘cases’ to investigate. Thus there is a
pattern of abuse of position. Since there was reports made by the plaintiff of a person
committing animal abuse.” (Dkt. No. 69 at 7.)
“[T]he duty to investigate criminal acts (or possible criminal acts) almost always involves
a significant level of law enforcement discretion. That discretion precludes any ‘legitimate claim
of entitlement’ to a police investigation.” Harrington v. Cnty. of Suffolk, 607 F.3d 31, 35 (2d
Cir. 2010) (citations omitted). The general “duty” of law enforcement to maintain public order
and safety is not a duty owed to any particular person or group. Harrington, 607 F.3d at 35.
Hence, there is no constitutional violation for Defendants Broome County Humane Society or
Matson in choosing which allegations to investigate and pursue. As a result, I recommend that
Plaintiff’s claims against Defendant Matson be dismissed for failure to state a claim upon which
relief may be granted.
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I. 	Claims Against Defendant Briegueal
Plaintiff alleges that Defendant Gaska stated that Defendant Broome County “Humane
Society has ‘help’ from law enforcement which” Plaintiff interpreted to mean that Defendant
Gaska is dating Defendant Briegueal. (Dkt. No. 69 at 8.) The Third Amended Complaint fails to
allege facts plausibly suggesting that Defendant Briegueal violated Plaintiff’s constitutional
rights.11
J. 	Claims Against Defendant Broome County Humane Society
The Third Amended Complaint appears to allege that Plaintiff’s female Pomeranian dog
was unlawfully seized without a warrant on November 5, 2020. (Dkt. No. 69 at 5-6.) However,
the statute of limitations with respect to any unlawful seizure claim likely expired for the reasons
set forth above in Part III.E. of this Report and Recommendation.
In the alternative, I recommend that any unlawful seizure claim against Defendant
Broome County Humane Society be dismissed for failure to state a claim upon which relief may
be granted.
The Third Amended Complaint appears to surmise that at some point in time, Defendant
Broome County Humane Society possibly euthanized the dog “for cost matters.” (Dkt. No. 69 at
7.) The legal standard governing the removal or killing of a companion animal was set forth in
the undersigned’s Report and Recommendation dated April 25, 2025. (Dkt. No. 56 at 16-17.)
The allegations in the Third Amended Complaint are too speculative at this juncture to
plausibly suggest a Fourth Amendment seizure claim related to any euthanasia of Plaintiff’s dog.
11 	The Third Amended Complaint also alleges in a conclusory fashion that at an unspecified
time Defendant Briegueal intimidated Plaintiff’s unnamed witness. (Dkt. No. 69 at 36-37, 46.)
This blanket assertion is also insufficient to plausibly allege that Defendant Briegueal violated
Plaintiff’s constitutional rights.
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(Dkt. No. 69 at 7.) Plaintiff acknowledges that he does not know the current status of his dog
and merely surmises that it is possible the dog has been euthanized for “cost matters.” (Id.) This
is insufficient to plausibly suggest the killing of his dog.
As a result, I recommend that Plaintiff’s Fourth Amendment unlawful seizure claim
related to the alleged killing of his dog be dismissed for failure to state a claim upon which relief
may be granted.12
Further, to the extent that the Third Amended Complaint is construed as asserting an
excessive fine claim pursuant to the Eighth Amendment, I recommend that it be dismissed
because the payment at issue was not punitive in nature and instead was “remedial” to recoup the
cost of caring for Plaintiff’s dog. (Dkt. No. 69 at 6-7); Lewis v. City of New York, 24-CV-2336,
2025 WL 50291, at *1 (S.D.N.Y. Jan. 8, 2025). In addition, the Third Amended Complaint fails
to allege facts plausibly suggesting that the civil penalty or fine imposed were grossly
disproportional. Lewis, 2025 WL 50291, at *1.
K. 	Claims Against Defendant Daniels
The Third Amended Complaint appears to allege that Defendant Daniels acted as an
attorney with respect to the legal proceedings related to Plaintiff’s Pomeranian female dog. (Dkt.
No. 69 at 6.)
It is axiomatic that court-appointed attorneys do not become state actors by virtue of their
appointment. See Rodriguez v. Weprin, 116 F.3d 62, 65–66 (2d Cir. 1997) (“[I]t is well-
established that court-appointed attorneys performing a lawyer’s traditional functions as counsel
to defendant do not act ‘under color of state law’ and therefore are not subject to suit under 42
12 	To the extent that Plaintiff attempts to assert a claim against Defendant Broome County
Humane Society alleging a violation of due process, I recommend that it be dismissed for the
reasons set forth in the Report and Recommendation dated April 25, 2025. (Dkt. No. 56 at 18.)
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U.S.C. § 1983.”); see also O'Donoghue v. U.S. Soc. Sec. Admin., 828 F. App’x 784, 787 (2d Cir.
2020) (“Private attorneys are generally not ‘state actors’ for purposes of § 1983.”). Because
Defendant Daniels was not acting as a state actor in his alleged representation, I recommend that
Plaintiff’s claims against him be dismissed for failure to state a claim.
L. 	Claims Against Defendants Lovric and Vilardo
Judges are absolutely immune from suit for claims seeking damages for any actions taken
within the scope of their judicial responsibilities. See Mireles v. Waco, 502 U.S. 9, 11-12 (1991).
Generally, “acts arising out of, or related to, individual cases before [a] judge are considered
judicial in nature.” Bliven v. Hunt, 579 F.3d 204, 210 (2d Cir. 2009). “[E]ven allegations of bad
faith or malice cannot overcome judicial immunity.” Bliven, 579 F.3d at 209.
Plaintiff asserts claims that appear to arise from the efforts of the undersigned and
Defendant Vilardo in our capacities as a judges assigned to Plaintiff’s various federal civil rights
actions. (Dkt. No. 69 at 6-8, 11-23, 25-31, 33-39, 41-44, 52-53.) The undersigned and Defendant
Vilardo are therefore immune from suit under the doctrine of judicial immunity. As a result, I
recommend that Plaintiff's individual capacity claims against Defendants Lovric and Vilardo be
dismissed based on the doctrine of judicial immunity pursuant to 28 U.S.C. §§ 1915(e)(2)(B)(iii),
1915A(b)(2).
Moreover, I recommend that Plaintiff's official capacity claims against Defendants Lovric
and Vilardo be dismissed based on the doctrine of sovereign immunity. Rech v. Siragusa, 23-
CV-6039, 2023 WL 2559409, at *5 (W.D.N.Y. Mar. 3, 2023) (citing F.D.I.C. v. Meyer, 510 U.S.
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471, 475, 114 S.Ct. 996, 127 L.Ed.2d 308 (1994)) (dismissing the plaintiff’s claims against
federal judges in their official capacities as “barred by sovereign immunity.”).13
M. 	Claims Against Defendant Broome County
A municipality may be held liable if a plaintiff can assert that a policy or custom of that
municipality caused the constitutional violation. Monell v. Dep't of Soc. Servs., 436 U.S. 658,
692-94 (1978). “A policy or custom may be established by any of the following: (1) a formal
policy officially endorsed by the municipality; (2) actions or decisions made by municipal
officials with decision-making authority; (3) a practice so persistent and widespread that it
constitutes a custom through which constructive notice is imposed upon policymakers; or (4) a
failure by policymakers to properly train or supervise their subordinates, such that the
policymakers exercised ‘deliberate indifference’ to the rights of the plaintiff.” Moran v. Cnty. of
Suffolk, 11-CV-3704, 2015 WL 1321685, at *9 (E.D.N.Y. Mar. 24, 2015) (citing Parker v. City
of Long Beach, 563 F. App’x 39 (2d Cir. 2014) (failure to train); Matusick v. Erie Cnty. Water
Auth., 757 F.3d 31, 62 (2d Cir. 2014) (widespread and persistent practice); Hines v. Albany
Police Dep't, 520 F. App'x 5, 7 (2d Cir. 2013) (actions of policymakers); Schnitter v. City of
Rochester, 556 F. App'x 5, 8 (2d Cir. 2014) (failure to train or supervise); Missel v. Cnty. of
Monroe, 351 F. App'x 543, 545 (2d Cir. 2009) (formal policy and act of a person with
policymaking authority for the municipality)).
“Naked boilerplate allegations against a [municipality] are not sufficient to demonstrate a
custom, practice or policy of conducting unlawful arrests.” Brown v. City of New York, 12-CV-
3146, 2014 WL 5089748, at *9, n.12 (S.D.N.Y. Sept. 30, 2014); see Plair v. City of New York,
13 	Moreover, for the reasons set forth above in Part III.C. of this Report and
Recommendation, venue for any claims that Plaintiff asserts against Defendant Vilardo likely lie
in the District Court for the Western District of New York.
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789 F. Supp. 2d 459, 469 (S.D.N.Y. 2011) (holding that for a Monell claim to survive a motion
to dismiss, a plaintiff must allege “sufficient factual detail” and not mere “boilerplate
allegations” that the violation of the plaintiff’s constitutional rights resulted from the
municipality's custom or official policy).
Construing Plaintiff’s Third Amended Complaint liberally, he lists Defendant Broome
County and employees of Broome County—Defendants Broome County Sheriff Doe #1,
Broome County Sheriff Doe #2, Broome County Sheriff Doe #3, Harting, and Brown—as parties
to this action but as set forth above in Part III.B. of this Report and Recommendation, Plaintiff
fails to allege any action taken by these individuals in the body of his pleading. (Dkt. No. 69 at
3.) Without any underlying constitutional violation, I recommend that his Monell claim against
Defendant Broome County be dismissed. See Robinson v. Williams, 22-CV-0982, 2023 WL
3352758, at *5 (N.D.N.Y. Jan. 12, 2023) (Lovric, M.J.) (citing Henry-Lee v. City of New York,
746 F. Supp. 2d 546, 567 (S.D.N.Y. 2010)) (dismissing a Monell claim where there was no
underlying constitutional claim), report and recommendation adopted 2023 WL 2986825
(N.D.N.Y. Apr. 18, 2023) (Suddaby, J.); see Segal v. City of New York, 459 F.3d 207, 219 (2d
Cir. 2006) (noting that once a “district court properly [finds] no underlying constitutional
violation, its decision not to address the municipal defendants’ liability under Monell [is] entirely
correct”).
As a result, I recommend that any claim against Broome County be dismissed.
N. 	Claims Against Defendant Broome County District Attorney’s Office
A “District Attorney’s Office is an agency of the State of New York.” Woodward v.
Office of Dist. Atty., 689 F. Supp. 2d 655, 659 (S.D.N.Y. 2010) (citing Ying Jing Gan v. City of
New York, 996 F.2d 522, 536 (2d Cir. 1993) (“When prosecuting a criminal matter, a district
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attorney in New York State, acting in a quasi-judicial capacity, represents the State not the
county.” (citation omitted)). Accordingly, I recommend that Plaintiff’s claims against Defendant
Broome County District Attorney’s Office be dismissed as barred by the Eleventh Amendment.
O. 	State Law Claims
Having found that all of Plaintiff’s federal claims are subject to dismissal, I recommend
that the Court decline to exercise jurisdiction over any state law claims. See 28 U.S.C. §
1367(c)(3) (providing that a district court “may decline to exercise supplemental jurisdiction
over [pendent state law claims] if . . . the district court has dismissed all claims over which it has
original jurisdiction”); Carnegie-Mellon Univ. v. Cohill, 484 U.S. 343, 350 n.7 (1988) (“[I]n the
usual case in which all federal-law claims are eliminated before trial, the balance of factors to be
considered under the pendent jurisdiction doctrine—judicial economy, convenience, fairness,
and comity—will point toward declining to exercise jurisdiction over the remaining state-law
claims.”); Walker v. Time Life Films, Inc., 784 F.2d 44, 53 (2d Cir. 1986) (citing Kavit v. A.L.
Stamm & Co., 491 F.2d 1176, 1180 (1974)) (holding that “federal courts, absent exceptional
circumstances, should abstain from exercising pendent jurisdiction when federal claims in a case
can be disposed of by summary judgment”).14
IV. 	OPPORTUNITY TO AMEND
Generally, a court should not dismiss claims contained in a complaint filed by a pro se
litigant without granting leave to amend at least once “when a liberal reading of the complaint
gives any indication that a valid claim might be stated.” Branum v. Clark, 927 F.2d 698, 704-05
14 	The undersigned notes that the allegations in this action appear to be substantially similar
to those set forth in Lettieri v. Matson, 3:24-CV-0434, which was dismissed based on the three-
strikes rule. Lettieri v. Matson, 24-CV-0434, 2024 WL 4689006, at *1-2 (N.D.N.Y. Nov. 6,
2024).
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(2d Cir. 1991); see also Fed. R. Civ. P. 15(a)(2) (“The court should freely give leave when
justice so requires.”). An opportunity to amend is not required, however, where “the problem
with [the plaintiff's] causes of action is substantive” such that “better pleading will not cure it.”
Cuoco v. Moritsugu, 222 F.3d 99, 112 (2d Cir. 2000); see also Cortec Indus. Inc. v. Sum Holding
L.P., 949 F.2d 42, 48 (2d Cir. 1991) (“Of course, where a plaintiff is unable to allege any fact
sufficient to support its claim, a complaint should be dismissed with prejudice.”). Stated
differently, “[w]here it appears that granting leave to amend is unlikely to be productive, . . . it is
not an abuse of discretion to deny leave to amend.” Ruffolo v. Oppenheimer & Co., 987 F.2d
129, 131 (2d Cir. 1993); accord, Brown v. Peters, 95-CV-1641, 1997 WL 599355, at *1
(N.D.N.Y. Sept. 22, 1997) (Pooler, J.).15
In this instance, I conclude that any further amendments to Plaintiff’s Third Amended
Complaint would be futile. Plaintiff has already amended his pleading three times and failed to
correct the deficiencies identified by the Court in his prior pleadings. (Compare Dkt. No. 56,
and Dkt. No. 63, with Dkt. No. 69.) Any additional amendments to Plaintiff’s Third Amended
Complaint are not likely to be productive. As a result, I recommend that all claims in Plaintiff's
Third Amended Complaint be dismissed without leave to amend. See Official Comm. of
Unsecured Creditors of Color Tile, Inc. v. Coopers & Lybrand, LLP, 322 F.3d 147, 168 (2d Cir.
2003) (quoting Dluhos v. Floating & Abandoned Vessel, Known as “New York,” 162 F.3d 63, 69
(2d Cir. 1998)) (finding that the “District Court did not abuse its discretion in denying [the
15 	See also Carris v. First Student, Inc., 132 F. Supp. 3d 321, 340-41 n.1 (N.D.N.Y. 2015)
(Suddaby, C.J.) (explaining that the standard set forth in Gomez v. USAA Fed. Sav. Bank, 171
F.3d 794, 796 (2d Cir. 1999)—that the Court should grant leave to amend “unless the court can
rule out any possibility, however unlikely it might be, that an amended complaint would be
successful in stating a claim”—is likely not an accurate recitation of the governing law after Bell
Atl. Corp. v. Twombly, 550 U.S. 544 (2007)), rev’d on other grounds, 682 F. App’x 30.
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plaintiff] leave to amend the complaint because there was a ‘repeated failure to cure deficiencies
by amendments previously allowed.’ ”); Salinger v. Projectavision, Inc., 972 F. Supp. 222, 236
(S.D.N.Y. 1997) (“Three bites at the apple is enough.”).
ACCORDINGLY, it is respectfully
RECOMMENDED that Plaintiff’s Third Amended Complaint (Dkt. No. 69) be
DISMISSED without leave to amend; and it is further;
ORDERED that the Clerk of the Court shall add Defendants Broome County, Broome
County District Attorney’s Office, Miroslav Lovric, and Lawrence Joseph Vilardo to the docket
as parties to this action; and it is further
ORDERED that the Clerk of the Court shall file a copy of this report and
recommendation on the docket of this case and serve a copy upon the parties in accordance with
the local rules.16
NOTICE: Pursuant to 28 U.S.C. § 636(b)(1), the parties have fourteen days within
which to file written objections to the foregoing report.17 Such objections shall be filed with the
Clerk of the Court. FAILURE TO OBJECT TO THIS REPORT WITHIN FOURTEEN
DAYS WILL PRECLUDE APPELLATE REVIEW. 28 U.S.C. § 636(b)(1) (Supp. 2013);
Fed. R. Civ. P. 6(a), 6(d), 72; Roldan v. Racette, 984 F.2d 85 (2d Cir. 1993) (citing Small v.
Sec’y of Health and Human Servs., 892 F.2d 15 (2d Cir. 1989)).
Dated: April __, 2026
Binghamton, New York
16 	The Clerk shall also provide Plaintiff with copies of all unreported decisions cited herein
in accordance with Lebron v. Sanders, 557 F.3d 76 (2d Cir. 2009) (per curiam).
17 	If you are proceeding pro se and served with this report, recommendation, and order by
mail, three additional days will be added to the fourteen-day period, meaning that you have
seventeen days from the date that the report, recommendation, and order was mailed to you to
7
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serve and file objections. Fed. R. Civ. P. 6(d). If the last day of that prescribed period falls on a
Saturday, Sunday, or legal holiday, then the deadline is extended until the end of the next day
that is not a Saturday, Sunday, or legal holiday. Fed. R. Civ. P. 6(a)(1)(C).
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Adams v. City of Syracuse, Slip Copy (2025)
© 2026 Thomson Reuters. No claim to original U.S. Government Works. 1
KeyCite Blue-Striped Flag
Appeal Filed by Adams v. City of Syracuse, 2nd Cir., October 17, 2025
2025 WL 2772081
Only the Westlaw citation is currently available.
United States District Court, N.D. New York.
Robert ADAMS, Jr., Plaintiff,
v.
CITY OF SYRACUSE et al., Defendants.
5:21-cv-00650 (AMN/MJK)
|
Signed September 29, 2025
Attorneys and Law Firms
A. CABRAL BONNER, ESQ., CHARLES A. BONNER,
ESQ., LAW OFFICES OF BONNER & BONNER, 3060
Kerner Boulevard – Suite A, San Rafael, California 94901,
Attorneys for Plaintiff.
JESSE P. RYDER, ESQ., RYDER LAW FIRM, 6739 Myers
Road, East Syracuse, New York 13257, Attorneys for
Plaintiff.
DANIELLE R. SMITH, ESQ., TODD M. LONG, ESQ.,
CITY OF SYRACUSE, CORPORATION COUNSEL, 233
East Washington Street, Room 300 City Hall, Syracuse, New
York 13202, Attorneys for Defendants.
MEMORANDUM-DECISION AND ORDER
Anne M. Nardacci, United States District Judge:
I. INTRODUCTION
*1 On June 3, 2021, Robert Adams, Jr. (“Plaintiff”),
commenced this civil rights action against Police Officers
Joseph Tolone, 1 Aaron Cecile, and Lashonda Russell (the
“Responding Officers”); Detectives Ryan Brimmer and
Jeffrey Beauchine (the “Detectives” and together with the
Responding Officers, the “Individual Defendants”); the City
of Syracuse (“Defendant City,” and, together with the
Individual Defendants, “Defendants”); Does 1-100 (the “Doe
Defendants”); and others, alleging violations of federal and
state law arising from his arrest and subsequent monthslong
detention during a since-dismissed criminal prosecution. Dkt.
No. 1 (“Complaint”).
Presently before the Court 2 is Defendants’ motion for
summary judgment pursuant to Rule 56 of the Federal
Rules of Civil Procedure, Dkt. No. 77 (“Motion”), Plaintiff's
opposition, Dkt. No. 85, and Defendants’ reply in further
support, Dkt. No. 90. For the reasons set forth below, the
Motion is granted in part and denied in part.
II. BACKGROUND 3
A. The Parties
Plaintiff is a black man who has lived in Syracuse for most of
his life. See, e.g., Dkt. No. 77-44 at 16:5-17:4. In May 2019,
he was 55 years old, approximately 5’7” in height and 160
pounds in weight, and lived in an apartment building located
at 941 James Street. Dkt. No. 90-1 at ¶ 515; Dkt. No. 77-23.
At that time, Plaintiff's medical diagnoses included, inter alia,
alcoholism, depression, and schizophrenia. Dkt. No. 77-42 at
2-3; Dkt. No. 77-55 at ¶ 454.
Defendant City is a large municipality in New York State with
a police department that employs the Individual Defendants.
As of May 2019, Officer Cecile had been a patrol officer
for approximately two years, Dkt. No. 77-47 at 21:24-22:15;
Officer Russell had been a patrol officer for approximately
three years, Dkt. No. 77-46 at 9:17-25; Officer Tolone had
been a patrol officer for approximately three years, Dkt. No.
77-48 at 9:24-10:2; Detective Brimmer had been a detective
for less than three years, Dkt. No. 77-49 at 12:11-13:8; and
Detective Beauchine had been a detective for approximately
nine years, Dkt. No. 77-51 at 16:21-17:17.
B. Relevant Events
1. May 1, 2016
Shortly after 7:30 p.m. on May 1, 2019, police (apparently
including Officer Russell) and emergency medical services
found Plaintiff intoxicated and lying on the side of a road
in Syracuse. Dkt. No. 77-42 at 2, 50-51; Dkt. No. 77-46
at 104:15-25. Plaintiff was covered in feces and urine and
reported drinking six to seven “Na[tt]y Daddy beverages,”
a brand of malt liquor. Dkt. No. 77-42 at 2, 51; Dkt. No.
77-43 at 49:11-13. Plaintiff was transported to a local hospital
emergency room for treatment, where his blood alcohol level
(“BAC”) was measured at 0.422 percent later that night. 4
Dkt. No. 77-55 at ¶ 311; Dkt. No. 77-42 at 25.
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2. May 6, 2016
a. 941 James Street
*2 At around 3:00 p.m. on May 6, 2019, Plaintiff began
drinking in and in front of his apartment building at 941
James Street. Dkt. No. 77-55 at ¶¶ 407, 410. By 4:00 or
5:00 p.m., he had consumed three or four 24-ounce cans of
Natty Daddy. Id. at ¶ 411. Around that time, a younger man,
Charles Jones, came over to socialize with Plaintiff. Id. The
two had known each for several years and, while they were
not actually related, Plaintiff referred to Mr. Jones as his
nephew and Mr. Jones called Plaintiff uncle. Dkt. No. 77-43
at 71:8-15; Dkt. No. 77-44 at 59:1-7, 98:16-23. Plaintiff and
Mr. Jones walked to a store to purchase four of five more 24-
ounce cans of Natty Daddy that they could share. Dkt. No.
77-55 at ¶¶ 414, 416. Plaintiff paid for the alcohol because
Mr. Jones had no money. Id. at ¶ 415. The two returned to
941 James Street, where a woman (Vanessa Goldych) and an
unnamed man were outside the building. Id. at ¶¶ 417, 419,
421-22, 424. Plaintiff continued drinking Natty Daddy and
joined Mr. Jones, Ms. Goldych, and the unnamed man in front
of 941 James Street. Id. at ¶¶ 419-20. At some point, Mr. Jones
and the unnamed man got into a verbal altercation, which then
turned physical. Id. at ¶¶ 421, 424.
i. 911 call
Shortly before 7:30 p.m., a young woman (Arianna Jordan
Bailey) was walking down James Street with her siblings. Id.
at ¶¶ 1, 339. At that time, Ms. Bailey observed the physical
altercation between Mr. Jones and the unnamed man. Id. at
¶ 340. Mr. Jones swung a stick at the unnamed man; that
man grabbed the stick and proceeded to knock Mr. Jones to
the ground. Id. The unnamed man then discarded the stick,
smashed Mr. Jones’ cell phone on the ground, and took off
running down the sidewalk. Dkt. No. 85-10 at 4. Mr. Jones
was not moving and did not get up, and Plaintiff went to check
on him. Id. at 5. Plaintiff asked Ms. Bailey to call 911. Id. At
approximately 7:25 p.m., Ms. Bailey did so. Dkt. No. 77-55
at ¶ 1.
The roughly three and a half minute recording of that 911
call reflects that Ms. Bailey informed the dispatcher that two
people had been fighting; one was unconscious on the ground;
and “a big type log looking thing” had been involved as a
weapon. Id. at ¶¶ 2-4; see also Dkt. No. 77-5. When the
dispatcher asked whether the assailant was still there, Ms.
Bailey said “no” and explained that “he got up out of here.”
Dkt. No. 77-55 at ¶ 5.
When the dispatcher asked for a description of the assailant,
Ms. Bailey said “he was African-American” and she had “just
seen him running off.” Id. at ¶¶ 6-7. Ms. Bailey then switched
to providing a description of Mr. Jones, whom she described
as approximately 25 years old and 5’7”. Id. at ¶¶ 8-9. When
the dispatcher clarified that he needed the description of the
assailant, Ms. Bailey stated that he was “kind of bigger, he's
gotta be like 6’3”, like medium build[.]” Id. at ¶ 10.
When the dispatcher asked what the assailant was wearing,
Ms. Bailey said “a green lookin’ sweatsuit thing” and then
explained that “officers [a]re right here on site and I'm just
gonna tell them what happened.” Id. at ¶¶ 10-11. Ms. Bailey
can then be heard saying “he got in a fight with somebody, the
other dude ran off but he got knocked out... he was, he was hit
too in the whole altercation, you see that stick he was hit with
that ... he was.” Id. at ¶ 12; see also Dkt. No. 77-16 at 0:05.
ii. Police response
Officers Russell, Cecile, and Tolone were the officers
who initially responded to 941 James Street between
approximately 7:27 and 7:28 p.m. Id. at ¶¶ 14-15. The
911 call notes indicated “2 PEOPLE FIGHTING – ONE
PERSON NOW UNC[ONSCIOUS] ON THE GROUND –
COMPL[AINANT] SAW A VERY LG STICK.” Dkt. No.
77-4 at 3; Dkt. No. 77-55 at ¶¶ 16-17. The 911 call notes also
reported that the assailant was “ ‘a black male,’ 25-35 years
old, six feet 3 inches, last seen wearing a green sweat[suit].”
Dkt. No. 90-1 at ¶ 18. Soon after 7:30 p.m., four other officers
arrived at the scene. See, e.g., Dkt. No. 77-4 at 1-2.
After arriving, each of the Responding Officers activated and
de-activated their body worn cameras (“BWC”) at different
times. See Dkt. Nos. 77-15, 77-16, 77-17. Officer Russell's
BWC footage initially shows her standing over Mr. Jones,
next to Plaintiff (who is also on the ground) and Ms. Bailey,
as Officer Cecile exits his police vehicle and walks over. Dkt.
No. 77-16 at 0:00. Ms. Bailey, who was still on the phone
with 911 at this time, is visible pointing down at Mr. Jones
and saying “he got into a fight with somebody” and “the other
dude run off.” Id.; Dkt. No. 77-55 at ¶ 21. Plaintiff says words
to the same effect. Dkt. No. 77-16 at 0:00.
*3 Officer Russell proceeded to ask Plaintiff, who had some
blood on his lip, “what happened to you, why you bleeding?”
Dkt. No. 77-55 at ¶ 29. Ms. Bailey explained “he was hit too”
and “you see that stick he was hit with that.” Dkt. No. 77-55 at
¶ 12; Dkt. No. 77-16 at 0:05. Ms. Bailey subsequently slowly
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walked down the sidewalk, as Officer Tolone walked past her
to join Officers Russell and Cecile by Mr. Jones. Dkt. No.
77-16 at 0:15; Dkt. No. 77-55 at ¶ 32. Officer Tolone tended to
Mr. Jones, who remained unconscious, with labored, gasping
breaths and blood coming from the left side of his head. Dkt.
No. 77-55 at ¶¶ 40-42.
Plaintiff remained near the Responding Officers during this
time. See generally Dkt. Nos. 77-16, 77-17. In response
to Officer Cecile's question about who had hit Mr. Jones,
Plaintiff said “some motherfucker.” Dkt. No. 77-16 at 1:10. In
response to Officer Russell's question about what that person
looked like, Plaintiff pointed down James Street and said it
was a “black guy” whom he did not know. Dkt. No. 77-16
at 1:15. Following further questions, Plaintiff stated words to
the effect of “y'all acting like we did something wrong.” Id.
at 1:58. Officer Russell responded “no, no, we just trying to
get that information, so that way we can put out a point of
information regarding the guy who did it.” Id. at 2:03. Officer
Russell again asked about Plaintiff's lip; Plaintiff responded
that it was “a long story” and unrelated to Mr. Jones. Id.
at 2:28. In response to Officer Russell's question, Plaintiff
confirmed that he, Mr. Jones, and Ms. Goldych had been
drinking with a fourth person. Id. at 2:54. Plaintiff also stated
that the fourth person hit Mr. Jones, and that this person's
name was “Pete.” Id. Officer Russell then confirmed this
version of events with Ms. Goldych. Id. at 3:00. In response
to further questioning from Officer Russell, Plaintiff provided
his name, address, and birthdate. Id. at 3:47, 4:10. Plaintiff
again stated words to the effect “y'all acting like we done
something,” to which Officer Russell responded “no, we just
need your info so that way you can help us, that's all.” Id. Soon
after, Officer Russell again asked “were you two fighting each
other,” to which Plaintiff responded “no.” Id. at 5:45.
Approximately thirty seconds later, at 7:34 p.m., Officer
Tolone directed Plaintiff to stand up and turn around, quickly
patted him down, and informed Ms. Goldych “you're gonna
get detained too dear.” Dkt. No. 77-17 at 4:34. Officer Tolone
then told Plaintiff “you're being detained right now” and
placed Plaintiff in handcuffs. Id. at 4:53. Officer Tolone
walked Plaintiff over to a police vehicle and said “stand right
here; don't move,” before unlocking the vehicle and directing
Plaintiff into the backseat. Id. at 5:10.
The Responding Officers proceeded to put up police tape
around the scene. See, e.g., Dkt. No. 77-16 at 7:43.
At approximately 7:38 p.m., Officer Russell remarked to
Officers Tolone and Cecile that “we don't have anything to
put out a point for, except for it was a black man.” Id. at 9:54.
Officer Tolone responded, “it's the guy we have in the car, I
can almost guarantee it,” Dkt. No. 77-17 at 8:27, and Officer
Cecile agreed, saying “it's definitely him.” 5 Dkt. No. 77-15
at 1:41.
At approximately 7:39 p.m., Officer Tolone asked various
officers “have we started a canvas yet guys?” Dkt. No. 77-17
at 9:54. Officer Russell responded “yeah, we'll do that right
now. I wish we would have got those people that were ...”
and gestured down the sidewalk in the direction Ms. Bailey
and her siblings had walked. Dkt. No. 77-16 at 11:27. At
approximately 7:40 p.m., the Responding Officers spoke with
two non-party officers who arrived after they did. See, e.g.,
Dkt. No. 77-17 at 10:14. One of the non-party officers asked
“what's up with the guy with the busted lip,” to which Officer
Tolone responded “yeah, I'm thinking that's gonna, like you
said, that's gonna be our guy.” Id.
*4 At approximately 7:41 p.m., Officer Cecile called the
Criminal Investigations Division of the Syracuse Police
Department (“CID”). Dkt. No. 77-15 at 4:55. Officer Cecile
reported that “we've got possible suspects, I don't know,
they're totally drunk, I don't know if someone wants to show
up down here or not.” Id. at 5:35. During the course of this
call, Officer Cecile asked Officer Russell for the name of “the
guy, the suspect ... the guy that we got detained right now,”
and then provided Plaintiff's name as “the possible suspect.”
Id. at 8:19.
At approximately 7:45 p.m., Officer Russell asked Officer
Tolone, “did anyone contact those people back,” Dkt. No.
77-16 at 17:21, presumably again in reference to Ms. Bailey
and her siblings, to which Officer Tolone responded that
he tried but they did not want to meet, Dkt. No. 77-17 at
15:51. Officers Tolone and Russell then canvased the area for
additional eyewitnesses, without success. See, e.g., Dkt. No.
77-55 at ¶ 76; Dkt. No. 77-17 at 18:30.
At approximately 7:47 p.m., seemingly while on hold with
CID, Officer Cecile stated to other officers on the scene that
“I'm just going to call back the [911] caller, because they
obviously saw it, and see if they want to talk and give us the,
uh, a statement of what happened, once I'm done with CID.”
Dkt. No. 77-15 at 10:57. After the call with CID resumed,
Officer Cecile reiterated to the person with whom he was
speaking that “he's totally, he's totally wasted, so how much
that would do, I don't know” before saying words to the effect
that he would “try and give the [911 caller] a call” and “see
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if she witnessed who did it ... and maybe she'll give us a
statement.” Id. at 12:39.
At approximately 7:50 p.m., Officer Cecile again informed
one of the other officers at the scene that he was going to
contact the 911 caller “to see if they could give us a statement
since they're all wasted, and then, you know, to [see] who hit
him with it, because obviously they saw the whole thing.” Id.
at 14:16. Officer Cecile then spoke with Ms. Bailey and asked
if she could provide “an ID of who the suspect is, because
right now all we've got is three people that are intoxicated,
nobody's owning up to hit, hitting this, uh, gentlemen with
a stick.” Id. at 14:50. Officer Cecile went on to ask “do you
remember what the, uh, what the guy that hit him with a stick
was wearing,” before repeating “a green shirt.” Id. at 16:01.
Officer Cecile then clarified “the guy that got knocked out
was, like, in his mid to late 20s, and it was, like, an older
guy, like 35 to 40, that hit him?” Id. at 16:43. After the call
ended, Officer Cecile shared with other officers on the scene
that he had spoken with Ms. Bailey, and said that Mr. Bailey
had said the assailant “was wearing a green shirt, he's got a
green vest on,” to which another officer responded “yeah, it's
this guy,” presumably in reference to Plaintiff. Id. at 17:20.
Officer Cecile then tried to call Ms. Bailey again, and asked
if she would come back to identify the person she had seen
fighting with Mr. Jones. Id. at 18:30. Ms. Bailey did not agree
to do so, in part because she had just “seen a fight, I don't want
nobody looking for me or anything.” Id. at 18:45.
While officers identified numerous video cameras that could
contain footage of the incident, no such footage was retrieved.
See, e.g., Dkt. No. 77-16 at 24:15; Dkt. No. 77-55 at ¶¶ 86,
134, 316, 383-84.
Shortly before 8:00 p.m., Plaintiff was removed from the
police vehicle to be photographed by a non-party officer. Dkt.
No. 77-16 at 31:11; Dkt. No. 77-55 at ¶ 113. During this
process, Officer Russell walked over and asked Plaintiff “you
being good Robert” and “how'd that thing go the other day
when you shit your pants?” 6 Id. at 31:22. Plaintiff appears
to have mumbled that he “got drunk.” Id. at 31:29. The non-
party officer photographing Plaintiff directed him to ball his
hands up behind his back. Id. at 31:38. After leaning down
to examine Plaintiff's hands and knuckles—presumably for
blood or injuries—this officer did not photograph them. Id.
*5 Plaintiff then exclaimed “I want to know what I did,”
to which Officer Russell responded “we're trying to figure
that out too.” Id. at 31:50. As the non-party officer placed
Plaintiff back in the vehicle, Officer Russell asked Plaintiff
“you nervous,” to which he responded “yeah.” Id. at 32:00.
3. Criminal Investigations Division
Officers Tolone and Cecile transported Plaintiff and Ms.
Goldych from 941 James Street to CID. Dkt. No. 77-6 at 5.
Officer Tolone placed Plaintiff in a holding room, where he
remained detained for several hours. Dkt. No. 77-8 at 3.
At some point during the hours that Plaintiff was detained at
CID, Detective Brimmer and a non-party detective appear to
have traveled to 941 James Street to investigate the scene. See
Dkt. Nos. 77-13, 77-19. Detective Brimmer's police report
indicates that he also reviewed the 911 call notes at this
time. Dkt. No. 77-19 at 2. The non-party detective assisting
Detective Brimmer in canvassing the apartment building
documented that one of the witnesses “stated that he did
not know the men who drank in the parking lot, but stated
that he observed three men and one woman drinking beer in
the lot this afternoon.” Dkt. No. 77-13 at 2. Once back at
CID, Detective Brimmer tried to speak with Ms. Goldych,
but determined that she “appeared extremely intoxicated” and
“was unable to speak due to apparent intoxication.” 7 Dkt.
No. 77-19 at 2. Detective Brimmer's police report states that
“[b]ased on the 911 caller[’]s description of the incident”
and Plaintiff's presence at the crime scene, “he was being
considered a likely suspect.” Id. at 3.
Once Detective Brimmer returned to CID, he and Detective
Beauchine moved Plaintiff into a small interrogation room
at approximately 10:30 p.m. Dkt. No. 77-55 at ¶ 141; Dkt.
No. 77-21 at 0:00. Plaintiff remained in this room until he
was placed back in handcuffs at approximately 1:00 a.m. See
generally Dkt. No. 77-21. Shortly after 10:30 p.m., Detective
Brimmer read Plaintiff his Miranda rights. Dkt. No. 77-55
at ¶ 154. Plaintiff proceeded to speak with the Detectives.
In response to Detective Brimmer's initial question about
“[w]hat happened over there, man,” Plaintiff stated “[w]ell,
what happened -- my nephew got into it with some guy. You
know, and - - you know, they was fighting and stuff, you know.
And I'm drunk. You know what, hey, here I am. That's what
happened.” Dkt. No. 77-22 at 6:18-23.
*6 The parties dispute the extent of Plaintiff's intoxication
during the approximately two and half hours that he remained
in the interrogation room. Sometime after approximately 1:00
a.m. on May 7, 2019, when Plaintiff's booking process began,
his BAC was measured at 0.15 percent, or nearly twice the
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legal limit to operate a motor vehicle. Dkt. No. 77-24; see also
supra n.4. According to one of Defendants’ retained experts
(Robert L. Weisman, D.O.), the physiological effects of such a
BAC are that “[m]otor function, speech, and judgment are all
severely affected at this height of blood alcohol. Staggering,
and slurred speech, may be observed.” 8 Dkt. No. 77-52 at 10.
Based on Dr. Weisman's review of numerous record materials
and his examination of Plaintiff in June 2024, his expert
psychiatric report contains several other findings that are
relevant for purposes of summary judgment. See generally
id. First, Dr. Weisman determined that—when sober—“Mr.
Adams has deficits in his Miranda understanding, particularly
regarding legally acceptable deceptive police practices as
well as other specific aspects of remaining silent versus
talking to the police.” Id. at 7, 9. Based on certain of Mr.
Adams’ test scores—again, when sober—Dr. Weisman also
concluded that Plaintiff's “basic understanding of Miranda”
ranked in the eighteenth percentile of pretrial defendants. Id.
at 8-9. Defendants take the position in the Motion that “Dr.
Weisman's opinions are unrebutted.” Dkt. No. 77-56 at 20.
Beyond the extent of Plaintiff's intoxication, the parties
also dispute the voluntariness and significance of various
statements Plaintiff made during his interrogation by the
Detectives. In sum, the Detectives refused to accept Plaintiff's
version of events, and instead told Plaintiff that video
evidence, forensic evidence, and numerous witnesses all
established that he had fought Mr. Jones; Plaintiff just needed
to provide the details. See generally Dkt. No. 77-22. For
example:
Det. Beauchine: Okay. Hit the reset button. All right, okay.
Det. Brimmer: Why don't we start at the beginning and tell
the truth?
Plaintiff: That's the truth.
Det. Brimmer: No.
Det. Beauchine: No, it's not. Listen, listen. It's not. We can
do this over --
Plaintiff: Okay. Then you tell the truth, then. Okay?
Det. Beauchine: I don't need to tell the truth. You're the one
that needs to --
Plaintiff: Well, well, I'm telling you what I -- I'm telling you
what as far as I know.
Det. Brimmer: You were there. You were part of this.
Det. Beauchine: Yes.
Det. Brimmer: So you should --
Plaintiff: That's what I'm saying.
Det. Brimmer: -- you should know, then.
Plaintiff: Okay. That's what I'm saying. Okay, I'm trying to
tell y'all what happened. You telling me I'm lying.
Det. Beauchine: Well, let me put it to you like this. Okay?
Plaintiff: Oh, man. That --
Det. Beauchine: We got several people saying that you, all
right, got into an argument with this guy, and that you
hit him with a stick. All right? Just hear me out. Hear me
out. Okay? And that you hit him with a stick, and that
you hit him so hard that he got knocked out and went to
the ground.
Plaintiff: No.
Det. Beauchine: And so we're trying to verify whether or
not you intentionally hit him --
*7 Plaintiff: No. No, no, no, no, no.
Det. Beauchine: -- because you're a predatory person who
wants to go out there and hurt people and do bad things
to people, or if this is just a family argument that went
awry and --
Plaintiff: No.
Det. Beauchine: Okay.
Det. Brimmer: He ended up falling and hitting his head or
something.
Det. Beauchine: Right. And that's exact --
Plaintiff: Oh, no.
Det. Beauchine: -- that's (indiscernible).
Plaintiff: No.
Det. Beauchine: Okay. That's what we're facing, so did
-- was this something where you are a predator? You
intentionally attack people with things --
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Plaintiff: No.
Det. Beauchine: -- or whatever -- whatever you have
available to you? Or is this just something that just --
Plaintiff: I don't hurt nobody.
Det. Beauchine: -- listen, listen. Or is this something where
you, a couple guys are having a couple drinks and some
shit is said, and it's a family matter and shit went south,
and it was more of an accident than anything else, or are
you intentionally going around doing stuff like this? This
is --
Plaintiff: No.
Det. Beauchine: Okay. Which of the --
Plaintiff: No.
Det. Beauchine: -- which of the two is it?
Plaintiff: Nothing. Not one.
Det. Beauchine: No, no. Which -- no, no, no. I'm --
Plaintiff: I just happened to be there.
Det. Beauchine: You didn't just happen to be there. Okay?
Plaintiff: I didn't even hit the guy.
Det. Beauchine: Not with your hand.
Plaintiff: I hit nobody.
Det. Beauchine: You say not with your hands, because
you're showing us your hands. We know that. All right?
We know that.
Det. Brimmer: Listen, it was a mistake, and you didn't mean
for him to get hurt like that, that's a big difference than
if you go out there trying to hurt people.
Plaintiff: I ain't hit him.
Det. Brimmer: It's a huge difference.
Plaintiff: I didn't. Man, I swear to God I didn't. I didn't.
Det. Brimmer: It's a huge difference.
Plaintiff: I just happened to be there.
Det. Brimmer: No.
Plaintiff: I witnessed the thing.
Det. Brimmer: That story is not going to fly.
Det. Beauchine: Right. When people --
Det. Brimmer: It's not going to hold up.
Det. Beauchine: -- when people see the video and they talk
to someone --
....
They're going to see you in a certain fashion. And that's
without you saying anything, right? So if you give your
side of the story, and give your thoughts, and what was
going through your head at the time, listen, it puts people
in your perspective and in your shoes. Now, it doesn't --
and here's what I would say. It --
Plaintiff: I didn't do nothing.
Det. Beauchine: Hold on, listen to me. It doesn't always
make it right.
Plaintiff: I'm telling you. I didn't do this.
Det. Beauchine: People will understand if you put them in
your shoes, and you can only do that by talking.
Plaintiff: I don't give a --
Det. Beauchine: By telling us.
Plaintiff: Well, I'm telling you.
Det. Beauchine: Yeah.
Plaintiff: I'm telling you how it happened. Okay? I didn't --
Det. Beauchine: Were you shooing him away with the stick,
or did you mean to hurt him with the stick?
Plaintiff: No. No.
Det. Beauchine: What were you doing?
*8 Plaintiff: Wait a minute. You put -- you put words --
Det. Beauchine: No, no, no. I'm asking you. It's a question.
Det. Brimmer: We're trying to get to the --
Plaintiff: -- you're putting words in my mouth.
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Det. Brimmer: -- we're trying to get to the bottom of this.
Plaintiff: I'm telling you. Charles was fighting this guy.
Okay? Next thing I know --
Det. Beauchine: We're past that. We're past that. Alright?
We're past that. We know.
Plaintiff: And --
Det. Beauchine: We're past that. All right? Listen, relax.
Det. Brimmer: Just help us understand.
Det. Beauchine: Help us understand what happened. All
right? Between you and Charles.
Det. Brimmer: I mean, you got a wound on your face. That
could be a defensive wound, you know. It could --
Plaintiff: No. I ran into a tree being drunk.
Det. Beauchine: Okay. So is it safe -- how often do you
drink?
Plaintiff: Hmm? Every day.
Det. Beauchine: Okay. Could this be --
Plaintiff: All day. (laughs)
Det. Beauchine: -- could this -- listen, could this be a
mistake between you and Charles --
Plaintiff: No.
Det. Beauchine: -- because you were intoxicated and --
Plaintiff: No, no, no no.
Det. Beauchine: -- he was intoxicated?
Plaintiff: No, no, no, no, no, no, no. No, no, no, no. Really,
me and Charles ain't got no problem at all.
Det. Beauchine: Well, you did tonight.
Plaintiff: No. Hmm-mm.
Det. Beauchine: You did.
Plaintiff: No. No. No. Huh-uh.
Det. Beauchine: You might not want to think that you might
have had a problem, but --
Plaintiff: No, man.
Det. Beauchine: -- you get -- you had a problem with him
tonight.
Plaintiff: No.
Det. Beauchine: Or he had a problem with you, and you
were defending yourself, tell us.
Plaintiff: No, no, no, no.
Det. Brimmer: Did he start talking about Vanessa and upset
you?
Plaintiff: No.
Det. Brimmer: No?
Det. Beauchine: You had a problem with him tonight.
Plaintiff: Me and Vanessa had walked up. They happen to
over sitting -- sitting down, drinking. And still we was
drinking. Okay, next thing I know, they fighting. Really.
Really, man. Period.
Det. Beauchine: Was this an accident or did you mean to
hurt him?
Plaintiff: Man -- I didn't hurt him.
Det. Beauchine: You meant to hurt him?
Plaintiff: I never hurt him at all.
Det. Beauchine: It was an accident?
Plaintiff: Why do you -- why are you trying to put words
in my mouth? Okay? Huh?
Det. Brimmer: We're not trying to. We just want to get to
the bottom of this.
Plaintiff: Man, where -- well, where the bottom -- we're at
the bottom of [sic]. I was telling you.
Det. Brimmer: We're just going in circles.
Plaintiff: I didn't do nothing. I was a witness. That don't --
this they got --
Det. Brimmer We're just going in circles here....
Id. at 51:2-59:19.
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During the interrogation, Plaintiff's cellular phone rang. The
Detectives instructed Plaintiff not to answer the phone, to
turn it off, and to place it on the table. Id. at 27:6-20. At
approximately 11:14 p.m., just prior to the first break taken
during the interrogation, Detective Brimmer said that he
was going to take Plaintiff's phone outside the room. Id.
at 60:24-25; see also Dkt. No. 77-21b at 13:50. Plaintiff
responded, “[m]an, give me my phone,” to which Detective
Brimmer replied “[n]o, it's going to sit out here.” Dkt.
No. 77-22 at 61:1-3. During this break, Plaintiff is visible
talking to himself and unsuccessfully trying to open the
interrogation room's door, which appears to have been
deadbolted from the outside. Dkt. No. 77-21b at 14:00-17:00.
Plaintiff subsequently informed the Detectives that he was not
currently working because he had a “dual diagnosis” and that
his psychiatrist, counselor, and primary care doctor were all
at the same local healthcare provider. Id. at 102:16-103:16;
see also United States v. Moran, 778 F.3d 942, 951 (11th Cir.
2015) (“[D]ual diagnosis patients are those suffering from
both substance abuse and acute mental disorders.”).
*9 Plaintiff contends that he denied assaulting Mr. Jones
nearly 200 times before the Detectives coerced him into
providing a false confession around midnight. Dkt. No. 85-2
at ¶¶ 570-71. During the subsequent break, Plaintiff can be
heard saying “I'm going to jail for something I didn't do,” 9
Dkt. No. 77-21c at 8:49, and further talking to himself, see,
e.g., id. at 9:10, 11:23.
Defendants contend that Plaintiff's eventual confession was
not coerced and not false. Dkt. No. 77-56 at 9, 25.
Presumably to support this position, Defendants requested
that Dr. Weisman opine on Plaintiff's capacity during the May
2019 interrogation. Dkt. No. 77-52 at 11, 12. As relevant
here, Defendants requested that Dr. Weisman determine
whether Plaintiff had the “proper requisite intellectual
capacity and base intelligence level” and the “proper requisite
psychological state and mental health capacity” to have:
....
(c) understood the significance and context of the questions
being asked regarding the assault of Charles Jones; ...
....
(f) understood [the] significance and context of his answers
to those questions with respect to the assault of Charles
Jones; ....
(g) observed the events for which he was being questioned,
illustrated the ability to recall those same observations,
and provided answers based upon those observations
and recollections (even if, under certain circumstances,
Plaintiff was deceptive in his response); ....
(h) [had] the ability (or exhibited the ability) to
communicate his answers truthfully, effectively, clearly
and coherently; ..... and
(i) provided the answers of his own accord.
Id. at 11-12, 12-13. In response to every one of these items,
Dr. Weisman concluded:
Initially, yes, but towards the latter
part of the ~1.5-hour interview, Mr.
Adams being under the combination of
duress, fatigue, limitations of his legal
knowledge, and some level of alcohol
intoxication, became emotionally and
cognitively distressed, resigned, and
compelled to offer the narrative of the
crime being demanded of him.
Id. at 11-12, 12-13.
4. Police Reports
a. Detective Brimmer
According to the arrest report prepared by Detective Brimmer,
he and Detective Beauchine arrested Plaintiff at 12:00 a.m.
on May 7, 2019. Dkt. No. 77-23. The arrest report listed
Plaintiff as 55 years old, 5’7” tall, 160 pounds, and described
his apparent condition as “Appeared Normal.” Id. The arrest
report included criminal charges against Plaintiff. Id.
Detective Brimmer also prepared a police report regarding
events on May 6 and 7, 2019, including his telephone
conversation with Ms. Bailey. Dkt. No. 77-19. The parties
dispute what was said during this conversation on May 7,
2019.
According to Detective Brimmer's report, Ms. Bailey
corroborated certain key details of Plaintiff's confession
during this conversation, including that the day before “she
observed 2 unknown black males yelling at each other[;]”
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“one male punched the other, and the one that got punched
was hitting the other with a stick[;]” and “one of the subjects
went down to the ground unresponsive and the other male
was saying something about his nephew[.]” Id. at 3. Detective
Brimmer also wrote that Ms. Bailey stated that “she called
911 but walked away prior to EMS and Police arrival.” Id.
*10 According to a sworn affidavit provided by Ms. Bailey,
she never said many of the statements Detective Brimmer
attributed to her, including that she “never used the word
‘punch’ because I did not see either of the two individuals
punching[;]” “never told Detective Brimmer that the man
helping the victim was the who hit the victim. The person who
hit the victim ran away. The victim was unresponsive and the
older man told me the victim was his nephew. The older man
asked me to call 911[;]” “never told Detective Brimmer that
the older man was involved in this fight[;]” and “[t]he police
arrived while I was on the phone with 911 and I spoke to a
lady officer. I did not tell Detective Brimmer that I left before
the police arrived.” Dkt. No. 85-10 at ¶¶ 6-9. Ms. Bailey
further stated that Detective Brimmer's report “contains false
statements. I never told him that I witnessed anyone punching.
I never told him that the older man who called the victim his
nephew was involved in the fight. I never told him that I left
before the police arrived.” Id. at ¶ 10.
b. Officer Cecile
Officer Cecile's police report, dated May 6, 2019, listed
Plaintiff as 55 years old, 5’7” tall, 160 pounds, and described
his apparent condition as “Impaired Alcohol.” Dkt. No. 77-6
at 2.
In the narrative portion of his report, Officer Cecile stated that
“while in route, dispatch notes read that there was a fight in
progress between two people with one person [ ] unconscious
on the ground, the other person was wearing a green sweat suit
and there is a very large stick involved.” Id. at 5. With respect
to Plaintiff's detention, Officer Cecile wrote “[b]ased on the
notes from dispatch and lack of cooperation for Goldych and
Adams, both were detained at this time.” Id. As for his call
with Ms. Bailey, Officer Cecile wrote:
Bailey stated that she witnessed the
fight between the victim and suspect ...
Bailey stated that the suspect was an
old black male wearing a green jump
suit. Bailey stated that she saw the
male in the jump suit dodge a punch
from the victim and then swing the
large stick at [t]he victim's head which
connected and knocked him to the
ground.
Id. As for Plaintiff's appearance, Officer Cecile described him
as “an older black male in a grayish/teal puffy jacket and green
pants[.]” Id.
c. Officer Tolone
Officer Tolone's police report, dated May 6, 2019, listed
Plaintiff as 55 years old, provided no height or weight, and
described his apparent condition as “Normal.” Dkt. No. 77-8
at 4.
In the narrative portion of his report, Officer Tolone wrote
that “[p]rior to our arrival dispatch advised us that our caller,
Jordan Bailey who refused to speak with us regarding this
incident, stated to the call taker that she saw two males
fighting, one wearing a green jump suit, and then saw
someone get struck with a stick and then saw the man on
the ground.” Id. at 2. With respect to Plaintiff's detention,
Officer Tolone wrote that “Adams was detained at this time
for suspicion that he was in deed [sic] the suspect in this
incident however, when we initially arrived on scene Adams
stated there was another male that started a fight with Jones.”
Id. As for Plaintiff's appearance, Officer Tolone wrote that
“Adams, at the time contact was made, was wearing green
pants and a grey / green vest.” Id.
d. Other Police Reports
Officer Russell prepared a short report, also dated May 6,
2019, with a brief narrative that does not mention Ms. Bailey
or Plaintiff, or Officer Russell's interactions with either of
them. Dkt. No. 77-7 at 2.
Following Plaintiff's interrogation at CID, a non-party
officer photographed Plaintiff in the interrogation room
and collected his clothing early in the morning of May 7,
2019. Dkt. No. 77-10. This officer catalogued Plaintiff's
clothing as consisting of a “Black winter coat[,]” “Grey pants
with belt[,]” “Blue/green/white striped shirt[,]” “Blue Puma
sneakers[,]” and a “Baseball Hat (Grey, green Bird Game
logo)[.]” Id. at 3.
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5. Criminal Prosecution
In the weeks after the events of May 6, 2019, Officer Cecile,
Detective Brimmer, and Ms. Bailey testified before a grand
jury in Onondaga County. Dkt. No. 77-25. The grand jury
subsequently indicted Plaintiff 10 for (i) assault in the first
degree in violation of N.Y. Penal Law § 120.10(1); (ii)
assault in the second degree in violation of N.Y. Penal Law
§ 120.05(2); and (iii) criminal possession of a weapon in the
third degree in violation of N.Y. Penal Law § 265.02(1). Dkt.
No. 77-26 at 1. Plaintiff remained detained in jail pending
trial. Dkt. No. 77-55 at ¶¶ 309, 382.
*11 Mr. Jones died in the hospital on August 18, 2019.
Dkt. No. 85-15. A medical examiner ruled Mr. Jones’ death a
homicide as a result of complications from being struck in the
head “with a large stick containing imbedded nails.” Id. at 1,
2. After Mr. Jones’ death, it appears that the criminal charges
against Plaintiff could have been increased from assault to
manslaughter. 11 Dkt. No. 77-55 at ¶¶ 372-74.
On August 19 and 20, 2019, ADA Michael Manfredi
offered Plaintiff, through his court-appointed counsel, “a
plea to Manslaughter in the first with a sentence of 12
years Determinate.” Dkt. No. 77-28 at 2, 1. On October 8,
2019, ADA Manfredi reiterated to Plaintiff's court-appointed
counsel that the “[o]ffer remains Man 1 st with 12 years
determinate.” Id. at 1.
On January 9, 2020, Plaintiff's court-appointed counsel made
a bail application on behalf on Plaintiff, in part on the basis
that:
We have had an opportunity to
review much of the evidence against
[Plaintiff] and the defense believes
there is significant evidence that
the People have the wrong man
in jail. Despite what the People
have presented as a “confession”, the
defense believes that the evidence
will show that it is a psychologically
coerced false confession. There is
no indication there are any witnesses
identifying him at the scene. In fact the
opposite. The People's case is weak.
Dkt. No. 77-39 at ¶ 22.
Soon after, an investigator from the DA's Office contacted
Ms. Bailey. Dkt. No. 77-34 at 1. On January 16, 2020, Ms.
Bailey provided a voluntary affidavit that stated in relevant
part:
[Investigator Tim Galanaugh] asked if I would be willing
to come down to his office and meet with Mr. Coolican, the
prosecutor, and see if I would watch some video footage
that they had. He also made me aware that the police had
made an arrest of an individual the day of the [May 6, 2019]
incident. I told him that I would be willing to come down
and speak to them, and help in any way because I was
unaware that the victim had died.
Back in May, when everything had happened, I initially
called 911 for a man that was trying to assist the victim.
That man that I am speaking about was African American
and told me that the victim was his nephew. I stayed on
the scene with my siblings until the police officers arrived.
I gave information to the 911 person telling them that the
suspect that was responsible had run down James Street
towards downtown. I told the dispatch person that the
suspect was African American and over 6 foot tall and
was wearing dark green. As the officers showed up they
started talking to the older guy that was kneeling next to
his nephew. They wanted him to step back from the victim.
I told the female officer that he had nothing to do with it.
There was a[ ]lot going on at the time and I didn't want to
get more involved so I walked away with my siblings. At
the time, I felt that I had cooperated enough by reporting it
and I didn't want to involve myself or my siblings in what
appeared to me at the time to be a fight between two guys
that ended with one being knocked out with a stick. When
the police officers contacted me 30 minutes or so later to
see if I would come back to the scene to try to identify
someone, I didn't want to get involved. I was scared that
it would jeopardize my safety and my siblings[’] safety so
I told the police officers that I didn't want to do anymore
than what I had done to help already.
*12 ....
This is what I remember about the incident today: That I
had been leaving Bryant and Stratton on James Street and
observed two African American men that appeared to be
about to fight. Me and my siblings w[ ]ere almost walking
right through where this was occurring. The victim had a
long branch in his hand and starts to run up on the suspect.
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As the victim tries to swing on the suspect, the suspect
grabs the stick and snatches the stick from the victim. The
suspect then swings the stick at the victim with one hand
towards his upper body. I couldn't tell where it connected
or if he followed up with an elbow. All I seen is the victim
stumble and drop to the ground. Suspect then tosses the
stick. The suspect then goes to the pa[ ]nts pocket of the
victim, takes a cell phone out and smashes it onto the
pavement. Then the suspect takes off running down the
sidewalk on James Street towards downtown.
I didn't see where the suspect had run to because I then
focused my attention on the victim on the ground. That's
the same time when I noticed the older man get off the
stones by the Chestnut Apartments sign and walk over to
his nephew to check on him. I remember telling him that he
should help get him up off the ground. The victim wasn't
moving and looked like he had been knocked out, but after
a few moments of looking at him more closely I told the
older man that he, the victim, didn't look so good. That[’]s
when the uncle asked me to call 911, so I did. I stayed with
the uncle until the police arrived, but like I said, I walked
off shortly after with my siblings because we didn't want
to get more involved.
Today, at around 1045 AM, I met Mr. Coolican and
Investigator Galanaugh at the D.A.’s Office. They had me
watch some video footage from one of the officer's body
cameras when they showed up at the scene. In the video
I saw the victim on the ground and the African American
man, who told me the victim was his nephew, kneeling next
to him wearing a gray baseball hat. You can hear me talking
in the video telling the female officer that the victim was
hit with the stick.
I showed Mr. Coolican w[here] the victim's cell phone can
be seen in the video laying on the pavement, smashed. I
was told by Mr. Coolican and Investigator Galanaugh that
the person that was arrested in this incident, was the man
that told me that the victim was his nephew. The person that
the police arrested was not the suspect that I saw fighting
with the victim, and causing the victim to be hurt with the
stick. I saw that suspect run from the scene after smashing
the victim's phone on the ground.
Id. at 1-2; see also Dkt. No. 77-55 at ¶¶ 380-81.
Plaintiff was not released from jail until February 12, 2020,
more than nine months after his arrest on May 6, 2019. Dkt.
No. 77-55 at ¶ 382. The charges against Plaintiff were not
dismissed until September 15, 2020. Id. at ¶ 404.
a. Plaintiff's Capacity
On February 13, 2020, the judge presiding over Plaintiff's
criminal prosecution ordered Plaintiff's capacity evaluated
pursuant to New York Criminal Procedure Law § 730.
Dkt. No. 77-35 at 1 (stating that “the Court being of the
opinion that the defendant may be an incapacitated person” an
examination is ordered “to determine whether said defendant,
as a result of mental disease or defect, lacks capacity to
understand the proceedings against him or to assist in his own
defense”).
*13 Two physicians subsequently examined Plaintiff and
issued their reports on August 27, 2020. Dkt. No. 77-55 at ¶¶
391-92, 395. As relevant here, the first physician concluded
that “although suffering from Alcohol Use Disorder,”
Plaintiff “at the time of this evaluation, did not as a result of
mental disease or defect lack the capacity to understand the
proceedings against him or to assist in his own defense.” Id. at
¶ 394. The second physician similarly concluded that Plaintiff
“is not currently suffering from a mental illness which would
cause him to lack the capacity to understand the proceedings
against him or to assist his counsel in his own defense” and
that Plaintiff, “at the time of this evaluation, did not as a result
of mental disease o[r] defect lack the capacity to understand
the proceedings against him or to assist in his own defense.”
Id. at ¶ 398.
6. Additional Investigation by CID
On January 29, 2020, prior to Plaintiff's release from jail, two
non-party detectives returned to 941 James Street to obtain
video footage of the incident that had occurred nearly nine
months earlier. Id. at ¶ 383. Their investigation obtained no
such footage, id. at ¶ 384, and determined that none of a dozen
nearby businesses retained such footage for longer than three
months, Dkt. No. 77-31 at 2. The two detectives also made
efforts at this time to locate individuals previously mentioned
by Plaintiff and Ms. Goldych, including “the ‘Pete’ mentioned
in BWC [footage from the Responding Officers], but without
success.” Dkt. No. 77-55 at ¶¶ 385-86.
Forensic evidence recovered from items collected at 941
James Street—apparently including multiple drink containers
as well as Mr. Jones’ smashed phone—was linked to an
individual whose first name is Pierre. Dkt. No. 85-1 at ¶ 56;
Dkt. No. 85-4; Dkt. No. 85-14 at 9, 28; Dkt. No. 85-11 at 28. A
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non-party detective testified during his deposition that “[w]e
do have forensic evidence indicating that he may have been
present at the time of the incident or in the hours preceding
it.” Dkt. No. 77-50 at 123:24-124:9.
A September 2020 internal memorandum from the Syracuse
Police Department (“Memo”) states that such evidence
“strongly suggests, at a minimum, Pierre [ ] was onscene
at some point that day [May 6, 2019], and drinking with
the group” and notes that Pierre “is listed as much bigger
than Adams ([ ] - 6’00”, 220 lbs.), and closer resembles
that of the suspect description initially provided to 911 by
Jordan Bailey.” Dkt. No. 85-11 at 28. When provided with the
opportunity to speak with CID, Pierre apparently declined to
do so. Id. Another internal document from the Syracuse Police
Department indicates that while Pierre had been identified as
“a person of interest,” “there is no proof beyond a reasonable
doubt suggesting [Pierre] is the primary suspect at this time.”
Id. at 7-8. The Memo notes that the investigation of Mr. Jones’
death “will now be considered ‘unsolved’.” Id. at 30.
C. Prior Proceedings
1. Citizen Review Board
In April 2021, Plaintiff filed a complaint with Defendant
City's Citizen Review Board in connection with his arrest and
interrogation. Dkt. No. 85-11 at 14-21. The Syracuse Police
Department's Internal Affairs Division assigned a sergeant to
investigate Plaintiff's complaint and prepare a case report. Id.
at 1-13 (“Report”). The sergeant's investigation included an
interview with a deputy police chief. Id. at 8-9. The sergeant
included the following information from that conversation in
the Report:
I addressed the complaints made
by Mr. Adams of the false arrest
as well as being interviewed while
intoxicated. Deputy Chief [ ] was able
to explain there is case law which
supports interviewing a person who is
intoxicated. The only limitation to this
is if the person being interviewed is
intoxicated to the point of being in
a manic state. Deputy Chief [ ] also
informed me it is a matter of training
that detectives are trained on the
fact that interviewing an intoxicated
person is lawful, unless in this manic
state.... Therefore, the actions by [the
D]etectives during that interview were
lawful and proper.
*14 Id. at 9. The Report ultimately concluded that:
Mr. Adams[’] claim that he was
arrested and charge[d] for a crime he
did not commit is true. However, after
reviewing this case and based on the
evidence shown, there is no evidence
to show wrong doing on behalf of
any of the Syracuse Police Officers
involved. The interview conducted
by Det. Beauchine and then Det.
Brimmer was lawful and proper. There
was no violation of any rules and
regulations by Det. Beauchine or Det.
Sgt. Brimmer, or any officer. The basis
for Mr. Adams being charged with this
crime was due to his own admission
and the lack of cooperation from the
original eye witness. Therefore, this
complaint is unsubstantiated.
Id. at 12.
In the course of reaching these conclusions, the sergeant also
briefly spoke with the Detectives. Id. at 11-12. According to
Detective Brimmer, “Mr. Adams did not appear excessively
intoxicated during the interview” that began on May 6, 2019.
Id. at 11. Detective Beauchine similarly “stated [that] he
did not feel Mr. Adams was excessively intoxicated” during
the interview. Id. at 12. Detective Brimmer also shared that
“Mr. Adams would not have been under arrest without the
confession.” Id. at 11.
The sergeant, the sergeant's supervisor, a bureau chief, the
first deputy chief, and the chief of police are all listed as
March 2022 signatories to the Report. Id. at 13.
2. New York Court of Claims
Plaintiff previously filed a notice of claim in the New
York Court of Claims. Dkt. No. 63-1. Defendants examined
Plaintiff on January 22, 2021. Dkt. No. 77-43.
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D. Procedural History
Plaintiff commenced this action in June 2021. Dkt. No. 1.
Defendants moved to dismiss the Complaint in July 2021.
Dkt. No. 7. Plaintiff voluntarily dismissed his claims against
one individual defendant and otherwise opposed the motion.
Dkt. Nos. 9, 16.
In March 2022, United States Senior District Judge Lawrence
E. Kahn partially granted and partially denied Defendants’
motion to dismiss. Dkt. No. 19. Judge Kahn observed
that “[i]f the facts alleged by Plaintiff are true, Plaintiff's
detainment amounts to a substantial miscarriage of justice.”
Id. at 1. Judge Kahn dismissed Plaintiff's second, sixth,
seventh, and ninth claims, as well as another individual
defendant, and denied the balance of Defendants’ motion. Id.
at 1-18. Discovery proceeded, with the parties requesting and
receiving numerous extensions. See generally Docket Sheet.
In January 2024, United States Magistrate Judge Mitchell J.
Katz denied Plaintiff's motion to amend the Complaint to add
two individual defendants, but granted Plaintiff's request to
dismiss his claims against three other individual defendants.
Dkt. No. 64.
The Motion was fully submitted in April 2025. Dkt. Nos. 77,
85, 90.
E. Plaintiff's Claims
Plaintiff's remaining claims, 12 see Dkt. No. 19, are as
follows: pursuant to Section 1983, (i) false arrest against
the Individual Defendants, Dkt. No. 1 at ¶¶ 41-47; (ii)
malicious prosecution against Defendants, id. at ¶¶ 63-71; (iii)
fabricated evidence against Defendants, id. at ¶¶ 72-80; (iv)
a Monell claim against Defendant City, id. at ¶¶ 52-62; and,
pursuant to New York law, (v) false arrest against Defendants,
id. at ¶¶ 91-93; and (vi) negligent supervision, etc., against
Defendants, id. at ¶¶ 97-100.
III. STANDARD OF REVIEW
*15 Summary judgment is properly granted only if, upon
reviewing the evidence in the light most favorable to the
nonmovant, there is no genuine issue of material fact, and the
moving party is entitled to judgment as a matter of law. Fed. R.
Civ. P. 56(c); see also Celotex Corp. v. Catrett, 477 U.S. 317,
322-23, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986); Richardson v.
Selsky, 5 F.3d 616, 621 (2d Cir. 1993). A court first determines
“whether the evidence presents a sufficient disagreement to
require submission to a [factfinder] or whether it is so one-
sided that one party must prevail as a matter of law.” Anderson
v. Liberty Lobby, Inc., 477 U.S. 242, 251-52, 106 S.Ct.
2505, 91 L.Ed.2d 202 (1986). “When analyzing a summary
judgment motion, the court ‘cannot try issues of fact; it can
only determine whether there are issues to be tried.’ ” Galeotti
v. Cianbro Corp., No. 12-cv-00900, 2013 WL 3207312, at *4
(N.D.N.Y. June 24, 2013) (quoting Chambers v. TRM Copy
Ctrs. Corp., 43 F.3d 29, 36-37 (2d Cir. 1994)).
Defendant, in seeking summary judgment, “bears the burden
of establishing that no genuine issue of material fact exists
and that the undisputed facts establish [its] right to judgment
as a matter of law.” Rodriguez v. City of New York, 72 F.3d
1051, 1060-61 (2d Cir. 1995) (citation omitted). To determine
whether a genuine issue of material fact exists, a court must
resolve all ambiguities and draw all reasonable inferences
against the moving party. See Matsushita Elec. Indus. Co.
v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S.Ct. 1348,
89 L.Ed.2d 538 (1986); accord Gibbs-Alfano v. Burton, 281
F.3d 12, 18 (2d Cir. 2002). A “material” fact is one that
would “affect the outcome of the suit under the governing
law,” and a dispute about a genuine issue of material fact
occurs if the evidence is such that “a reasonable [factfinder]
could return a verdict for the nonmoving party.” Anderson,
477 U.S. at 248, 106 S.Ct. 2505; accord R.B. Ventures, Ltd.
v. Shane, 112 F.3d 54, 57 (2d Cir. 1997). The Court should
“grant summary judgment where the nonmovant's evidence is
merely colorable, conclusory, speculative or not significantly
probative.” Schwimmer v. Kaladjian, 988 F. Supp. 631, 638
(S.D.N.Y. 1997) (citing, inter alia, Anderson, 477 U.S. at
249-50, 106 S.Ct. 2505).
IV. DISCUSSION
The Court addresses the parties’ specific arguments with
respect to the remaining claims below. Given the disputed
factual record as to many aspects of Plaintiff's claims, the
Court finds it appropriate to reiterate the Second Circuit's
guidance in another case involving Section 1983 claims for
false arrest, malicious prosecution, fabricated evidence, and
related Monell liability:
We write because the district
court improperly granted summary
judgment to defendants. The record
before us reveals evidence from
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which a jury could find that certain
of the individual police officers
prepared a false report and initiated a
prosecution of plaintiff[ ] predicated
on this manufactured evidence. We
also write to emphasize a larger
issue raised by this case. Plaintiff[ ]
allege[s] that the defendant police
officers lied and fabricated evidence.
While we do not know whether the
accusations can be sustained, we do
know that such accusations must be
carefully reviewed. Lying is wrong,
and if the police lie while acting
in their official capacity, they also
violate the public trust. Courts must
ensure that such serious accusations
receive appropriate scrutiny lest our
Court appears to endorse such
official misconduct, which would
weaken the public's respect for the
administration of justice. In making
these remarks, we emphasize that we
have reached no conclusions about
whether the plaintiff[’s] accusations
can be substantiated. It will be for
a jury to determine at trial whether
plaintiff[ ] ha[s] proved [his] very
serious charges.
*16 Ricciuti v. N.Y.C. Transit Auth., 124 F.3d 123, 125 (2d
Cir. 1997). While the Court addresses the parties’ significant
factual disputes in detail below, it similarly reaches no
conclusions at this stage regarding whether Plaintiff will
ultimately be able to prove his surviving claims.
A. False Arrest under Section 1983 and New York law
“A § 1983 claim for false arrest, resting on the Fourth
Amendment right of an individual to be free from
unreasonable seizures[,] is substantially the same as a claim
for false arrest under New York law.” Alexander v. City of
Syracuse, 132 F.4th 129, 156 (2d Cir. 2025) (alteration in
original) (quoting Kee v. City of New York, 12 F.4th 150, 158
(2d Cir. 2021)). And “[u]nder New York law, to prevail on
a claim for false arrest, a plaintiff must show that (1) the
defendant intended to confine the plaintiff, (2) the plaintiff
was conscious of the confinement, (3) the plaintiff did not
consent to the confinement, and (4) the confinement was not
otherwise privileged.” Id. (quoting Ashley v. City of New York,
992 F.3d 128, 136 (2d Cir. 2021)). “Under both federal and
New York state law, probable cause is a complete defense
to a false arrest claim.” Carruthers v. Colton, 153 F.4th 169,
179 (2d Cir. 2025) (quoting Triolo v. Nassau Cnty., 24 F.4th
98, 106 (2d Cir. 2022)); see also Grice v. McVeigh, 873
F.3d 162, 166 (2d Cir. 2017) (“[Plaintiff]’s unlawful arrest
claim fails because his handcuffing was an ‘investigatory
detention’ (otherwise known as a ‘Terry stop’) that never
ripened into an arrest and was supported by reasonable
suspicion.”). “Probable cause to arrest a person exists if
the law enforcement official, on the basis of the totality of
the circumstances, has sufficient knowledge or reasonably
trustworthy information to justify a person of reasonable
caution in believing that an offense has been or is being
committed by the person to be arrested.” United States v.
Hawkins, 37 F.4th 854, 858 (2d Cir. 2022) (quoting United
States v. Patrick, 899 F.2d 169, 171 (2d Cir. 1990)).
As detailed earlier, after several minutes of questioning by
numerous officers, Plaintiff was handcuffed and put into the
back of a police vehicle in front of 941 James Street at
approximately 7:34 p.m. on May 6, 2019. See supra Section
II.B.2. Plaintiff was eventually transported to CID shortly
after 8:00 p.m., where he remained detained until his custodial
interrogation began at approximately 10:30 p.m. See supra
Section II.B.3. Plaintiff was held in the interrogation room
until approximately 1:00 a.m. on May 7, 2019, when he was
placed back in handcuffs and his booking process began. Id.
Plaintiff was then detained for more than nine months, until
his eventual release on February 12, 2020. See supra Section
II.B.5.
Plaintiff's opposition to the Motion does not challenge
his detention and questioning by officers prior to being
handcuffed at approximately 7:34 p.m. 13 See, e.g., Dkt.
No. 85 at 10; see also Dkt. No. 77-56 at 12-13. And
Defendants only seek summary judgment on the portions of
Plaintiff's false arrest claims that relate to his “pre-confession
detainment” and “post-confession arrest,” not his subsequent
months-long detention. Compare Dkt. No. 77-56 at 12, with
Dkt. No. 1 at ¶¶ 43, 92-93; see also Dkt. No. 7-2 at 13-14;
Dkt. No. 19 at 9-10. The Court thus focuses its analysis on
Plaintiff's detention at 941 James Street on May 6, 2019, his
formal arrest at CID on May 7, 2019, and the five or so hours
that he remained detained in between.
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1. Plaintiff's Detention at 941 James Street
*17 Defendants first contend that Plaintiff's false
arrest claims should fail because—although Plaintiff was
handcuffed, placed in the back of a police vehicle, transported
from his home to a police station approximately 30 minutes
later, and detained for hours—he was not actually under
arrest during this time. Instead, Defendants argue, the
approximately five-hour seizure of Plaintiff prior to his
formal arrest merely constituted an investigative stop and
only required reasonable suspicion. Dkt. No. 77-56 at 13,
16 (stating that “only reasonable suspicion was required” to
detain Plaintiff at 941 Adams Street and Defendants “had
ample reasonable suspicion to detain Plaintiff”); id. at 17,
18 (stating that “Plaintiff's pre-confession detainment at CID
was merely a continuation of his on-scene detainment” and
“the detainment was supported by reasonable suspicion”);
Dkt. No. 90 at 6 (stating that, as to Plaintiff's interrogation,
“Defendants maintain that Plaintiff was being detained
requiring only reasonable suspicion”).
This is a particularly weak argument given applicable law and
the facts of this case. 14 See, e.g., United States v. Lefebvre,
117 F.4th 471, 475 (2d Cir. 2024) (“There were several factors
present during th[is] seizure that, in many situations, this
Court would consider to be evidence that a seizure had indeed
become a de facto arrest. [Plaintiff]’s ‘freedom of movement
was restrained’ and ‘handcuffs were used.’ ... [T]he encounter
lasted roughly 20 minutes.... [Plaintiff]’s transportation to
a police station, instead of some of other reasonable third
location, would in many situations clearly establish that the
seizure had ripened into a de facto arrest.”) (citations omitted)
(collecting cases). The Court agrees with Plaintiff, Dkt. No.
85 at 8-9, that Defendants’ maximalist position regarding
their multi-hour detention of Plaintiff is unsupported by
Fourth Amendment jurisprudence, see, e.g., United States
v. Candelario, 486 F. App'x 907, 908 (2d Cir. 2012) (“It
is well established that ‘a police officer may briefly detain
an individual for questioning if the officer has a reasonable
suspicion that the individual is, has been, or is about to be
engaged in criminal activity.’ ”) (emphasis added) (quoting
United States v. Padilla, 548 F.3d 179, 186 (2d Cir. 2008)).
See also Grice, 873 F.3d at 167 (“In general, to determine
whether a Terry stop is so intrusive as to become an arrest, we
look to: [‘]the amount of force used by police, the need for
such force, and the extent to which the individual's freedom
of movement was restrained, and in particular such factors as
the number of agents involved, whether the target of the stop
was suspected of being armed, the duration of the stop, and
the physical treatment of the suspect, including whether or
not handcuffs were used.[’]”) (quoting United States v. Perea,
986 F.2d 633, 645 (2d Cir. 1993)).
By approximately 7:34 p.m., Plaintiff had already been
questioned for several minutes by multiple officers at the
scene. See supra Section II.B.2.a.ii. Plaintiff had informed
officers that he did not assault Mr. Jones (which Ms. Bailey
had also said); that the person who assaulted Mr. Jones had
run down James Street (which Ms. Bailey had said as well);
that the assailant was a black man named “Pete” (which
Ms. Goldych had also said); and that Plaintiff lived in
one of the apartments at 941 James Street. Id. Defendants
acknowledge that “the entire interaction was peaceful” prior
to Plaintiff's handcuffing, Dkt. No. 77-56 at 15, and Officer
Tolone testified that he did not feel his safety was at issue,
Dkt. No. 90-1 at ¶ 510. Throughout this time, Plaintiff did
not interfere with the investigation, continued answering
questions from officers, and made no effort to leave the scene.
See supra Section II.B.2.a.ii. Indeed, BWC footage shows
Plaintiff sitting down and speaking with Officer Russell
seconds before Officer Tolone directed him to stand up and
turn around. Dkt. No. 77-17 at 4:34. Officer Tolone then
handcuffed Plaintiff and informed Plaintiff that he was being
detained. Id. Officer Tolone proceeded to place Plaintiff into
the back of one of the multiple police vehicles parked in front
of Plaintiff's home. Id. at 5:08.
*18 Given this factual record, a reasonable juror could
conclude that Plaintiff was arrested at this time. Grice, 873
F.3d at 167. As the authority upon which Defendants rely,
Dkt. No. 77-56 at 15, makes clear, “[h]andcuffing is ordinarily
not incident to a Terry stop, and tends to show that a stop
has ripened into an arrest,” Grice, 873 F.3d at 167. See
also United States v. Newton, 369 F.3d 659, 676 (2d Cir.
2004) (“Handcuffs are generally recognized as a hallmark of
a formal arrest.”) (collecting cases). Moreover, Defendants
have failed to demonstrate the applicability of any of the
“certain unusual circumstances” when “handcuffing a suspect
to investigate a reasonable suspicion does not transform a
Terry stop into an arrest.” Grice, 873 F.3d at 168 (collecting
cases); see also Dkt. No. 77-56 at 15-16. As just discussed,
nothing in the record indicates concern about officer safety.
The balance of Defendants’ cursory arguments about why
Plaintiff purportedly needed to be handcuffed and placed in
the back of a police vehicle are unpersuasive. United States
v. Fiseku, 915 F.3d 863, 870 (2d Cir. 2018) (“[T]o satisfy
the reasonableness standard, officers conducting stops on less
than probable cause must employ the least intrusive means
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reasonably available to effect their legitimate investigative
purposes.”) (quoting Newton, 369 F.3d at 674).
2. Probable Cause
Defendants next argue that, regardless of when Plaintiff was
arrested, they had probable cause to arrest him for assault 15
within moments of arriving at 941 James Street. Dkt. No.
77-56 at 12-18.
This argument is also unconvincing, again given applicable
law and the facts of this case. “To assess probable cause,
a court considers only the facts ‘available to the officer at
the time of the arrest and immediately before it.’ ” Ashley,
992 F.3d at 136 (quoting Stansbury v. Wertman, 721 F.3d 84,
89 (2d Cir. 2013)). The parties largely agree on the basic
information known to the Responding Officers at the time
Plaintiff was handcuffed: 16 the 911 call notes, Plaintiff's
presence at the scene, and some blood on Plaintiff's lip. Dkt.
No. 77-56 at 13-14; Dkt. No. 85 at 14-15. The parties dispute
the factual contours of much of that information, however, as
well as its legal significance.
Defendants’ arguments regarding probable cause miss the
forest for the trees. When evaluating probable cause, the
Second Circuit has “consistently held, as relevant here, that
‘an officer may not disregard plainly exculpatory evidence.’
” Washington v. Napolitano, 29 F.4th 93, 107 (2d Cir. 2022)
(quoting Panetta v. Crowley, 460 F.3d 388, 395 (2d Cir.
2006)). Defendants were repeatedly informed that the black
man who assaulted Mr. Jones was no longer present at the
scene. See supra Section II.B.2.a. Ms. Bailey told the 911
dispatcher that this third man had assaulted the victim and
had run off, but that the victim and his uncle were still there.
Id. The 911 call notes indicated that the suspect was “last
seen wearing” a green sweatsuit. Dkt. No. 90-1 at ¶ 18.
Ms. Bailey again told Officer Russell—as Officer Russell
stood next to Plaintiff, possibly within earshot of Officer
Cecile as he approached—that the assailant who hit Mr.
Jones was someone other than Plaintiff and had run off. See
supra Section II.B.2.a. Plaintiff separately told Responding
Officers that the assailant had run off, that his name was
Pete, and that he was a black man. Id. Ms. Goldych also
indicated that the man's name was Pete. Id. Defendants simply
ignore the existence of this third man, identified by multiple
eyewitnesses at the scene (and subsequently confirmed by
forensic evidence). See Dkt. No. 77-56 at 12-18; see also Dkt.
No. 77-50 at 123:24-124:9; Dkt. No. 85-11 at 28.
*19 Instead, Defendants argue that Plaintiff “was the only
individual on scene that matched Ms. Bailey's description.”
Dkt. No. 77-56 at 14. But a reasonable juror could readily
conclude that Plaintiff did not match Ms. Bailey's description.
As the parties agree, the 911 call notes described the assailant
as 25 to 35 years old, 6’3” tall, with a “med[ium] build,”
and “black male.” Dkt. No. 90-1 at ¶ 18; Dkt. No. 77-4
at 3. At the time, Plaintiff was 55 years old, 5’7” tall, and
weighed approximately 160 pounds. See, e.g., Dkt. No. 90-1
at ¶ 515. Defendants’ own observations and descriptions of
Plaintiff are consistent with these attributes. See, e.g., Dkt.
No. 77-6 at 2 (Officer Cecile's police report listing Plaintiff's
age as 55, height as 5’7,” and weight as 160); Dkt. No. 77-23
(Detective Brimmer's arrest report listing the same); Dkt. No.
77-8 at 4 (Officer Tolone's police report listing Plaintiff's
age as 55); Dkt. No. 77-16 at 4:11 (Officer Russell's BWC
footage showing her asking Plaintiff for his birthdate, prior
to his arrest, and being told the date in 1964), 18:26 (Officer
Russell's BWC footage showing her providing Plaintiff's
birthdate to another officer); Dkt. No. 77-25 at 7:5-11 (Officer
Cecile testifying that he thought Plaintiff was in his “[l]ate
50s or early 60s” “just going by looking at [him]”).
The only portion of Plaintiff's physical attributes that
“matched” Ms. Bailey's description of the suspect is that
Plaintiff was also “a black male.” Dkt. No. 90-1 at ¶ 18.
A reasonable juror could conclude that this fails to provide
reasonable suspicion to briefly detain Plaintiff, let alone
probable cause to arrest him. See, e.g., United States v. Walker,
965 F.3d 180, 186 (2d Cir. 2020) (“As we have repeatedly
said, ‘race, when considered by itself and sometimes even
in tandem with other factors, does not generate reasonable
suspicion for a stop.’ ”) (quoting United States v. Swindle,
407 F.3d 562, 569-70 (2d Cir. 2005)); Zuniga-Perez v.
Sessions, 897 F.3d 114, 124 (2d Cir. 2018) (“As the Supreme
Court has made abundantly clear, stopping and interrogating
people based solely on race or ethnicity violates the Fourth
Amendment.”) (citing United States v. Brignoni-Ponce, 422
U.S. 873, 885-86, 95 S.Ct. 2574, 45 L.Ed.2d 607 (1975));
Dancy v. McGinley, 843 F.3d 93, 109 (2d Cir. 2016) (“[A]
description of race and gender alone will rarely provide
reasonable suspicion justifying a police search or seizure.”)
(quoting Brown v. City of Oneonta, 221 F.3d 329, 334 (2d Cir.
2000)); Jenkins, 478 F.3d at 90 (“It has long been established,
however, that when that description could have applied to any
number of persons and does not single out the person arrested,
probable cause does not exist.”) (collecting cases); see also
supra n.13.
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Defendants also claim that Plaintiff's clothing “matched” the
description Ms. Bailey had provided, in that “his hat, shirt,
and pants all appeared to be different shades of green.” Dkt.
No. 77-56 at 13-14. This characterization is unsupported by
the BWC footage from the Responding Officers, which a
reasonable juror could conclude shows Plaintiff wearing a
grey hat, a white striped shirt, grey pants, and a puffy black
patterned jacket, none matching. See generally Dkt. Nos.
77-15, 77-16, 77-17. Defendants’ claim is also contradicted
by the assessment from the non-party officer who cataloged
Plaintiff's clothing as consisting of a “Baseball Hat (Grey,
green Bird Game logo)[,]” “Blue/green/white striped shirt[,]”
“Grey pants with belt[,]” and a “Black winter coat[.]” Dkt.
No. 77-10 at 3. In any event, the varied articles of clothing
Plaintiff wore on May 6, 2019 are not indisputably a “green
sweatsuit,” like Ms. Bailey had described. Dkt. No. 90-1 at ¶
18. And Ms. Bailey never described the suspect wearing any
hat at all, Dkt. No. 77-5, let alone a hat with prominent neon
lettering, like the one Plaintiff had on his head when Officer
Russell arrived, walked over to Plaintiff and Ms. Bailey, and
began speaking with them, Dkt. No. 77-16 at 0:00. Given this
factual record, Defendants have not established that Plaintiff's
clothing “matched” the description of the suspect such that
they are entitled to judgment as a matter of law.
*20 At best, Defendants’ argument is that they had probable
cause to arrest Plaintiff because some of his clothing may have
had some green. The Court finds this argument unpersuasive
given the Second Circuit's analysis in Dancy v. McGinley. In
that Section 1983 case, police officers received a description
of a robbery suspect as simply “[t]hin black male, brown
jacket.” 843 F.3d at 99. Minutes later, officers stopped, and
ultimately arrested, two teenagers near the crime scene, one
of whom was wearing a “camouflage-patterned coat, with
green, light green, and brown patches.” Id. at 100, 101. As
relevant here, the panel reasoned that there was not even
reasonable suspicion to stop this teenager, who “was indeed
thin, black, and male. But, unlike the description, he was
wearing a camouflage-patterned coat.” Id. at 109. The Circuit
went on to explain that “[w]hile such a discrepancy does not
necessarily defeat a finding of reasonable suspicion ... the
remaining description—thin, black, and male—is too vague
in the circumstances here to justify a stop of anyone meeting
it[.]” Id. (citations omitted) (collecting cases).
A reasonable juror could reach a similar conclusion here.
Plaintiff's age, height, and build were nothing like the physical
description Defendants received for the suspect. Further,
Plaintiff's clothes, in color and type, did not constitute a
“green sweatsuit,” and thus did not provide Defendants
reasonable suspicion to detain him, let alone probable cause
to arrest him. See Dufort v. City of New York, 874 F.3d 338,
350 (2d Cir. 2017) (“Viewing the evidence in the light most
favorable to the plaintiff, a reasonable jury could find that
the police arrested [plaintiff] based on little more than a
witness's statement that he wore a similar shirt to that of one of
[the victims’] attackers. Although a jury could also interpret
the evidence differently, the record presents genuine issues
of material fact that preclude the conclusion that there was
probable cause as a matter of law and that, instead, require a
trial on the merits.”); see also supra n.13.
Defendants’ argument regarding Plaintiff's presence at the
scene fares no better. See, e.g., United States v. Delossantos,
536 F.3d 155, 160 n.4 (2d Cir. 2008) (“[A] person's presence
at a crime scene or association with criminal suspects do
not, without more, amount to probable cause to arrest.”);
Dufort, 874 F.3d at 350 (“Police do not have particularized
probable cause to make an arrest simply because a suspect
has suspicious acquaintances, or happens to be at the scene
of a crime[.]”) (citation omitted); Curry v. City of Syracuse,
316 F.3d 324, 335 (2d Cir. 2003) (“[A]n individual's presence
in an area of expected criminal activity, standing alone, is
not enough to support a reasonable, particularized suspicion
that the person is committing a crime.”) (quoting Illinois v.
Wardlow, 528 U.S. 119, 124, 120 S.Ct. 673, 145 L.Ed.2d
570 (2000)). Plaintiff was present in front of the apartment
building where he lived and, as detailed earlier, Defendants
were repeatedly informed that the assailant was another man
who had already left the scene. Mitchell v. City of New York,
841 F.3d 72, 78 (2d Cir. 2016) (“[T]he failure to make a
further inquiry when a reasonable person would have done so
may be evidence of lack of probable cause.”) (quoting Colon
v. City of New York, 60 N.Y.2d 78, 468 N.Y.S.2d 453, 455
N.E.2d 1248, 1250 (1983)).
As to the blood on Plaintiff's lip, in response to Officer
Russell's question, Ms. Bailey can be heard explaining that
“he was hit too in the whole altercation, you see that stick he
was hit with that.” Dkt. No. 77-55 at ¶ 12; see also Dkt. No.
77-16 at 0:05.
In sum, the totality of the circumstances proffered by
Defendants fails to establish an undisputed factual record on
which to grant summary judgment. Delossantos, 536 F.3d at
161. A reasonable juror could find that Defendants lacked
probable cause to arrest Plaintiff at approximately 7:34 p.m.
on May 6, 2019.
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3. Subsequent Information
Defendants go on to argue that, between handcuffing Plaintiff
and formally arresting him approximately five hours later,
they obtained additional information that provided them
probable cause to arrest Plaintiff. Dkt. No. 77-56 at 15-21.
Because a reasonable juror could conclude that Plaintiff
had been arrested at approximately 7:34 p.m., however, this
subsequent information is not relevant to analyzing probable
cause. See, e.g., Carruthers, 153 F.4th at 179 (“To assess
probable cause, a court considers only the facts ‘available to
the officer at the time of the arrest and immediately before
it.’ ”) (quoting Ashley, 992 F.3d at 136); Gonzalez v. City of
Schenectady, 728 F.3d 149, 155 (2d Cir. 2013) (“The inquiry
is limited to ‘whether the facts known by the arresting officer
at the time of the arrest objectively provided probable cause
to arrest.’ ”) (quoting Jaegly v. Couch, 439 F.3d 149, 153
(2d Cir. 2006)). Nonetheless, for the avoidance of doubt, a
reasonable juror could conclude that none of the subsequent
information identified by Defendants, in combination with the
earlier information discussed above, provided probable cause
to formally arrest Plaintiff at approximately 1:00 a.m. on May
7, 2019.
a. Plaintiff's Continued Detention Prior to His
Interrogation
*21 Defendants first argue that the Responding Officers
“performed many investigative tasks” after handcuffing
Plaintiff at approximately 7:34 p.m., and that Detective
Brimmer “performed several investigative tasks” prior to
interrogating Plaintiff at approximately 10:30 p.m. Dkt. No.
77-56 at 15, 17.
With respect to the Responding Officers, however, the only
additional information Defendants identify is Officer Cecile's
subsequent call with Ms. Bailey. Id. at 15-16. During that
call, Ms. Bailey appears to have again stated that the man
who hit Mr. Jones was “wearing a green jump suit,” Dkt. No.
77-55 at ¶ 100, and was “like 35 to 40” years old, Dkt. No.
77-15 at 16:43, not the “[l]ate 50s or early 60s” that Officer
Cecile perceived Plaintiff to be, Dkt. No. 77-25 at 7:5-11.
Such information is largely consistent with—and duplicative
of—the information Responding Officers already had. See
supra Section IV.A.2. Thus, a reasonable juror could conclude
that Plaintiff still did not match the description that Ms. Bailey
provided.
Defendants further contend that the Responding Officers
undertook various investigative efforts at 941 James Street
after handcuffing Plaintiff. Dkt. No. 77-56 at 15-16. But
Defendants identify no relevant additional information from
these efforts. Id. Instead, Defendants take the position that
the Responding Officers had “ample” probable cause to arrest
Plaintiff because “[a]t the conclusion of th[eir] investigation,
nothing excluded Plaintiff as the assailant. In other words,
no eye-witness exonerated Plaintiff ... and there was no
available surveillance evidence.” Id. at 16. Defendants cite
no legal authority for the proposition that unless a person
is “exonerated” by an eyewitness or video evidence at the
scene of a crime, there is probable cause to arrest them. Cf.
Ricciuti, 124 F.3d at 130 (“This argument—an ill-conceived
attempt to erect a legal barricade to shield police officials
from liability—is built on the most fragile of foundations; it is
based on an incorrect analysis of the law and at the same time
betrays a grave misunderstanding of those responsibilities
which the police must have toward the citizenry in an open
and free society.”). Defendants identify nothing from these
investigative efforts that even suggested that Plaintiff had
committed a crime. Hawkins, 37 F.4th at 858.
With respect to Detective Brimmer's investigation prior to
Plaintiff's interrogation, Defendants similarly contend that
Detective “Brimmer did not discover any evidence that
suggested Plaintiff was not the assailant.” Dkt. No. 77-56
at 17. More importantly, Defendants again fail to identify
any additional information developed by Detective Brimmer
that indicated Plaintiff was the assailant. Id. Moreover, a
reasonable juror could conclude that the factual record belies
Defendants’ claim. The results of the canvas conducted by
Detective Brimmer and his colleague further indicated that
there had been three men drinking at the scene of the assault,
not just Plaintiff and Mr. Jones, and thus further supported the
possibility that Plaintiff was not the assailant. Dkt. No. 77-13
at 2; see also Dkt. No. 77-56 at 12.
b. Plaintiff's Interrogation
Defendants next argue that Plaintiff's statements during his
interrogation by the Detectives provided probable cause for
his arrest, and that “Plaintiff voluntarily waived his rights
and was not coerced into a confession.” Dkt. No. 77-56 at
18-21. 17
*22 “Challenges to the voluntariness of a confession are
based on two overlapping constitutional provisions: (1)
due process protections under the Fifth (or Fourteenth)
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Amendment, and (2) the Fifth Amendment privilege against
self-incrimination.” United States v. Mendonca, 88 F.4th 144,
163 (2d Cir. 2023) (citing Dickerson v. United States, 530
U.S. 428, 433, 120 S.Ct. 2326, 147 L.Ed.2d 405 (2000)).
“As a general matter, courts’ descriptions of statements
as ‘compelled’ (invoking the text of the Self-Incrimination
Clause) and/or ‘involuntary’ (invoking, arguably, the Due
Process Clause) are often used interchangeably and the words
often treated synonymously.” United States v. Allen, 864
F.3d 63, 82 n.84 (2d Cir. 2017) (collecting cases). As a
practical matter, courts “look at the totality of circumstances
surrounding a Miranda waiver and any subsequent statements
to determine knowledge and voluntariness.” United States v.
Taylor, 745 F.3d 15, 23 (2d Cir. 2014) (citation omitted). “To
be effective, a waiver of a defendant's Miranda rights must be
both knowing and voluntary.” United States v. LaPorte, 779
F. App'x 63, 65 (2d Cir. 2019) (citing United States v. Plugh,
648 F.3d 118, 127 (2d Cir. 2011)). In the Miranda context,
“ ‘knowing’ means with full awareness of the nature of the
right being abandoned and the consequences of abandoning
it, and ‘voluntary’ means by deliberate choice free from
intimidation, coercion, or deception.” Taylor, 745 F.3d at
23 (quoting Plugh, 648 F.3d at 127). Even if a waiver is
knowing and voluntary, courts “must nonetheless determine
whether the [subsequent] inculpatory statements themselves
were voluntary.” Id. (citing Dickerson, 530 U.S. at 444, 120
S.Ct. 2326).
Defendants make various factual arguments as to why “there
is no evidence that Plaintiff was not of sound mind or so
intoxicated as to render his confession involuntary.” Dkt. No.
77-56 at 19-20. Given the present factual record, however,
Defendants are not entitled to summary judgment on this
issue.
As an initial matter, Defendants’ own expert contradicts
Defendants’ position. Id. at 20. Dr. Weisman has repeatedly
opined that, over the course of the interrogation, “Mr. Adams
being under the combination of duress, fatigue, limitations of
his legal knowledge, and some level of alcohol intoxication,
became emotionally and cognitively distressed, resigned, and
compelled to offer the narrative of the crime being demanded
of him.” Dkt. No. 77-52 at 11-13.
Further, the parties agree that Plaintiff consumed in excess
of one hundred ounces of malt liquor in the hours before
his interrogation. Dkt. No. 77-55 at ¶¶ 410-11, 414, 420.
Plaintiff stated “I'm drunk” shortly after the interrogation
began, Dkt. No. 77-22 at 6:22, and repeatedly referenced
his drunkenness thereafter, Dkt. No. 90-1 at ¶ 522. Nearly
three hours after the interrogation began, Plaintiff's BAC,
as measured by Defendants, was still almost twice the legal
limit. Dkt. No. 77-24; see also supra n.4. Dr. Weisman opined
that, even at this lower BAC, “[m]otor function, speech, and
judgment are all severely affected” and that “[s]taggering,
and slurred speech, may be observed.” Dkt. No. 77-52 at
10. A reasonable juror could conclude that Plaintiff's body
movements, speech, and demeanor during the videotaped
interrogation demonstrate a significant level of intoxication,
and also that they are consistent with Dr. Weisman's opinion.
See generally Dkt. No. 77-21.
Defendants’ suggestion that Plaintiff's mental health during
the interrogation was not at issue because he did not
share any hallucinations with the Detectives proves too
much. Dkt. No. 77-56 at 20 (“[A]t no point during the
interview did Plaintiff indicate that he was hearing voices....
Similarly, at no point during the interview did Plaintiff
indicate that he could see things that the Defendant Detectives
could not see.”). Plaintiff's medical diagnoses at the time
included schizophrenia, depression, and alcoholism. Dkt.
No. 77-42 at 2-3; Dkt. No. 77-55 at ¶ 454. During the
interrogation, Plaintiff explained that he was not currently
working because he had a dual diagnosis and that his primary
care doctor, psychiatrist, and counselor were at the same local
healthcare provider. Dkt. No. 77-22 at 102:16-103:16. As for
Defendants’ argument that Plaintiff was determined not to be
incapacitated more than a year after the interrogation, that
does little to establish the voluntariness of Plaintiff's waiver
on May 6, 2019. Dkt. No. 77-55 at ¶¶ 390-98.
*23 Given this record, a reasonable juror could determine
that Plaintiff's Miranda waiver was not voluntary.
Even if Defendants had established that Plaintiff's waiver
was voluntary, they have not demonstrated that it was
also knowing. LaPorte, 779 F. App'x at 65. Defendants
do not appear to make any express arguments on this
second requirement for waiver. See, e.g., Dkt. No. 77-56
at 18 (“[A]s discussed below, Plaintiff voluntarily waived
his rights and was not coerced into a confession.”); id. at
25 (“[F]or the reasons stated above, Plaintiff voluntarily
waived his Miranda rights and his confession was freely
given.”). In any event, Dr. Weisman's opinions also
include his assessment that—when sober—Plaintiff's “basic
understanding of Miranda” ranks in the eighteenth percentile
of pretrial defendants and that Plaintiff “has deficits in
his Miranda understanding, particularly regarding legally
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acceptable deceptive police practices as well as other specific
aspects of remaining silent versus talking to the police.” Dkt.
No. 77-52 at 7, 8-9. Because “knowing” for purposes of
Miranda means “made with a full awareness of both the
nature of the right being abandoned and the consequences
of the decision to abandon it,” a reasonable juror could find
that Plaintiff's waiver was not knowing. United States v.
O'Brien, 926 F.3d 57, 73 (2d Cir. 2019) (quoting Berghuis
v. Thompkins, 560 U.S. 370, 382-83, 130 S.Ct. 2250, 176
L.Ed.2d 1098 (2010)).
A reasonable juror could also find Plaintiff's subsequent
confession, after extensive interrogation by the Detectives,
involuntary for similar reasons. See, e.g., Taylor, 745 F.3d at
24 (“An individual's mental state should be considered in the
voluntariness inquiry to the extent it allowed law enforcement
to coerce the individual.... It is clear, however, that when ‘a
person is unconscious or drugged or otherwise lacks capacity
for conscious choice,’ a confession cannot be voluntary.”)
(first citing Colorado v. Connelly, 479 U.S. 157, 164-65, 107
S.Ct. 515, 93 L.Ed.2d 473 (1986); then citing United States v.
Salameh, 152 F.3d 88, 117 (2d Cir. 1998) (per curiam); and
then quoting Schneckloth v. Bustamonte, 412 U.S. 218, 224,
93 S.Ct. 2041, 36 L.Ed.2d 854 (1973)). Again, Defendants’
expert has repeatedly opined that, during the interrogation,
“Mr. Adams being under the combination of duress, fatigue,
limitations of his legal knowledge, and some level of alcohol
intoxication, became emotionally and cognitively distressed,
resigned, and compelled to offer the narrative of the crime
being demanded of him.” Dkt. No. 77-52 at 11-13. The Court
also notes that, prior to Plaintiff's confession, the Detectives
removed Plaintiff's phone from his person and then from the
room. Dkt. No. 77-22 at 27:6-20, 60:24-61:3. During the
subsequent break, and prior to Plaintiff's confession, Plaintiff
is visible in the video talking to himself and trying to open
the locked door keeping him in the interrogation room. Dkt.
No. 77-21b at 14:00-17:00; cf. Poventud v. City of New York,
750 F.3d 121, 145 & n.6 (2d Cir. 2014) (Lynch. J., concurring)
(“[W]e know that false confessions have been obtained by
pressures much less imposing than those to which [plaintiff]
was subjected.”) (collecting authorities).
*24 Because a reasonable juror could determine that
Plaintiff's confession was involuntary, based in part on his
intoxication, capacity, and the length and nature of his
detention and interrogation, the Court finds Defendants’
argument that the Detectives permissibly used “falsehoods”
during the interrogation to be somewhat beside the point.
Dkt. No. 90 at 7 (citing Frazier v. Cupp, 394 U.S. 731, 739,
89 S.Ct. 1420, 22 L.Ed.2d 684 (1969) (“The fact that the
police misrepresented statements that [a witness] had made is,
while relevant, insufficient in our view to make this otherwise
voluntary confession inadmissible.”)); see also United States
v. Caraballo, 282 F. App'x 910, 914 (2d Cir. 2008) (“We have
held that ‘[w]hether a confession is a product of coercion
may only be determined after a careful evaluation of the
totality of all the surrounding circumstances, including the
accused's characteristics, the conditions of the interrogation,
and the conduct of law enforcement officials.’ ”) (alteration
in original) (quoting United States v. Anderson, 929 F.2d 96,
99 (2d Cir. 1991)).
For all of these reasons, 18 the Motion is denied as to
Plaintiff's federal and state claims for false arrest following
his handcuffing at approximately 7:34 p.m. on May 6, 2019.
B. Malicious Prosecution under Section 1983
“To prevail on a malicious prosecution claim under New
York law, a plaintiff must show ‘(1) the commencement
or continuation of a criminal proceeding by the defendant
against the plaintiff, (2) the termination of the proceeding in
favor of the accused, (3) the absence of probable cause for the
criminal proceeding[,] and (4) actual malice.’ ” Alexander,
132 F.4th at 158 (alteration in original) (quoting Kee, 12 F.4th
at 161-62). Section 1983 requires these same four elements,
“but it also imposes an additional one: ‘(5) a sufficient post-
arraignment liberty restraint to implicate the plaintiff's Fourth
Amendment rights.’ ” Id. (first quoting Rohman v. N.Y.C.
Transit Auth., 215 F.3d 208, 215 (2d Cir. 2000); and then
citing Chiaverini v. City of Napoleon, 602 U.S. 556, 562, 144
S.Ct. 1745, 219 L.Ed.2d 262 (2024)).
Defendants challenge only the probable cause element of
Plaintiff's Section 1983 claim for malicious prosecution.
Defendants argue that this claim fails because (i)
“the probable cause supporting Plaintiff's arrest was
overwhelming;” (ii) “[t]hat probable cause only increased in
the day following Plaintiff's arrest;” and (iii) the DA's Office
sought and obtained Plaintiff's indictment. Dkt. No. 77-56 at
21-24.
Defendants’ first argument is unpersuasive for the reasons
detailed previously. See supra Section IV.A. Given the current
record, a reasonable juror could find that Defendants did not
have probable cause to either arrest or prosecute Plaintiff
based on the events that transpired between approximately
7:30 p.m. on May 6, 2019, and 1:00 a.m. on May 7, 2019.
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See, e.g., Walsh v. City of New York, 742 F. App'x 557,
562 (2d Cir. 2018) (“ ‘Probable cause, in the context of a
malicious prosecution, has ... been described as such facts
and circumstances as would lead a reasonably prudent person
to believe the plaintiff guilty.’ ... Because a reasonable juror
could believe that probable cause did not exist for [plaintiff]’s
arrest, as noted above, we conclude that it follows that
a reasonable juror could also believe that probable cause
did not exist for [plaintiff]’s prosecution.”) (first alteration
in original) (citing Stansbury, 721 F.3d at 95). Summary
judgment is thus not appropriate on this ground.
*25 Defendants’ second argument relies on disputed facts
that are also not appropriately resolved at summary judgment.
Defendants contend that, later on May 7, 2019, Detective
Brimmer received additional information from Ms. Bailey
and Ms. Goldych. Dkt. No. 77-56 at 22-23. But, as detailed
earlier, the parties dispute what Ms. Bailey actually said to
Detective Brimmer. See supra Section II.B.4.a. Moreover,
Ms. Bailey's sworn statement suggests that she provided
significant exculpatory information to Detective Brimmer.
See, e.g., Dkt. No. 85-10 at ¶¶ 7-8, 10; Napolitano, 29 F.4th at
107 (“[W]e have also consistently held, as relevant here, that
‘an officer may not disregard plainly exculpatory evidence.’
”) (quoting Panetta, 460 F.3d at 395). Because there is a
genuine dispute of material fact as to what information Ms.
Bailey provided Detective Brimmer—including whether it
was exculpatory—such information is not an appropriate
basis on which to find the existence of probable cause as
a matter of law. Nor is the information that Ms. Goldych
apparently provided Detective Brimmer on May 7, 2019,
during his third attempt to speak with her. Dkt. No. 77-19
at 2-3. Given Ms. Goldych's intoxication, memory, and the
absence of a written statement from her, the information
attributed to her does not establish probable cause entitling
Defendants to judgment as a matter of law. See supra n.7.
Defendants’ third argument rests on the presumption of
probable cause created by a grand jury indictment. See, e.g.,
Werkheiser v. Cnty. of Broome, 655 F. Supp. 3d 88, 103
(N.D.N.Y. 2023) (“[I]ndictment by a grand jury creates a
presumption of probable cause that may only be rebutted
by evidence that the indictment was procured by ‘fraud,
perjury, the suppression of evidence or other police conduct
undertaken in bad faith.”) (quoting Savino v. City of New York,
331 F.3d 63, 72 (2d Cir. 2003)). The parties agree that such
a presumption applies in this case, but dispute whether the
factual record rebuts it. Dkt. No. 77-56 at 23; Dkt. No. 85 at
28-29.
A reasonable juror could conclude that the current factual
record rebuts such a presumption. Not only was the
prosecution against Plaintiff dismissed, senior prosecutors
in the DA's Office have indicated that the basis for the
prosecution was deeply flawed. Dkt. No. 85-7 at 1; Dkt.
No. 85-11 at 9. A reasonable juror could find, for example,
that Plaintiff's prosecution was initiated by (i) the arrest
report charging Plaintiff that Detective Brimmer prepared;
(ii) the allegedly false confession obtained by Detectives
Brimmer and Beauchine, see, e.g., Ekukpe v. Santiago, 823
F. App'x 25, 32 (2d Cir. 2020) (“A jury ‘may permissibly
find that a defendant initiated a prosecution where he filed
the charges or prepared an alleged false confession and
forwarded it to prosecutors.’ ”) (quoting Manganiello v.
City of New York, 612 F.3d 149, 163 (2d Cir. 2010));
Dufort, 874 F.3d at 353 (“The ‘initiation’ requirement is
met when the plaintiff can establish that police officers
forwarded statements to a prosecutor without sharing that
the statements were suspect.”) (citing Manganiello, 612 F.3d
at 163); and/or (iii) the purportedly false statements in the
police reports prepared by Detective Brimmer, Officer Cecile,
Officer Tolone, and Officer Russell, 19 see, e.g., Cameron v.
City of New York, 598 F.3d 50, 63 (2d Cir. 2010) (“[G]enerally
in malicious prosecution actions alleging that a police officer
provided false information to a prosecutor, what prosecutors
do subsequently has no effect whatsoever on the police
officer's initial, potentially tortious behavior.”) (collecting
cases); Werkheiser, 655 F. Supp. 3d at 103 (“A defendant
could have initiated a prosecution ‘by creating material, false
information and forwarding that information to a prosecutor
or by withholding material information from a prosecutor.’ ”)
(first quoting Ying Li v. City of New York, 246 F. Supp. 3d 578,
605 (E.D.N.Y. 2017); additional citations omitted).
Moreover, Plaintiff is correct that a “jury examining Detective
Brimmer's police report alongside Ms. Bailey's statements
could conclude that Det. Brimmer fabricated what [Ms.]
Bailey told him to support, rather than contradict, Mr. Adams’
false confession.” Dkt. No. 85 at 27; see also Manganiello,
612 F.3d at 162 (“Like a prosecutor's knowing use of false
evidence to obtain a tainted conviction, a police officer's
fabrication and forwarding to prosecutors of known false
evidence works an unacceptable ‘corruption of the truth-
seeking function of the trial process.”) (quoting Ricciuti, 124
F.3d at 130); N.Y. Crim. Proc. Law § 60.50 (“A person may
not be convicted of any offense solely upon evidence of
a confession or admission made by him without additional
proof that the offense charged has been committed.”); N.Y.
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Crim. Proc. Law § 70.10(1) (“[E]vidence is not legally
sufficient when corroboration required by law is absent.”).
*26 The Court also agrees with Plaintiff that a
reasonable juror could conclude that the police reports from
the Responding Officers contained “false or misleading
information that wrongfully inculpated Mr. Adams and failed
to include key exculpatory information.” Dkt. No. 85 at 28;
see also Manganiello, 612 F.3d at 162 (“Where there is some
indication in the police records that, as to a fact crucial to
the existence of probable cause, the arresting officers may
have ‘lied in order to secure an indictment’ and ‘a jury could
reasonably find that the indictment was secured through bad
faith or perjury,’ the presumption of probable cause created
by the indictment may be overcome.”) (quoting Boyd v. City
of New York, 336 F.3d 72, 77 (2d Cir. 2003)); Werkheiser,
655 F. Supp. 3d at 104 (“Alternatively, the presumption ‘can
be overcome by a showing by claimant that the conduct of
the police deviated so egregiously from acceptable police
activity as to demonstrate an intentional or reckless disregard
for proper procedures.’ ”) (quoting Hill v. Melvin, No. 05-
cv-6645, 2006 WL 1749520, at *13 (S.D.N.Y. June 27,
2006)).
For instance, Officer Cecile's report states that Ms. “Bailey
stated that the suspect was an old black man.” Dkt. No. 77-6 at
5. But this assertion is contrary to the actual description of the
suspect contained in the 911 call notes, Dkt. No. 90-1 at ¶ 18
(indicating that Ms. Bailey stated the suspect was only 25 to
35 years old) and the similar description Ms. Bailey appears
to have provided to Officer Cecile during their subsequent
phone conversation, Dkt. No. 77-15 at 16:43 (Officer Cecile
clarifying “the guy who got knocked out was, like, in his mid
to late 20s, and it was, like, an older guy, like 35 to 40, that hit
him?”). Officer Cecile also noted in his report that the suspect
had been described as wearing “a green sweat suit,” while
Plaintiff was wearing “a grayish/teal puffy jacket and green
pants[.]” Dkt. No. 77-6 at 5. As detailed earlier, while there
is presently a factual dispute as to whether Plaintiff's pants
were green, Defendants do not contend that Plaintiff's jacket
was green. See supra Section IV.A.2 (Defendants arguing that
Plaintiff's “hat, shirt and pants all appeared to be different
shades of green”) (quoting Dkt. No. 77-56 at 14); see also
Dkt. No. 77-10 at 3 (report from non-party officer stating
that Plaintiff had a “Black winter coat”). Similarly, Officer
Tolone's report states that the suspect was wearing “a green
jump suit,” while Plaintiff “was wearing green pants and a
grey / green vest.” Dkt. No. 77-8 at 2. As also detailed earlier,
Defendants do not contend that Plaintiff was wearing a vest at
all. See supra Section IV.A.2; see also Dkt. No. 77-10 (report
from non-party officer listing Plaintiff's items of clothing,
none of which are a vest). Given all this, a reasonable juror
could find that Officers Cecile and Tolone fabricated portions
of their reports to align their descriptions of Plaintiff with that
of the suspect.
Additionally, Officers Cecile and Russell omitted any
mention of the exculpatory facts that Ms. Bailey, 20 Ms.
Goldych, and Plaintiff all indicated that a third man had
assaulted Mr. Jones and left the scene. Dkt. Nos. 77-6, 77-7;
see also Werkheiser, 655 F. Supp. 3d at 103; Napolitano, 29
F.4th at 107. For his part, Officer Tolone's report states only
that “when we initially arrived on scene Adams stated there
was another male that started a fight with Jones.” Dkt. No.
77-8 at 2.
*27 With respect to each Individual Defendant, then, a
reasonable juror could find that the indictment “was procured
by ‘fraud, perjury, the suppression of evidence or other police
conduct undertaken in bad faith,’ ” or “that the conduct of
the police deviated so egregiously from acceptable police
activity as to demonstrate an intentional or reckless disregard
for proper procedures,” Werkheiser, 655 F. Supp. 3d at 104
(first quoting Savino, 331 F.3d at 72; and then quoting
Hill, 2006 WL 1749520, at *13). Given the current factual
record, a reasonable juror could find that the presumption
of probable cause is rebutted. Hicks v. Marchman, 719 F.
App'x 61, 65 (2d Cir. 2018) (“[T]he presumption can be
rebutted by showing ‘that the police witnesses have not made
a complete and full statement of facts either to the Grand
Jury or the District Attorney, that they have misrepresented
or falsified evidence, that they have withheld evidence or
otherwise acted in bad faith[.]’ ”) (second alteration in
original) (quoting Colon, 468 N.Y.S.2d 453, 455 N.E.2d
at 1250-51). Accordingly, the Court denies the Motion as
to Plaintiff's Section 1983 claim for malicious prosecution
against the Individual Defendants. 21
C. Fabricated Evidence under Section 1983
In order to prevail on “a Section 1983 fabrication of evidence
claim, a plaintiff must demonstrate that ‘(1) [an] investigating
official (2) fabricat[ed] information (3) that is likely to
influence a jury's verdict, (4) forward[ed] that information to
prosecutors, and (5) the plaintiff suffer[ed] a deprivation of
life, liberty, or property as a result.” Ortiz v. Stambach, 137
F.4th 48, 67 (2d Cir. 2025) (alterations in original) (quoting
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Garnett v. Undercover Officer C0039, 838 F.3d 265, 279 (2d
Cir. 2016)).
Defendants first argue that Plaintiff's fabricated evidence
claim is limited to his allegedly false confession and should
thus be dismissed against the Responding Officers, “who
were not present for Plaintiff's interview and were not
involved in his confession.” Dkt. No. 77-56 at 25, Dkt. No. 90
at 8. The Court agrees with Plaintiff that this claim is not so
limited, and that “there are disputed issues of fact from which
a reasonable juror could find that” each of the Responding
Officers “fabricated inculpatory evidence [or] suppressed
exculpatory evidence to implicate [Plaintiff] wrongly.” Dkt.
No. 85 at 30; see also supra Section IV.B.
As to the confession, Defendants’ renewed argument
that Plaintiff voluntarily waived his Miranda rights and
voluntarily confessed remains unpersuasive for the reasons
previously set forth. Dkt. No. 77-56 at 25; see also supra
Section IV.A.3.b.
Defendants’ final argument that the Detectives did not know
Plaintiff's confession was false is similarly insufficient to
grant summary judgment on this claim. Dkt. No. 77-56
at 25-26. A reasonable juror could view the videotaped
interrogation of Plaintiff and conclude that the Detectives
knew Plaintiff's eventual confession was false because, for
example, Plaintiff was visibly intoxicated; Plaintiff denied
assaulting Mr. Jones nearly 200 times, Dkt. No. 85-2 at ¶ 570;
Plaintiff “became emotionally and cognitively distressed,
resigned, and compelled to offer the narrative of the crime
being demanded of him,” as Defendants’ expert opined after
viewing the videotaped interrogation, Dkt. No. 77-52 at
11-13; or, as Detective Brimmer noted in his police report,
because Plaintiff “provided several different versions about
what occurred,” Dkt. No. 77-19 at 2, some of which were
implausible, see, e.g., Dkt. No. 77-22 at 86:22-87:22 (Plaintiff
stating that he was able to hit Mr. Jones in the head three
of four times with a stick before Mr. Jones fell down);
id. at 100:8-21 (Plaintiff stating that Mr. Jones punched
him twice over the course of the day, both times on the
“same place” on his lip and Detective Brimmer responding
“[y]eah, he knows where to get you, man. He's got aim on
that thing, huh”). See also Ortiz, 137 F.4th at 62, 67-68
(“[T]he law does not require a plaintiff to prove that police
officers fabricated evidence or engaged in bad faith through
any particular type of evidence and, thus, a plaintiff may
do so entirely through circumstantial evidence.... ‘The jury,
of course, was not required to believe [the defendant's]
testimony denying knowledge. Issues relating to state of
mind, such as knowledge and intent, may be influenced
by assessments of credibility and often must be established
by circumstantial evidence.’ ”) (last alteration in original)
(quoting United States v. Ocampo-Guarin, 968 F.2d 1406,
1410 (1st Cir. 1992)). Moreover, if a jury were to believe Ms.
Bailey that Detective Brimmer fabricated various statements
he attributed to her in his police report, they could also
conclude that he did so knowingly.
*28 Accordingly, the Court denies the Motion as to
Plaintiff's Section 1983 claim for fabricated evidence against
the Individual Defendants. 22
D. Monell Claim
Section 1983 “does not impose vicarious liability on a
municipality for the actions of its employees.” Alexander, 132
F.4th at 160 (citing Friend v. Gasparino, 61 F.4th 77, 93 (2d
Cir. 2023)). Instead, “[t]o hold a [municipality] liable under
§ 1983 for the unconstitutional actions of its employees, a
plaintiff is required to plead and prove three elements: (1) an
official policy or custom that (2) causes the plaintiff to be
subjected to (3) a denial of a constitutional right.” Lucente
v. Cnty. of Suffolk, 980 F.3d 284, 297 (2d Cir. 2020) (second
alteration in original) (first quoting Wray v. City of New York,
490 F.3d 189, 195 (2d Cir. 2007); and then citing Monell v.
Dep't. of Soc. Servs. of the City of New York, 436 U.S. 658,
690-91, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978)). As to the first
element, a plaintiff can establish the existence of an official
policy or custom in four ways:
(1) a formal policy endorsed by the
municipality, ...; (2) actions directed
by the government's “authorized
decisionmakers” or “those who
establish governmental policy,” ...;
(3) a persistent and widespread
practice that amounts to a custom
of which policymakers must have
been aware, ...; or (4) a
“constitutional violation[ ] resulting
from [policymakers’] failure to train
municipal employees[.]”
Deferio v. City of Syracuse, 770 F. App'x 587, 589-90 (2d Cir.
2019) (final alteration added) (first citing Turpin v. Mailet,
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619 F.2d 196, 199 (2d Cir. 1980); then quoting Pembaur v.
City of Cincinnati, 475 U.S. 469, 481, 106 S.Ct. 1292, 89
L.Ed.2d 452 (1986); then citing Turpin, 619 F.2d at 199; and
then quoting City of Canton v. Harris, 489 U.S. 378, 380, 109
S.Ct. 1197, 103 L.Ed.2d 412 (1989)).
Defendants first argue that Plaintiff's Monell claim should
be dismissed because there is no underlying constitutional
violation. Dkt. No. 77-56 at 26. Given that Plaintiff's
constitutional claims survive summary judgment, this
argument is unavailing. See supra Section IV.A-C.
Defendants next argue that the purportedly similar arrests
referenced in one paragraph of the Complaint do not establish
a Monell claim. Dkt. No. 77-56 at 27-28. Those alleged
instances appear to relate to excessive force and racial
profiling claims against non-party officers in the Syracuse
Police Department over a span of some years. Dkt. No.
1 at ¶ 61. In part because Plaintiff has not brought an
excessive force claim, the Court agrees with Defendants
that these alleged instances are insufficiently similar to the
constitutional deprivations Plaintiff allegedly suffered. See
Campo v. City of New York, No. 19-cv-04364, 2022 WL
970730, at *12 (E.D.N.Y. Mar. 31, 2022) (“A plaintiff may
also plead the existence of de facto customs or policies
‘by citing to complaints in other cases that contain similar
allegations.’ ”) (quoting Gaston v. Ruiz, No. 17-cv-1252, 2018
WL 3336448, at *6 (E.D.N.Y. July 6, 2018)). As Defendants
correctly point out in reply, Plaintiff also has not opposed the
Motion on this narrow issue. Dkt. No. 90 at 8-9; see also
Jackson, 766 F.3d at 195. Accordingly, any Monell claim
based on these dissimilar cases or racial profiling is dismissed.
*29 For whatever reason, Defendants do not squarely
address the core of Plaintiff's Monell claim. Compare
Dkt. Nos. 77-56, 90, with Dkt. No. 1 at ¶¶ 52-60
(alleging, inter alia, that Defendant City “has a policy,
custom, practice and pattern of conduct in place that
enables its agents and employee[ ] police officers to act
with deliberate indifference to the constitutional rights
of individuals[,]” including “inadequate guidelines for
conducting interrogations, obtaining false confessions and
corroborating false confessions with eye witness accounts”).
Plaintiff's opposition to the Motion argues that Defendant
City was deliberately indifferent to his constitutional
rights by failing “to supervise and/or train its officers to
undertake constitutionally lawful detentions, interrogations,
and practices to forego the fabrication of evidence.” Dkt. No.
85 at 31-33 (citing Dkt. No. 1 ¶¶ 53, 54, 58).
“A municipality's culpability for a deprivation of rights is at
its most tenuous where a claim turns on a failure to train.”
Connick v. Thompson, 563 U.S. 51, 61, 131 S.Ct. 1350, 179
L.Ed.2d 417 (2011) (citing Oklahoma City v. Tuttle, 471
U.S. 808, 822-23, 105 S.Ct. 2427, 85 L.Ed.2d 791 (1985)
(plurality opinion)). The Second Circuit has set forth the
following requirements before a municipality's failure to train
or supervise constitutes deliberate indifference:
“First, the plaintiff must show that a policymaker knows
‘to a moral certainty’ that her employees will confront a
given situation.” ... “Second, the plaintiff must show that
the situation either presents the employee with a difficult
choice of the sort that training or supervision will make less
difficult or that there is a history of employees mishandling
the situation.” ... “Finally, the plaintiff must show that
the wrong choice by the city employee will frequently
cause the deprivation of a citizen's constitutional rights.” ...
“In addition, at the summary judgment stage, plaintiffs
must ‘identify a specific deficiency in the city's training
program and establish that that deficiency is closely related
to the ultimate injury, such that it actually caused the
constitutional deprivation.’ ”
Jenkins, 478 F.3d at 94 (first quoting Walker v. City of New
York, 974 F.2d 293, 297, 298 (2d Cir. 1992); and then quoting
Green v. City of New York, 465 F.3d 65, 81 (2d Cir. 2006)).
Regardless of whether Plaintiff has satisfied the first three
of these requirements, his assertions with respect to the
Responding Officers’ training lack the necessary factual
detail and are too conclusory. Dkt. No. 85 at 31. He fails to
identify any “specific deficiency in the city's training program
and establish that that deficiency is closely related to the
ultimate injury[,]” Green, 465 F.3d at 81. Accordingly, any
Monell claim based on the training of the Responding Officers
is dismissed. For similar reasons, any Monell claim based
on training related to fabricated evidence generally is also
dismissed.
Plaintiff's arguments as to the training the Detectives received
warrant a different outcome however. Plaintiff contends that
the Detectives received inadequate “training on how to avoid
false confessions” and “improperly interrogated” Plaintiff,
leading to his allegedly false confession. Dkt. No. 85 at 33.
Unlike with the Responding Officers and fabricated evidence
more generally, Plaintiff also sets forth various facts regarding
the Detectives’ interrogation training, facts which Defendants
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largely do not deny. Dkt. No. 90-1 at ¶¶ 523-28, 531-33,
587-88.
Additionally, the Report that Plaintiff includes in his
opposition to the Motion states that a deputy police chief at
the Syracuse Police Department “was able to explain there
is case law which supports interviewing a person who is
intoxicated. The only limitation to this is if the person being
interviewed is intoxicated to the point of being in a manic
state.” Dkt. No. 85-11 at 9. The Report further states that “it
is a matter of training that detectives are trained on the fact
that interviewing an intoxicated person is lawful, unless in this
manic state.” Id. The Report indicates that neither Detective
thought Plaintiff was “excessively intoxicated” during the
interview on May 6, 2019. Id. at 11, 12. Seemingly because
of such training, the Report determined that “[t]herefore, the
actions by [the D]etectives during that interview were lawful
and proper.” Id. 9.
*30 The Report went on to conclude that Plaintiff's “claim
that he was arrested and charge[d] for a crime he did not
commit is true[,]” and that while Plaintiff was charged “due
to his own admission[,]” “[t]he interview conducted by Det.
Beauchine and then Det. Brimmer was lawful and proper.
There was no violation of any rules and regulations by
Det. Beauchine or Det. Sgt. Brimmer, or any officer.” Id.
at 12. 23 Following that conclusion are signatures for the
chief of police, the first deputy chief, a bureau chief, a
supervisor, and the investigating sergeant. Id. at 13. Jones
v. Town of East Haven, 691 F.3d 72, 81 (2d Cir. 2012)
(“To establish deliberate indifference a plaintiff must show
that a policymaking official was aware of constitutional
injury, or the risk of constitutional injury, but failed to
take appropriate action to prevent or sanction violations of
constitutional rights.”); Donovan v. Norwich City Sch. Dist.,
No. 19-cv-1638, 2022 WL 623904, at *11 (N.D.N.Y. Mar.
3, 2022) (“An official's title, though not dispositive of his
authority to make policy, is relevant for the interferences
fairly to be drawn therefrom.”) (quoting Rookard v. Health &
Hosps. Corp., 710 F.2d 41, 45 (2d Cir. 1983)).
Drawing all reasonable inferences in Plaintiff's favor for
purposes of summary judgment, a reasonable juror could
find the requirements for deliberate indifference satisfied
with respect to the Detectives’ training for interrogating
intoxicated individuals. First, the apparent existence of this
very training reflects “a moral certainty” that detectives
will need to interview such individuals. Jenkins, 478 F.3d
at 94 (citation omitted). Second, Detective Brimmer's own
testimony suggests that interviewing intoxicated individuals
presents a “difficult choice.” Id. (citation omitted); Dkt.
No. 77-49 at 25:16-24 (Detective Brimmer testifying with
respect to intoxication and mental capacity during custodial
interviews that “I can't think of any exact incident where
that has occurred but I do understand how, you know,
severe intoxication or, you know, severe mental health where
someone's having a schizophrenic outbreak, or something to
that effect, is certainly going to affect what they're telling
us. And it would be a judgment call and we likely would not
interview that person if they're under extreme intoxication or
having an emotional and/or mental health crisis.”) (emphasis
added). Third, Defendants’ own expert indicates that the
“wrong choice” can result in a false confession, and thus a
deprivation of constitutional rights. Jenkins, 478 F.3d at 94
(citation omitted); Dkt. No. 77-52 at 11-13; see also Dkt. No.
85-7 at 1 (“The district attorney said the case shows police and
prosecutors need better training in identifying the dynamics
of false confessions. ‘While it seems counterintuitive that
someone would confess to something they did not do, it
happens,’ [DA] Fitzpatrick said. ‘And in this case, I hope
all involved analyze the root causes of why this happened.
[’]”). Finally, the Report identifies a “specific deficiency
in the city's training program,” Jenkins, 478 F.3d at 94
(citation omitted), in that the only limitation on interrogating
intoxicated individuals appears to be when they are “in a
manic state,” 24 Dkt. No. 85-11 at 9.
*31 At bottom, Plaintiff contends that the Detectives’
training caused them to violate his constitutional rights, by
interrogating him while he was intoxicated and coercing
him into providing a false confession. Plaintiff may well
ultimately fail to prove such a claim. See, e.g., Outlaw v. City
of Hartford, 884 F.3d 351, 373 (2d Cir. 2018) (“[D]eliberate
indifference is a stringent standard of fault.”) (alteration in
original) (quoting Connick, 563 U.S. at 61, 131 S.Ct. 1350).
But he has done enough to survive summary judgment—
particularly in the absence of more specific argument from
Defendants regarding deliberate indifference. According, the
Motion is denied as to Plaintiff's Monell claim based on the
Detectives’ interrogation training.
E. Negligent Supervision and Retention under New
York law
In general, “[t]o state a claim for negligent supervision or
retention under New York law, in addition to the standard
elements of negligence, a plaintiff must show[, inter alia,] (1)
that the tort-feasor and the defendant were in an employee-
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employer relationship ...; [and] (2) that the employer ‘knew
or should have known of the employee's propensity for
the conduct which caused the injury’ prior to the injury's
occurrence[.]” Ehrens v. Lutheran Church, 385 F.3d 232, 235
(2d Cir. 2004) (first citing D'Amico v. Christie, 71 N.Y.2d 76,
524 N.Y.S.2d 1, 518 N.E.2d 896, 901-02 (1987); and then
quoting Kenneth R. v. Roman Catholic Diocese of Brooklyn,
229 A.D.2d 159, 654 N.Y.S.2d 791, 793 (N.Y. App. Div.
1997)). Additionally, “[w]hen a negligence claim is asserted
against a municipality or its employees, the threshold inquiry
is ‘whether the municipal entity was engaged in a proprietary
function or acted in a governmental capacity at the time
the claim arose.’ ” Velez v. City of New York, 730 F.3d
128, 134 (2d Cir. 2013) (quoting Applewhite v. Accuhealth,
Inc., 21 N.Y.3d 420, 972 N.Y.S.2d 169, 995 N.E.2d 131,
134 (2013)). “Providing police protection has long been
recognized as a quintessential governmental function” and
when “a municipality undoubtedly acts in a governmental
capacity, a plaintiff may not recover without proving that the
municipality owed a ‘special duty’ to the injured party.” Id.,
972 N.Y.S.2d 169, 995 N.E.2d at 135 (citing Valdez v. City of
New York, 18 N.Y.3d 69, 936 N.Y.S.2d 587, 592, 960 N.E.2d
356 (2011)).
Defendants argue, inter alia, that this negligence claim
should be dismissed (i) against the Individual Defendants
because they were all employees and cannot be held liable
as an employer; and (ii) against Defendant City because its
employees were acting in the scope of their employment as
police officers. Dkt. No. 77-56 at 28-30. Plaintiff provides
no persuasive response. Dkt. No. 85 at 33-34. The Court
also notes that Plaintiff offers no evidence regarding any
of the Individual Defendants’ “propensity for the conduct
which caused the injury,” Ehrens, 385 F.3d at 235 (citation
omitted), nor any evidence that Defendant City owed him “a
special relationship beyond the duty that is owed to the public
generally,” Velez, 730 F.3d at 135. Accordingly, the Court
grants the Motion as to Plaintiff's tenth claim.
F. Qualified Immunity for the Individual Defendants
Defendants argue that (i) the Individual Defendants are
entitled to qualified immunity on Plaintiff's false arrest
and malicious prosecution claims because of the collective
knowledge doctrine and because of “plausible instructions
from a superior officer;” (ii) the Individuals Defendants are
entitled to qualified immunity on Plaintiff's pre-interrogation
detention because the multi-hour detention was “objectively
reasonable;” (iii) the Individual Defendants are entitled to
qualified immunity because they had arguable probable cause
to arrest Plaintiff; and (iv) the Detectives are entitled to
qualified immunity with respect to Plaintiff's confession
because “there is no evidence that Plaintiff was not of
sound mind or so intoxicated as to render his confession
involuntary[.]” Dkt. No. 77-56 at 30-38. Defendants do not
appear to contend that they are entitled to qualified immunity
as to the balance of Plaintiff's fabricated evidence claim. See
id.
*32 “Qualified immunity attaches when an official's conduct
does not violate clearly established statutory or constitutional
rights of which a reasonable person would have known.”
White v. Pauly, 580 U.S. 73, 78-79, 137 S.Ct. 548, 196
L.Ed.2d 463 (2017) (per curiam) (citation modified). The
application of qualified immunity requires the Court to
undertake a two-pronged inquiry: whether “(1) ... the official
violated a statutory or constitutional right, and (2) ... the
right was ‘clearly established’ at the time of the challenged
conduct.” Jones v. Treubig, 963 F.3d 214, 224 (2d Cir. 2020)
(alterations in original) (quoting Ricciuti v. Gyzenis, 834 F.3d
162, 167 (2d Cir. 2016)). Under the “clearly established”
prong, the law does not require “a case directly on point,”
but “existing precedent must have placed the statutory or
constitutional question beyond debate.” Id. (citing Ashcroft
v. al-Kidd, 563 U.S. 731, 741, 131 S.Ct. 2074, 179 L.Ed.2d
1149 (2011)); see, e.g., Golino v. City of New Haven, 950
F.2d 864, 870 (2d Cir. 1991) (“The right not to be arrested
or prosecuted without probable cause has, of course, long
been a clearly established constitutional right.”); Ricciuti,
124 F.3d at 128, (“The right to be free from arrest or
prosecution in the absence of probable cause is a long
established constitutional right.”); Weaver v. Brenner, 40 F.3d
527, 533-34 (2d Cir. 1994) (“It is clear that [in 1989] ...
a criminal suspect could not lawfully be compelled to be
a witness against himself.... It was also clearly established
in 1989 that police could not lawfully coerce incriminating
statements from an in-custody criminal suspect.”); Zahrey
v. Coffey, 221 F.3d 342, 345 (2d Cir. 2000) (“We hold that
there is a constitutional right not to be deprived of liberty
as a result of the fabrication of evidence by a government
officer acting in an investigatory capacity .... [and] that this
right was clearly established in 1996[.]”); Morse v. Fusto,
804 F.3d 538, 541 (2d Cir. 2015) (“[T]he actions of the
defendants upon which [plaintiff] bases his claims were
the knowing creation of false or misleading evidence by a
government officer acting in an investigative capacity. We
have held that such activity by a government official qualifies
as an unconstitutional deprivation of the victim's rights.
This right was, moreover, clearly established at the time of
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the defendants’ conduct.”); Horn v. Adger, Nos. 24-1034,
24-1038, 2025 WL 1618761, at *3 (2d Cir. June 9, 2025)
(summary order) (“On appeal, the Detectives do not contest
our clearly established caselaw holding that police officers are
liable under § 1983 for ‘creat[ing] false information likely to
influence a jury's decision and forward[ing] that information
to prosecutors.’ ”) (alterations in original) (citation omitted).
“Courts have discretion to decide the order in which to engage
these two prongs.” Tolan v. Cotton, 572 U.S. 650, 656, 134
S.Ct. 1861, 188 L.Ed.2d 895 (2014) (citation omitted).
At this stage, the Court need only address the “constitutional
violation” prong. As detailed above, whether any Defendant
violated Plaintiff's constitutional rights depends on numerous
disputed issues of material fact. The parties dispute, for
example, when Plaintiff's detention ripened into an arrest, see
supra Section IV.A.1; whether the Individual Defendants had
probable cause to arrest Plaintiff prior to his interrogation, see
supra Section IV.A.2-3.a; the extent of Plaintiff's intoxication
during the interrogation, as well as the voluntariness and
veracity of his statements, see supra Section IV.A.3.b;
and whether the Individual Defendants improperly initiated
Plaintiff's prosecution, see supra Section IV.B. Such factual
disputes preclude a finding of qualified immunity at this stage.
See, e.g., Dufort, 874 F.3d at 343 (“We conclude that the
district court's grant of summary judgment as to [plaintiff]’s
false arrest and malicious prosecution claims was premature,
because disputed questions of material fact remain regarding
key aspects of the criminal investigation and subsequent
prosecution. We further conclude that those same questions
of material fact preclude a grant of qualified immunity at the
summary judgment stage.”).
The Court reaches the same conclusion with respect to
Defendants’ arguments regarding reliance on “plausible
instructions” from a superior officer and arguable probable
cause. As to the former, the limited record evidence cited by
Defendants is insufficient to establish, as a matter of law, that
such instructions were given. Dkt. No. 77-55 at 34-35. In
any event, as the authority on which Defendants rely makes
clear, id. at 35, even if such instructions were given, that does
not end the inquiry. See Anthony v. City of New York, 339
F.3d 129, 138 (2d Cir. 2003) (“Plausible instructions from a
superior or fellow officer support qualified immunity where,
viewed objectively in light of the surrounding circumstances,
they could lead a reasonable officer to conclude that the
necessary legal justification for his actions exists (e.g.[,]
a warrant, probable cause, exigent circumstances).”) (first
quoting Bilida v. McCleod, 211 F.3d 166, 174-75 (1st Cir.
2000); additional citations omitted). And the disputed factual
record precludes reaching a determination with respect to this
inquiry.
As to arguable probable cause, the current factual record also
precludes summary judgment. See, e.g., Napolitano, 29 F.4th
at 105 (“A police officer has arguable probable cause ‘if either
(a) it was objectively reasonable for the officer to believe
that probable cause existed, or (b) officers of reasonable
competence could disagree on whether the probable cause test
was met.’ ”) (quoting Figueroa v. Mazza, 825 F.3d 89, 100 (2d
Cir. 2016)); Jenkins, 478 F.3d at 88 (“[U]nder both New York
and federal law, summary judgment dismissing a plaintiff's
false arrest claim is appropriate if the undisputed facts indicate
that the arresting officer's probable cause determination was
objectively reasonable.... If, however, on the undisputed
facts the officer would be unreasonable in concluding that
probable cause existed, or if the officer's reasonableness
depends on material issues of fact, then summary judgment
is inappropriate for both New York and federal false arrest
claims.”) (first citing Cerrone v. Brown, 246 F.3d 194, 199
(2d Cir. 2001); and then citing Dillard v. City of Syracuse, 51
A.D.2d 432, 381 N.Y.S.2d 913, 915 (N.Y. App. Div. 1976)).
*33 In sum, the disputed factual record precludes summary
judgment based on qualified immunity. See, e.g., Eaton
v. Estabrook, 144 F.4th 80, 89 (2d Cir. 2025) (“In the
qualified immunity context, ‘[p]re-trial resolution of the
defense [of qualified immunity] ... may be thwarted by a
factual dispute.’ ... ‘Any disputed questions of material fact
—such as the acts of the defendant and their effects on the
plaintiff—are to be determined by the factfinder.’ ”) (final
alteration added) (first quoting Warren v. Dwyer, 906 F.2d 70,
74 (2d Cir. 1990); and then quoting Walker v. Schult, 45 F.4th
598, 617 (2d Cir. 2022)). Given the current factual record,
Defendants have not carried their burden to demonstrate that
no rational juror could conclude that they violated Plaintiff's
constitutional rights. Coollick v. Hughes, 699 F.3d 211, 219
(2d Cir. 2012) (“Thus, a decision dismissing a claim based on
qualified immunity at the summary judgment stage may only
be granted when a court finds that an official has met his or
her burden demonstrating that no rational jury could conclude
‘(1) that the official violated a statutory or constitutional right,
and (2) that the right was clearly established at the time of
the challenged conduct.’ ”) (quoting al-Kidd, 563 U.S. at 735,
131 S.Ct. 2074). 25
G. John Does 1-100
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Defendants also argue that because Plaintiff has not amended
his Complaint, the Doe Defendants should be dismissed
without prejudice. Dkt. No. 77-56 at 30. Plaintiff responds
with a single sentence “reassert[ing] his request to amend the
complaint to include additional defendants” and no authority
in support of such a request. Dkt. No. 85 at 34.
Almost two years ago, Magistrate Judge Katz considered
and denied Plaintiff's request to amend the Complaint to
include two additional defendants. Dkt. No. 64. Since that
time, Plaintiff has not sought a review of that decision and has
not undertaken any further efforts to amend the Complaint.
Plaintiff now offers no authority and no new arguments in
support of his cursory request. Plaintiff's renewed request is
denied for the reasons set forth by Magistrate Judge Katz,
Dkt. No. 64, and all claims against the Doe Defendants are
dismissed, see, e.g., Kaczmarek v. City of Schenectady, No.
10-cv-1193, 2013 WL 5506276, at *2 (N.D.N.Y. Oct. 4, 2013)
(“Because plaintiffs have failed to timely identify and serve
the John Doe defendants, plaintiffs’ claims against both John
Doe defendants are dismissed.”).
V. CONCLUSION
Accordingly, the Court hereby
ORDERS that Defendants’ motion for summary judgment,
Dkt. No. 77, is GRANTED in part and DENIED in part,
as set forth in Section IV of this Memorandum-Decision and
Order; and the Court further
ORDERS that the Clerk serve a copy of this Memorandum-
Decision and Order on the parties in accordance with the
Local Rules.
IT IS SO ORDERED.
All Citations
Slip Copy, 2025 WL 2772081
Footnotes
1 The Complaint incorrectly spells Officer Tolone's last name as “Toltone.” Dkt. No. 77-55 at 1 n.1. Citations
to docket entries utilize the pagination generated by CM/ECF, the Court's electronic filing system, and not
the document's internal pagination.
2 This case was reassigned to the undersigned on January 19, 2023. Dkt. No. 34.
3 Unless otherwise indicated, the following facts have been asserted by the parties in their statements of
material facts with accurate record citations, and expressly admitted or not denied with a supporting record
citation in response. See N.D.N.Y. L.R. 56.1. The Court has also considered the parties’ other submissions
and attached exhibits. See generally Dkt. Nos. 77, 85-86, 90.
4 A person with a BAC of 0.08 percent is considered intoxicated per se under New York's Vehicle and Traffic
Law (“VTL”). See N.Y. Veh. & Traf. Law § 1192(2); see also Dalmasi v. City of Mount Vernon, No. 13-cv-8672,
2014 WL 6645827, at *1 n.3 (S.D.N.Y. Nov. 24, 2014) (noting that a court may “take judicial notice of the
VTL in deciding” summary judgment) (citations omitted).
5 During his deposition, Office Cecile characterized this statement as “police banter.” Dkt. No. 77-47 at 74:13-17
(“Q. So, it's definitely him doesn't mean -- it doesn't mean that you were sure it was him? A. Right. That's
police banter. I wasn't sure.”).
6 Officer Russell testified during her deposition that she already knew Plaintiff from “[p]rior incidents,” none
involving violence. Dkt. No. 77-46 at 104:16-25.
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7 Seemingly in the early morning of May 7, 2019, Detective Brimmer again tried to speak with Ms. Goldych, who
“still seemed too intoxicated” and “could speak a little but was talking about outlandish things not related to
this incident.” Dkt. No. 77-19 at 3. When Detective Brimmer spoke with Ms. Goldych a third time, at some point
later on May 7, 2019, she “seemed much less intoxicated.” Id. While in that state, Ms. Goldych apparently
told Detective Brimmer, inter alia, that she was “drunk[ ] at the time of the incident and does not remember all
of the details” and that “she was unaware that Jones had been injured.” Id. Detective Brimmer did not take a
written statement from Ms. Goldych. Id.; see also Dkt. No. 77-30 at 2 (non-party detective's report stating that
when he subsequently spoke with Ms. Goldych “[i]t should be noted throughout our conversation V. Goldych
referred to ‘spiritual incidents’ as well as being visited by ‘higher powers’ on several different occasions. She
often had a difficult time organizing her thoughts and at times did not directly answer questions. Based upon
her actions and statements her mental health status is unknown to me at this time.”).
8 Dr. Weisman further opined that “[t]o help determine typical reductions in human BAC, clinical services often
utilize a declination rate of 0.015% per hour.” Dkt. No. 77-52 at 11. This suggests that Plaintiff had a higher
BAC several hours prior, when Detective Brimmer read Plaintiff his Miranda rights. Dkt. No. 77-55 at ¶ 154.
Presumably, the corresponding physiological effects identified by Dr. Weisman would have been more severe
at that time and during the interrogation.
9 The transcript Defendants provided inaccurately characterizes Plaintiff's statement as “[m]umbles
incoherently.” Dkt. No. 77-22 at 105:7.
10 Members of the Onondaga County District Attorney's Office (“DA's Office”) have since identified deficiencies
with the process that led to this result. Dkt. No. 85-7 at 1 (“ ‘While it seems counterintuitive that someone
would confess to something they did not do, it happens,’ [Onondaga County District Attorney (“DA”) William]
Fitzpatrick said. ‘And in this case, I hope all involved analyze the root causes of why this happened. We have
done that in my office.’ .... ‘I have discussed the case with the prosecutor initially assigned and pointed out
mistakes that were made,’ Fitzpatrick said. ‘The prosecutor who presented it to the grand jury and missed
several red flags is no longer with the office.’ ”); Dkt. No. 85-11 at 9 (Syracuse Police Department report stating
that, according to Onondaga County Assistant District Attorney (“ADA”) Joe Coolican, “when the grand jury
proceeding occurred, there was no identification process done by the Assistant District Attorney overseeing
the case. Therefore, the witness [Ms. Bailey] was unaware Mr. Adams was the one who was in custody and
accused of these crimes.”).
11 From the record before the Court, it is not clear whether these charges were ever increased. Compare Dkt.
No. 77-33, with Dkt. No. 77-38.
12 The Complaint also contains various requests for relief. See, e.g., Dkt. No. 1 at ¶¶ 105-114; Dkt. No. 77-56
at 9 n.2.
13 To the extent that the Complaint states a claim for false arrest prior to this time, any such claim is dismissed
as abandoned, as is any claim for declaratory judgment. See Jackson v. Fed. Exp., 766 F.3d 189, 195 (2d
Cir. 2014) (“[A] partial response arguing that summary judgment should be denied as to some claims while
not mentioning others may be deemed an abandonment of the unmentioned claims.”); see also Dkt. No. 1
at ¶¶ 101-04; Dkt. No. 77-56 at 9 n.2.
14 It also contradicts a position that Defendants took in support of their prior dispositive motion, wherein they
argued that Plaintiff's “alleged drunken confession – insofar as it could possibly be construed as ‘false’ – did
not result in Plaintiff's loss of liberty as he had already been arrested and confined.” Dkt. No. 7-2 at 16.
15 Defendants do not contend that they had probable cause to arrest Plaintiff for any other offense. Dkt. No.
77-56 at 14.
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16 The parties further agree that the “collective or imputed knowledge doctrine” applies. See, e.g., Dkt. No.
77-56 at 12 (“[T]he relevant inquiry is whether the collective knowledge of the Syracuse Police Department
(‘SPD’) constituted probable cause, not whether a specific arresting officer had probable cause.”); Dkt. No.
85 at 14. Under that doctrine, an arrest “is permissible where the actual arresting ... officer lacks the specific
information to form the basis for probable cause ... but sufficient information to justify the arrest ... was known
by other law enforcement officials initiating ... the investigation” and “the other officers ‘have communicated
the information they possess individually, thereby pooling their collective knowledge to meet the probable
cause threshold.’ ” Brown v. City of New York, 798 F.3d 94, 99 (2d Cir. 2015) (alterations in original) (first
quoting Zellner v. Summerlin, 494 F.3d 344, 369 (2d Cir. 2007); and then quoting United States v. Chavez,
534 F.3d 1338, 1345 (10th Cir. 2008)).
17 Defendants do not dispute that Miranda warnings were necessary. See id.; Jackson v. Conway, 763 F.3d
115, 136 (2d Cir. 2014) (“The Miranda safeguards apply only to ‘custodial interrogations.’ ”).
18 Defendants’ argument that no Individual Defendants was personally involved in all of the events resulting in
Plaintiff's arrest and monthslong detention is unpersuasive. Dkt. No. 77-56 at 13, 21 n.6. As detailed above,
Plaintiff has sufficiently established the personal involvement of every Individual Defendant in the events
giving rise to his false arrest claims. See, e.g., Legree v. City of Waterbury, No. 22-cv-00659, 2024 WL
3964944, at *7 (D. Conn. Aug. 28, 2024) (“However, ‘personal involvement’ in an arrest is not limited to
officers who were physically involved in taking someone into custody. Courts in this Circuit have upheld false
arrest liability for non-arresting officers.”) (collecting cases).
19 Each report was affirmed under penalty of perjury. See, e.g., Dkt. No. 77-19 at 2-3; Dkt. No. 77-6 at 5; Dkt.
No. 77-8 at 2; Dkt. No. 77-7 at 2.
20 Defendants contend that Officer Russell was “unaware of the fact” that Ms. Bailey was still on the scene
when Officer Russell arrived. Dkt. No. 77-56 at 14. This assertion is contradicted by Officer Russell's BWC
footage. See Dkt. No. 77-16 at 0:01 (Officer Russell responding to Ms. Bailey's statement that “he got into a
fight with somebody, the other dude ran off, but he got knocked out” with “the other dude knocked out?”); id.
at 11:27 (Officer Russell stating “I wish we would have got those people that were ...” and gesturing towards
the sidewalk in the direction Ms. Bailey and her siblings had walked); id. at 17:21 (Officer Russell stating “did
anyone contact those people back,” presumably again in reference to Ms. Bailey and her siblings).
21 To the extent that the Complaint states a distinct claim for malicious prosecution against Defendant City
individually, or pursuant to New York law, any such clam is dismissed as abandoned. Compare Dkt. No.
77-56 at 22 & n.7, 24, with Dkt. No. 85 at 23-30; see also Jackson, 766 F.3d at 195. Plaintiff's separate Monell
claim against Defendant City is addressed further below. See infra Section IV.D.
22 To the extent that the Complaint states a distinct claim for fabricated evidence against Defendant City
individually, any such clam is dismissed as abandoned. Compare Dkt. No. 77-56 at 26, with Dkt. No. 85 at
30; see also Jackson, 766 F.3d at 195. Plaintiff's separate Monell claim against Defendant City is addressed
next. See infra Section IV.D.
23 This portion of the Report makes clear that Detective Brimmer was subsequently promoted to Detective
Sergeant, a position in which he supervises other detectives. See also Dkt. No. 77-49 at 12:20-13:1.
24 It is unclear from the current record how this limitation operates in practice, given that alcohol is a depressant
while “[m]ania is a condition in which you have a period of abnormally elevated, extreme changes in your
mood or emotions, energy level or activity level. This highly energized level of physical and mental activity and
behavior must be a change from your usual self and be noticeable by others.” Mania, CLEVELAND CLINIC,
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https://my.clevelandclinic.org/health/diseases/21603-mania (last visited September 29, 2025). Neither the
Report nor the Motion identify the referenced caselaw. See generally Dkt. Nos. 77, 85-11, 90.
25 Because factual disputes preclude summary judgment on the first prong of the qualified immunity inquiry,
the Court makes no determination as to the second prong, as noted earlier. Id. at 219-220; see also Linton
v. Zorn, 135 F.4th 19, 32 (2d Cir. 2025) (“But under either prong, courts may not resolve genuine disputes
of fact in favor of the party seeking summary judgment.”) (quoting Tolan, 572 U.S. at 656, 134 S.Ct. 1861).
For similar reasons, the Court also does not address the parties’ competing expert reports. Dkt. Nos. 77-53,
77-54, 85-14.
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Bailey v. Tricolla, Not Reported in F.Supp. (1995)
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1995 WL 548714
Only the Westlaw citation is currently available.
United States District Court, E.D. New York.
John BAILEY, etc., Plaintiff,
v.
Detective Philip TRICOLLA et alia, Defendants.
No. CV–94–4597 (CPS).
|
Sept. 12, 1995.
MEMORANDUM AND ORDER
SIFTON, Chief Judge.
*1 This is a civil rights action brought pro se by
plaintiff John Bailey on behalf of himself and his minor
daughter Natasha Bailey. The defendants are New York City
Police Detective Philip Tricolla, Detective Douglas Hopkins,
Detective Ortiz, Detective A. Semioli and an unnamed
employee of Channel 9 News, “John Doe.” Interpreting
plaintiffs' complaint liberally, as required by Haines v. Kerner,
404 U.S. 519 (1972), several federal and state claims are
stated. Plaintiffs assert claims under 42 U.S.C. § 1983 based
on the Fourth, Eighth and Fourteenth Amendments. The
following federal claims are asserted by John Bailey on
his own behalf: (1) that his Fourth Amendment right was
violated when his property was illegally searched and seized
by Detectives Tricolla, Semioli, and others, (2) that his Eighth
Amendment right was violated when the detectives failed
to stop an attack on plaintiff while in their custody, and (3)
that his 14th Amendment right to due process was violated
when the detectives filed false police reports and perjured
themselves testifying at his trial. The following state claims
are also asserted: (1) that an unidentified man who reportedly
worked for Channel 9 News battered plaintiff John Bailey
while he was in the custody of Detectives Tricolla and
Hopkins, (2) that the detectives engaged in abuse of process
when they filed false police reports concerning plaintiff's
conduct, and (3) on behalf of Natasha Bailey, plaintiff John
Bailey asserts that Detective Ortiz took her from her mother
and used excessive force to do so.
On February 10, 1995, plaintiff moved for leave to amend the
complaint to name “Channel 9 Broadcasting Systems, any and
all Affiliates and or Sponsor's and Newscasters, and anyone
and everyone responsible for the broadcasting of the Channel
9 news story shown on the Channel 9 news on or about June
7, 1991, in which the plaintiff was assaulted both physically
then verbally with false slanderous stat[e]ments that implied
plaintiff's guilt.”
There are two motions to dismiss before the Court. In the first,
defendant Detectives Tricolla, Hopkins, Ortiz, and Semioli
move to dismiss the complaint pursuant to Rule 12(b)(6) of
the Federal Rules of Civil Procedure on the grounds that the
complaint is barred by the statute of limitations and that the
defendants are immune from suit. In the second, defendant
“John Doe,” a Channel 9 News Reporter, moves to dismiss
the complaint on two grounds. First, pursuant to Rule 12(b)
(1), defendant Doe argues that this Court lacks subject matter
jurisdiction over him because, as a news reporter, “John
Doe” is not a “person” within the meaning of 42 U.S.C. §
1983. Second, pursuant to Rule 12(b)(6), Doe asserts that the
complaint is barred by the statute of limitations.
On March 29, 1995, this Court received a sworn affidavit and
supplementary exhibits from plaintiff John Bailey seeking
to establish that his complaint was filed within the statute
of limitations. Defendants have not had responded to this
material. For the reasons set forth below, defendants' motions
to dismiss certain claims based on absolute immunity are
granted in part and denied in part. The city defendants'
motion to dismiss the remaining claims statute of limitations
grounds is denied. Defendant Doe's motion to dismiss the
complaint as to himself is granted. Plaintiff's motion to
amend the complaint as set forth in their motion is denied.
Plaintiffs' motion for the appointment of counsel for the
plaintiff Natasha Bailey is granted, and this action is stayed
pending the appointment of counsel and guardian ad litem for
the minor plaintiff.
BACKGROUND
*2 The following facts are taken from the plaintiff's
complaint and, for the purposes of this motion, are presumed
to be true and are regarded in a light most favorable to the
plaintiff. Scheuer v. Rhodes, 416 U.S. 232 (1974). Plaintiffs'
complaint alleges constitutional injury arising from several
incidents. On June 6, 1991, plaintiff John Bailey was arrested
by Detective Tricolla and “a great many other Detectives.” At
the time of the arrest, detectives searched and seized plaintiff's
property including a bill of sale for a .25 caliber automatic,
firearms, ammunition, a gun registration, a firearms lock
box, several keys, two wallets, and other items. Detective
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Semioli is specifically accused of stealing plaintiff's transit
badge and buspass I.D. On the day of plaintiff's arrest, June
6, 1991, Detective Ortiz questioned Natasha Bailey, plaintiff
John Bailey's daughter, and took her away from her mother
by force. On June 7, 1991, between 2 and 5 a.m. plaintiff
was being escorted in handcuffs by Detectives Tricolla and
Hopkins through the main lobby of the 71st police precinct
when plaintiff was hit by defendant “John Doe,” a man he
later learned was employed by Channel 9 News. Detectives
also are accused of filing false police reports concerning
John Bailey and Natasha Bailey and are accused of perjuring
themselves when testifying at plaintiff's trial.
In the motion to amend the complaint, plaintiff alleges that
these events were broadcast on Channel 9 News on or about
June 7, 1991.
DISCUSSION
Subject Matter Jurisdiction
Defendant Doe has argued that this court lacks subject
matter jurisdiction. 1 Plaintiffs filed their suit under 42 U.S.C.
§ 1983. Defendant Channel 9 news reporter “John Doe”
contends that he is not a “person” within the meaning of
§ 1983, and that this Court therefore lacks subject matter
jurisdiction over him. Defendant cites no case law to support
this proposition but relies solely on the plain meaning of the
statute. 2 This Court has also found nothing that would lend
defendant's position support.
In one § 1983 case involving a journalist, Fitzpatrick v.
Wert, 432 F.Supp. 601 (W.D.N.Y.1977), inmates sued news
reporters who reported and commented on a statement made
by the president of a prison guards' union. Plaintiffs alleged
that defendant news reporters were involved in a conspiracy
to deprive plaintiffs of equal protection under the law. Id.
at 603. The suit was dismissed as frivolous. The reporters
were held not liable under § 1983 because they were
engaged in exercising their constitutionally protected rights.
Id. However, neither in Fitzpatrick nor anywhere else in the
extant case law has a court held that journalists were or were
not “persons” within the meaning of the statute. The proper
issue before the Court is whether defendant “John Doe” was
acting “under color of any statute, ordinance, regulation,
custom, or usage, of any State....” 42 U.S.C. § 1983. This is
an issue more appropriately dealt with as a 12(b)(6) motion
to dismiss, since acting under color of state law is an element
of pleading a § 1983 cause of action. Gomez v. Toledo, 446
U.S. 635, 640 (1980). Moreover, when a district court has
both a 12(b)(1) and 12(b)(6) motion before it, the “preferable
approach, if the 12(b)(1) motion essentially challenges the
existence of a federal cause of action, is for the court to find
jurisdiction and then decide the 12(b)(6) motion.” Jones v.
State of Georgia, 725 F.2d 622 (11th Cir.) (citing Williamson
v. Tucker, 645 F.2d 404 (5th Cir.), cert. denied, 454 U.S. 897
(1981)), cert. denied, 469 U.S. 979 (1984). Accordingly, this
Court has subject matter jurisdiction over this defendant.
*3 As to defendants Detective Philip Tricolla, Detective
Douglas, Detective Hopkins, Detective Ortiz, and Detective
A. Semioli, this Court has subject matter jurisdiction over
the case pursuant to 28 U.S.C. § 1343(a)(3) and (4) 3
which specifically provides jurisdiction over § 1983 actions.
Jurisdiction is also proper pursuant to 28 U.S.C. § 1331 which
provides district courts with jurisdiction over all civil actions
arising under the Constitution, laws, or treaties of the United
States.
City Defendants' Statute of Limitations Defense
Defendants argue that the statute of limitations bars all of
plaintiffs' claims except the allegation that detectives perjured
themselves at the plaintiff's trial. There are three elements
needed to determine whether a claim falls within the statute
of limitations: (1) when the period of limitations accrued, (2)
how long the period runs for, and (3) whether the period has
been tolled by reason of incapacity. Federal law determines
when an action accrues. Morse v. University of Vt., 973 F.2d
122, 125 (2d Cir.1992); Singleton v. City of New York, 632
F.2d 185, 191 (2d Cir.1980), cert. denied, 450 U.S. 920
(1981).
The statutory period for bringing a § 1983 action accrues on
the day when plaintiff “ ‘knows or has reason to know’ of
the injury which is the basis of his action.” Pauk v. Board
of Trustees, 654 F.2d 856, 859 (2d Cir.) (quoting Singleton ),
cert. denied, 455 U.S. 1000 (1982). Furthermore, the “proper
focus is on the time of the discriminatory act, not the point at
which the consequences of the act become painful.” Chardon
v. Fernandez, 454 U.S. 6, 8 (1991). Plaintiff's claims accrued
on different dates. Plaintiff's property was searched and seized
on June 6, 1991, at the time of his arrest, and on June 7,
1991, plaintiff was allegedly assaulted by defendant “John
Doe” while in the custody of defendant Detectives Tricolla
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and Hopkins. Plaintiff clearly had immediate knowledge of
both of these events, and thus any cause of action arising
therefrom accrued at that time.
Congress provided no explicit statute of limitations for § 1983
claims. As a result, there was much confusion as to which
state limitations statute to apply until the Supreme Court,
in Wilson v. Garcia, 471 U.S. 261 (1985), decided that the
states' general personal injury statute of limitations should be
applied to all § 1983 claims. Id. at 276. When a state has more
that one personal injury statute of limitations, as is the case in
New York, § 1983 claims are governed by the state's residual
or general personal injury statute of limitations rather that by
the statute of limitations for an enumerated intentional tort.
Owens v. Okure, 488 U.S. 235 (1989). Under New York CPLR
§ 214, the general personal injury statute of limitations is three
years. Therefore, in New York, a plaintiff must commence his
§ 1983 action within three years of the date the cause of action
accrues. See Perez v. Police Dept. of the City of New York, 872
F.Supp. 49, 51 (S.D.N.Y.1994).
*4 Plaintiff John Bailey signed and notarized his complaint
on May 16, 1994. However, the complaint was date-stamped
“received” on July 11, 1994, by the Southern District pro
se office and stamped as filed with the Southern District of
New York on September 13, 1994. In a supplemental affidavit
filed on March 29, 1995, plaintiff attests that he prepared and
mailed the complaint to the Southern District for filing on
May 17, 1994, and requested a return receipt. Plaintiff has
annexed to his affidavit a copy of his certified mail receipt,
addressed to the U.S. District Court at 40 Centre St., New
York, N.Y. and showing a post office stamp of May 17, and a
copy of the returned receipt, signed and dated May 26, 1994.
Rule 3 of the Federal Rules of Civil Procedure determines
when a civil rights action commences. It simply states “[a]
civil action is commenced by filing a complaint with the
court.” Fed.R.Civ.P. 3. Incarcerated litigants are afforded
more leeway when they file pleadings because of their
inability to file papers personally with the clerk of the court.
Thus, for example, litigants may file a complaint by handing
it to prison authorities, Dory v. Ryan, 999 F.2d 679, 682 (2d
Cir.1993) (discussing Houston v. Lack, 487 U.S. 266 (1988)),
modified by 25 F.3d 81 (2d Cir.1994); Lewis v. Richmond City
Police Dept., 947 F.2d 733, 734 (4th Cir.1991), or may file an
appeal in the same manner. LaBounty v. Adler, 933 F.2d 121
(2d Cir.1991).
At least one court has held that a return receipt dated within
the limitations period suffices to prove receipt by the clerk
and therefore filing, even if the clerk's office stamps the
pleading “received” or “filed” on later dates. Cooper v. City
of Ashland, 871 F.2d 104, 105 (9th Cir.1989). Generally, file
stamps are far from dispositive of a statute of limitations issue.
In Mays v. New York City Police Dept, 701 F.Supp. 80, 83 n.
6 (S.D.N.Y.1988), aff'd, 888 F.2d 1376 (2d Cir.1989), it was
held that “[w]hen a pro se plaintiff's complaint is received
by the Court within the statutory period, as here, and official
filing is delayed by the Court's consideration of plaintiff's
request for leave to proceed in forma pauperis, the action will
be deemed timely for purposes of the statute of limitations.”
See also Salahuddin v. Harris, 657 F.Supp. 369, 373 n. 3
(S.D.N.Y.1987). The key inquiry is whether the clerk's office
had actual control; papers placed in a night depository box
after hours on the last day of the limitations period are deemed
timely notwithstanding a local rule that such papers would
be deemed filed the following day, because the papers placed
in the box were held to be in the clerk's “actual possession.”
Greenwood v. State of N.Y., Office of Mental Health, 842 F.2d
636, 639 (2d Cir.1988); see also Martin v. Demma, 831 F.2d
69, 71 (5th Cir.1987) (district court's acceptance of date on
clerk's stamps as dispositive was error). Plaintiff's production
of the post office return receipt showing that his complaint
was received at the Southern District clerk's office within the
limitations period meets his burden of producing evidence to
show that his papers were timely filed sufficient to warrant
denial of the motion to dismiss at this time. The denial of this
motion is without prejudice if discovery uncovers additional
evidence relating to this matter.
Alleged False Police Reports and Perjured Testimony
*5 Plaintiff also claims that defendant detectives filed false
police reports and lied while testifying at his trial. Even
if timely filed, these claims cannot withstand a motion to
dismiss.
Generally, police officers have available a defense of only
qualified immunity. Pierson v. Ray, 386 U.S. 547 (1967).
However, defendant detectives are correct that officers
serving as witnesses have absolute immunity from civil
liability for their testimony. Briscoe v. LaHue, 460 U.S.
325 (1983). As the Supreme Court held in Briscoe, “the
common law provided absolute immunity from subsequent
damages liability for all persons—governmental or otherwise
—who were integral parts of the judicial process.” Id. at 335.
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Section 1983 does not abrogate this traditional immunity.
Examining the legislative history of the Ku Klux Klan Act
of 1871, 17 Stat. 13 (now codified at 42 U.S.C. §§ 1983
and 1985, inter alia ), the Supreme Court found nothing
to “support petitioners' contention that Congress intended to
provide a § 1 damages remedy against police officers or any
other witnesses.” Id. at 341. The Court specifically noted
that, although “some defendants might indeed be unjustly
convicted on the basis of knowingly false testimony by police
officers ... the alternative of limiting the official's immunity
would disserve the broader public interest.” Id. at 345. In light
of Briscoe, defendant detectives are absolutely immune from
this § 1983 action with respect to their testimony at plaintiff's
trial.
Plaintiff's allegations that the police officers filed false police
reports against him also fails to state a claim. “[T]he mere
filing of the false police reports, by themselves and without
more, [does] not create a right of action in damages under
42 U.S.C. § 1983.” Landrigan v. City of Warwick, 628 F.2d
736, 744–45 (1st Cir.1980). Plaintiff's claims could be cast
as a cause of action for malicious prosecution. Allegations of
malicious prosecution do not ordinarily state a claim under
§ 1983. Easterhouse v. Felder, 910 F.2d 1387, 1407 (7th
Cir.1990), cert. denied, 498 U.S. 1067 (1991); Gunderson
v. Schueter, 904 F.2d 407, 409 (8th Cir.1990); Usher v.
City of Los Angeles, 828 F.2d 556, 561 (9th Cir.1987). The
filing of false police reports may bring a claim for malicious
prosecution within the scope of § 1983. Usher v. City of
Los Angeles, 828 F.2d 556, 561 (9th Cir.1987). However,
an essential element of such a claim is that the proceeding
must terminate in plaintiff's favor, and plaintiff has not alleged
this key fact. Bernard v. United States, 25 F.3d 98, 104 (2d
Cir.1994). If plaintiff were convicted but believes that he
was wrongly convicted, his proper remedy is not a claim
for damages but rather an appeal, a collateral attack in state
court, or a habeas petition in federal court. Plaintiffs thus have
no cognizable § 1983 claim for the alleged filing of false
reports. 4
*6 Since the only other argument advanced by the city
defendants is the statute of limitations and since that argument
fails as noted above, their motion to dismiss the complaint is
granted only with respect to the alleged false reports and false
testimony and is denied in all other respects.
Claims Against Defendant “John Doe”
The “under color” of law provision of § 1983 does not
require that the defendant be an officer of the State. Dennis
v. Sparks, 449 U.S. 24 (1980). However, for the conduct of
a private party to fall within the “under color” language, that
conduct must be supported by state action, usually in the
form of a conspiracy. Adickes v. S.H. Kress & Co., 398 U.S.
144, 163 (1970) (defendant restaurant owner who refused to
serve Caucasian woman in the company of African American
students was acting under color of law within the meaning of
§ 1983 because of his participation in a conspiracy with local
police to deprive plaintiff of her rights). State support which
transforms private action into state action may take many
forms. In plaintiff's case, the only support given to “John
Doe” was the inaction of the detectives who witnessed the
battery. This level of support, if it can be called support at all,
cannot qualify as state action because the complaint fails to
allege that the attack was the result of a joint venture with the
detectives. See United States v. Price, 383 U.S. 787 (1966).
In Price, private actors charged with conspiring with local
police to injure three men came within the scope of the statute
because the private persons acted as willful participants in a
joint activity with the state or its agents. Id. at 794. The Second
Circuit has repeatedly held that § 1983 conspiracy claims
must “contain more than mere conclusory allegations ... [and
that] a plaintiff should not plead mere evidence; he should
make an effort to provide some ‘details of time and place and
the alleged effect of the conspiracy.’ ” Dwares v. City of New
York, 985 F.2d 94, 99–100 (2d Cir.1993) (quoting 2A Moore's
Federal Practice ¶ 8.17[6], at 8–109 to 8–110 (2d ed. 1992)).
Even though pro se complaints are read very broadly under
Haines, the Court is nevertheless limited to addressing the
face of a pleading. Goldman v. Belden, 754 F.2d 1059
(2d Cir.1985). A claim of conspiracy between defendant
detectives and defendant Channel 9 news reporter cannot be
inferred from the facts presented in the complaint, and the
complaint is dismissed as to this John Doe defendant.
Plaintiff's state law claims against defendant Doe are also
dismissed Under any reading of the complaint, these claims
can only be for assault, libel, or some other intentional tort.
The state law claims are subject to New York's one-year
statute of limitations for intentional torts, CPLR § 215, rather
than the three-year period for negligence actions or § 1983
claims. This period has clearly expired as to all claims against
Doe. Accordingly, the complaint is dismissed as to defendant
Doe.
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*7 For similar reasons, plaintiff's motion to amend the
complaint is also denied. The amendment seeks to name
Channel 9 Broadcasting Systems and others as defendants
in a slander or libel action. These actions are also subject
to the one-year statute of limitations. Since the proposed
amendment would be futile, plaintiff's motion is denied.
Natasha Bailey
Natasha Bailey is represented by her father, plaintiff John
Bailey. Under the Federal Rules of Civil Procedure, capacity
to sue is determined by the law of the state in which the district
court is held. Fed.R.Civ.P. 17(b). Rule 17(b) reads in relevant
part: “The capacity of an individual, other than one acting in a
representative capacity, to sue or be sued shall be determined
by the law of the individual's domicile ... [i]n all other cases
capacity to sue or be sued shall be determined by the law of the
state in which the district court is held....” Wright and Miller
comment on this rule, noting that state law determines the
capacity of the guardian as well as the plaintiff: “[a]s has been
seen in the preceding sections, the first two sentences of Rule
17(b) deal with an individual suing on his own behalf and with
the capacity of corporations. The third sentence of the rule
provides that in all other cases capacity to sue or be sued is
to be determined by the law of the state in which the district
court is held. This portion of the rule applies principally
to individuals who are suing in a representative capacity,
including executors and administrators, guardians, trustees,
and receivers appointed by a state court.” Wright & Miller,
Federal Practice and Procedure: Civil § 1565. Under New
York law, an infant 5 cannot prosecute an action in person.
The Federal Rules of Civil Procedure allow a representative
to sue on behalf of an infant. Fed.R.Civ.P. 17(c). However
under New York law the infant must appear by a parent who
has “legal custody” 6 or guardian ad litem. “Unless the court
appoints a guardian ad litem, an infant shall appear by the
guardian of his property or, if there is no such guardian,
by a parent having legal custody, or, if there is no such
parent by another person or agency having legal custody....”
N.Y.Civ.Prac.L. & R. 1201 (McKinney 1995). To have legal
custody, a parent must have physical custody. Otero on Behalf
of Otero v. State, 159 Misc.2d 35, 602 N.Y.S.2d 501, 502
(1993). An incarcerated parent cannot have legal custody
and therefore may not bring suit on behalf of an infant. Id.
at 502. Since plaintiff John Bailey is currently incarcerated
at Franklin Correctional Facility in Malone, N.Y., he is not
competent to bring this action on his daughter's behalf. 7
For the foregoing reasons defendant Channel 9 news reporter
“John Doe's” motion to dismiss is granted. Plaintiffs' claims
against the defendant detectives arising out of their testimony
at his trial or from the alleged filing of false police reports are
also dismissed. Plaintiff's motion to amend the complaint is
denied. The claims on behalf of Natasha Bailey are dismissed
without prejudice. Plaintiff's applications for appointment
of pro bono counsel are denied subject to renewal upon a
showing sufficient to permit the determination required by
Cooper v. S. Sargenti Co., Inc., 877 F.2d 170 (2d Cir.1989),
concerning the merits of the case.
*8 The Clerk is directed to mail a copy of the within to all
parties.
SO ORDERED.
All Citations
Not Reported in F.Supp., 1995 WL 548714
Footnotes
1 Though “John Doe” is not specifically identified in the complaint, process was served on Channel 9 at their
offices at 445 Park Avenue, New York City, and was accepted by a person named Brenda Woodman. This
Court has received a motion and supporting affidavit filed by attorneys for WWOR (Channel 9) on behalf of
“John Doe.” The affidavit states that “Defendant ‘John Doe,’ Channel 9 News Reporter, respectfully requests
that this court dismiss plaintiff's Complaint.” The defendant has not raised objections to either service or
personal jurisdiction but, instead, to subject matter and to the merits of the case. By filing this motion, then,
he has consented to personal jurisdiction.
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2 The statute reads in pertinent part: “Every person who, under color of any statute, ordinance, regulation,
custom, or usage, of any State or Territory, or the District of Columbia subjects, or causes to be subjected,
any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights,
privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action
at law, suit in equity, or other proper proceedings for redress.” 42 U.S.C. § 1983 (1988).
3 “(a) The district courts shall have original jurisdiction of any civil action authorized by law to be commenced
by any person: ...
(3) To redress the deprivation, under color of any State law, statute, ordinance, regulation, custom
or usage, of any right, privilege or immunity secured by the Constitution of the United States or by
any Act of Congress providing for equal rights of citizens or of all persons within the jurisdiction of
the United States;
(4) To recover damages or to secure equitable or other relief under any Act of Congress providing for
the protection of civil rights, including the right to vote.”
4 The Court declines to consider the instant complaint as a habeas petition under 18 U.S.C. § 2254, because
it is impossible to determine whether the claims were properly exhausted. If Bailey intends to seek habeas
relief, he should file an appropriate petition.
5 An infant is defined as a “person who has not attained the age of eighteen years.” N.Y.Civ.Prac.L. & R. 105
(McKinney 1994).
6 See Villafane v. Banner, 87 Misc.2d 1037, 387 N.Y.S.2d 183 (1976).
7 Generally, no statute of limitations will run against an infant until he or she attains the age of 18, the age of
majority in New York. Section 208 of the NYCPLR in pertinent part reads, “If a person entitled to commence
an action is under a disability because of infancy or insanity at the time the cause of action accrues, and
the time otherwise limited for commencing the action is three years or more and expires no later than three
years after the disability ceases, or the person under disability dies, the time within which the action must
be commenced shall be extended to three years after the disability ceases or the person under the disability
dies....” However, in an action for personal injuries sustained by the infant, the statute of limitations does not
bar the adult representative from bringing suit on behalf of the infant. Hilburger v. Cottman, 196 Misc. 106, 91
N.Y.S.2d 721 (1949) (“to compel an infant ... to await h[er] majority before bringing an action because [s]he
had failed to act within the generally prescribed statutory period would create an anomalous situation ... an
infant's right of action is continuing and suit may be brought at any time during his minority.”). Here, since John
Bailey cannot legally represent Natasha because of his incarceration, another representative is required.
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Brown v. City of New York, Not Reported in F.Supp.3d (2014)
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2014 WL 5089748
Only the Westlaw citation is currently available.
United States District Court,
S.D. New York.
Robert K. BROWN, Plaintiffs,
v.
The CITY OF NEW YORK et al., Defendants.
No. 12CV3146–LTS–GWG.
|
Signed Sept. 30, 2014.
MEMORANDUM OPINION AND ORDER
LAURA TAYLOR SWAIN, District Judge.
*1 Plaintiff Robert K. Brown (“Plaintiff”) brings this action
against Defendants the City of New York (“City of New
York”) and New York City Police Department (“N.Y.P.D.”)
Officers Marcus McCoy (“McCoy”) and Stephen Janec 1
(“Janec,” collectively, “Defendants”), pursuant to 42 U.S.C.
§ 1983, asserting federal claims for false arrest, unlawful
imprisonment and malicious prosecution, as well as state
law claims for false arrest and intentional infliction of
emotional distress, stemming from Plaintiff's December 13,
2010, arrest and subsequent imprisonment. 2 Defendants
move for summary judgment, pursuant to Federal Rule of
Civil Procedure 56, arguing that there was probable cause
to arrest the Plaintiff; that any search and/or imprisonment
of the Plaintiff was lawful; that Plaintiff fails to state a
claim for malicious prosecution; and that, to the extent that
Plaintiff intends to bring any state law claims, those claims are
meritless. The Court has jurisdiction of this action pursuant
to 28 U.S.C. §§ 1331 and 1367. The Court has considered
carefully the parties' submissions and arguments and, for the
following reasons, the Defendants' motion is granted in its
entirety.
BACKGROUND 3
Plaintiff was arrested on December 13, 2010, shortly after
1:00 p .m., in the vicinity of 84th Street and Park Avenue in
Manhattan, New York. (Def. 56.1 St. ¶ 8.) Earlier that day, two
men, identified as E.K. and O.M., had called the authorities
to report that the van that they were using, which belonged
to Wynne Plumbing and Heating, had been broken into while
it was parked on 85th Street. (Id. ¶ 6.) Defendants McCoy
and Janec responded to the complaint, which they heard about
over the police radio. (Id. ¶ 7.) 4
The two complainants, E.K. and O.M., told Officer McCoy
that they had seen Plaintiff in the driver's seat of the van,
attempting to start the ignition in the van and that, when E.K.
followed Plaintiff as he attempted to flee, the Plaintiff waved
a hammer near E.K.'s face and said something to the effect of
“wait a second.” (Def. 56.1 St. ¶¶ 9–11.) Officer Janec's memo
book indicates that he watched a surveillance video of the
parked van at 1:25 p.m., after Plaintiff was arrested. (Lulich
Decl., Ex. L.) In his opposition to Defendants' motion for
summary judgment, Plaintiff repeatedly alleges that, because
he cannot be seen in the video, it exonerates him, and that
McCoy violated his rights and was complicit in a false arrest
and malicious prosecution by suppressing or withholding the
“exculpatory” video. The Court has reviewed the security
video, a copy of which was provided to the Court by the
Defendants. It shows only a partial view of the van and
neither the passenger side door of the van, through which the
Plaintiff is accused of having entered, nor pedestrian traffic
approaching the door on that side of the vehicle is visible.
(Lulich Decl., Ex. M.)
E.K. and O.M. identified Plaintiff as the person who had
broken into their van and he was arrested near the scene of the
crime, at 84th Street and Park Avenue. (Def. 56.1 St. ¶¶ 7–9.)
When he was arrested, a backpack containing, among other
things, a hammer, screwdrivers and a knife, was vouchered
as evidence belonging to the Plaintiff. (Lulich Decl., Ex.
H.) Plaintiff denies that the hammer, screwdrivers and knife
were his, and asserts that they were actually plumbing tools
belonging to E.K. and O.M. that were found on the ground.
(Pl. 56.1 St. ¶ 7; Pl. Mem. in Opp. (ECF docket no. 43) at ECF
p. 63.) Plaintiff also alleges that he had been “in a pizzaria[sic]
having coffee-tea and pastries with a woman at 86th Street
and the corner of Lexington Avenue,” and then had walked
up 84th Street to Park Avenue to pick up a car that he had
borrowed, before he was arrested. (Pl. 56.1 St. ¶ 7; Pl. Mem. in
Opp. at ECF p. 21.) Plaintiff contends that Defendants McCoy
and Janec pulled up in the police car next to Plaintiff and
jumped out of the car, that one of the police officers had a
gun in his hand and that they handcuffed the Plaintiff and
forcefully searched him before putting him in the back seat of
the police car. (Pl. Mem. in Opp at ECF p. 21.)
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*2 Plaintiff alleges that he was then made to wait in the
police car with the heater running full blast and that, as a
diabetic with high blood pressure and asthma, he suffered
from having his blood circulation restricted by the handcuffs
with the heat running so high. (Id.) According to Plaintiff,
when Defendants McCoy and Janec returned to the police car
he told them that he was having breathing problems and heart
palpitations and they arranged to have an ambulance meet
them at the police station and take him to the hospital. (Id.) 5
Plaintiff states that he was returned to the police station six to
eight hours later, after being treated at the hospital, and that
Defendant McCoy, while processing Plaintiff's paperwork,
made a comment to the effect of “what was being done to the
plaintiff was not right and that this is not what he joined the
police department for.” (Id. at ECF p. 24.) Plaintiff further
alleges that Detective Lisa Moran, who had been involved in
an arrest of Plaintiff on November 3, 2010, told Plaintiff that
“[y]ou will not be getting out of jail this time because I will
be making sure of it.” (Id.)
Plaintiff's arrest was processed at the 19th Precinct and his
pants and shirt from the time of his arrest were vouchered
as evidence. (Def. 56.1 St. ¶ 12.) Plaintiff alleges that he
remained naked (or in his underwear) and handcuffed for
approximately ten minutes, before he was given back his
“Red, White and Blue Jacket, his underwear, undershirt, and
tan boots along with hospital pajamas to wear.” (Pl. 56.1 St.
¶ 12.) (Compare Pl. Mem. In Opp. at ECF p. 26 with Lulich
Decl., Ex. B., Tr. 111:9–112:6 .)
At the time of his arrest, Plaintiff was on parole and was in
violation of the conditions of his parole. 6 (Def. 56.1 St. ¶¶ 4–
5, 8.) On November 3, 2010, Plaintiff had been arrested for,
among other crimes, criminal possession of stolen property
and unlawful use of a motor vehicle. (Id. ¶ 4.) The November
3, 2010, charges were pending in New York County Supreme
Court under case number 2010–05448 at the time of the arrest
that forms the basis of Plaintiff's allegations in this case.
Plaintiff had not reported the November 3, 2010, arrest to his
parole officer and had missed at least four mandatory check-
ins with that officer by December 13, 2010. (Id. ¶ 5.) 7
On December 14, 2010, Plaintiff was arraigned for attempted
grand larceny in the fourth degree, menacing in the third
degree, auto stripping in the third degree, criminal mischief in
the fourth degree, and possession of burglar's tools under New
York County Criminal Court number 2010NY091520. (Id. ¶
13.) E.K. and O.M. identified the Plaintiff as the perpetrator
of the break-in of their van and signed affidavits attesting
to this. Plaintiff's bail was set at $1.00 because there was a
parole hold on Plaintiff. (Def. 56 .1 St. ¶ 13.) 8 Following his
arraignment, Plaintiff was remanded into custody of the New
York City Department of Correction (“DOC”) for violating
his parole—not because of the criminal charges arising out of
the December 13, 2010, incident. (Id. ¶ 14.)
*3 From December 13, 2010, until March 28, 2012, the
charges under New York Supreme Court case no.2010–
05448 and New York Country Criminal Court docket no.
2010NY091520 were both pending against the Plaintiff as
separate actions. (Id. ¶ 15.) During the criminal proceedings
in New York County Supreme Court case no.2010–0558,
Plaintiff was evaluated by at least two mental health
professionals and found to be unfit to proceed to trial. (Id. ¶
16.) In July 2011, Plaintiff was transferred to the Mid–Hudson
Psychiatric Center, upon an Order of Commitment, and was
treated there until September 2011, when he was transferred
back into custody at Riker's Island. (Id.; Pl. 56.1 St. ¶ 16.)
On March 14, 2012, following a bench trial, Plaintiff was
convicted of criminal possession of stolen property in the
fourth degree and unauthorized use of a vehicle in the second
degree, under case number 2010–05448. (Pl. 56.1 St. ¶ 17;
Def. 56.1 St. ¶ 17.) 9 On March 28, 2012, Plaintiff was
sentenced to two to four years on each charge. (Def. 56.1
St. ¶ 17.) However, if Plaintiff had been tried and convicted
of the charges brought under docket number 2010NY09150,
any sentence would statutorily have been required to run
concurrently with, and not have exceeded, the sentence
already imposed under case 2010–05548. Therefore, on April
10, 2012, the charges relating to the instant arrest under
case number 2010NY091520 were dismissed as covered
by Plaintiff's conviction in case number 2010–05448. (Def.
56.1 St. ¶ 18.) 10 Neither Defendant McCoy nor Janec
testified in any of Plaintiff's criminal proceedings. (Id. ¶ 19.)
From December 14, 2010, to March 28, 2012, Plaintiff was
incarcerated because he violated parole prior to the December
13, 2010, arrest and from March 28, 2012, he was incarcerated
pursuant to his conviction in case number 2010–05448. (Id.
¶ 22.) The only period during which Plaintiff was held on
account of the charges for which he was arrested on December
13, 2010, was from the time of the arrest until his December
14, 2010, arraignment on the charges.
DISCUSSION
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Under Federal Rule of Civil Procedure 56(a), a Court should
grant summary judgment when “the movant shows that there
is no genuine dispute as to any material fact and the movant
is entitled to judgment as a matter of law.” The moving party
bears the burden of showing that it is entitled to summary
judgment, see Anderson v. Liberty Lobby, Inc., 477 U.S.
242, 256, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986), and a
“material fact” is one that might affect the outcome of a suit
under governing law. See Kinsella v. Rumsfeld, 320 F.3d 309,
311 (2d Cir.2003). When reviewing the record, the Court
must assess the evidence in “the light most favorable to the
[non-moving party]” and resolve all ambiguities and draw
all inferences in its favor. Tufariello v. Long Island R. Co.,
458 F.3d 80, 85 (2d Cir.2006). However, the party opposing
summary judgment must put forth more than a “scintilla of
evidence,” Anderson, 477 U.S. at 252, and “cannot defeat
the motion by relying on the allegations in [its] pleading,
or on conclusory statements.” Gottlieb v. Cnty. of Orange,
84 F.3d 511, 518 (2d Cir.1986) (internal citation omitted).
To defeat the motion, the non-moving party “must set forth
specific facts showing that there is a genuine issue for trial .”
Anderson, 477 U.S. at 248.
*4 Where a plaintiff is proceeding pro se, the Court must
read the plaintiff's papers liberally and interpret them “to
raise the strongest arguments that they suggest.” Triestman v.
Bureau of Prisons, 470 F.3d 471, 474 (2d Cir.2006) (internal
citation omitted). However, a “pro se party's bald assertions
cannot overcome a motion for summary judgment” and the
plaintiff must provide the court with “some basis to believe
that his version of relevant events is not fanciful.” Yearwood
v. LoPiccolo, No. 95 CV 2544, 1998 WL 474073, at *3
(S.D.N.Y. Aug. 10, 1998) (internal quotation marks and
citations omitted); see also Saldana v. Local 32B–32J Serv.
Emps. Int'l Union, No. 03 CV 1853, 2005 WL 66895, at *2
(S.D.N.Y. Jan. 12, 2005) (“[e]ven a pro se plaintiff [ ] cannot
withstand a motion for summary judgment by relying merely
on the allegations of a complaint”).
Individual Defendants McCoy and Janec
False Arrest Claim
Defendants move for summary judgment on Plaintiff's false
arrest claim, which is asserted as a Fourth Amendment
violation claim pursuant to 42 U.S.C. § 1983, as well as under
New York state law. Plaintiff opposes the motion, arguing
that it should be denied because the evidence would support
a finding that the arrest was illegal, for lack of probable
cause. A section 1983 claim for false arrest is “substantially
the same” in all relevant respects as a claim for false arrest
under state law. See Jocks v. Tavernier, 316 F.3d 128, 134 (2d
Cir.2003). Thus, in order to state a claim for false arrest, a
plaintiff must show that “(1) the defendant intended to confine
plaintiff, (2) the plaintiff was conscious of the confinement,
(3) the plaintiff did not consent to the confinement, and (4) the
confinement was not otherwise privileged.” Savino v. City of
New York, 331 F.3d 63, 75 (2d Cir.2003) (quoting Bernard v.
United States, 25 F.3d 98, 102 (2d Cir.1994)); see also Hart v.
City of New York, No. 11 CV 4678(RA), 2013 WL 6139648,
at *3 (S.D.N.Y. Nov.18, 2013).
“[T]he existence of probable cause is an absolute defense
to a false arrest claim.” Jaegly v. Couch, 439 F.3d 149, 152
(2d Cir.2006). “ ‘Probable cause to arrest exists when the
arresting officer has knowledge or reasonably trustworthy
information of facts and circumstances that are sufficient to
warrant a person of reasonable caution in the belief that the
person to be arrested has committed or is committing a crime.’
“ Torraco v. Port Authority of New York and New Jersey,
615 F.3d 129, 139 (2d Cir.2010) (quoting Escalera v. Lunn,
361 F.3d 737, 743 (2d Cir.2004)). “[T]he probable cause
standard is far below that of reasonable doubt.” Husbands
v. City of New York, 335 F. App'x 124, 127 (2d Cir.2009).
“The inquiry is limited to whether the facts known by the
arresting officer at the time of the arrest objectively provided
probable cause to arrest.” Gonzalez v. City of Schenectady,
728 F.3d 149, 155 (2d Cir.2013) (internal quotation marks
and citation omitted). Courts must look to the totality of the
circumstances, keeping in mind that “probable cause does
not require absolute certainty.” Panetta v. Crowley, 460 F.3d
388, 395 (2d Cir.2006) (internal quotation marks and citations
omitted).
*5 Police officers do not have an affirmative duty to
investigate allegations made by a complaining witness
prior to effectuating an arrest. See Jaegly, 439 F.3d at
153. Police have probable cause to arrest if they receive
“information from some person, normally the putative victim
or eyewitness, who it seems reasonable to believe is telling the
truth.” Miloslavsky v. AES Eng'g Soc'y Inc., 808 F.Supp. 351,
355 (S.D.N.Y.1992), aff ‘d, 993 F.2d 1534 (2d Cir.1993). “The
veracity of citizen complaints [sic] who are the very victims
of the very crime they report to the police is assumed.” Id.
Finally, even “the fact that an innocent explanation may be
consistent with the facts alleged ... does not negate probable
cause.” Waldron v. Milana, ––– F.App'x ––––, 2013 WL
4733215, at *3 (2d Cir.2013) (internal quotation marks and
citation omitted).
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Here, it is undisputed that Defendants McCoy and Janec
responded to a report made by the two complaining victims,
O.M. and E.K., regarding a vehicle break-in the vicinity of
85th Street and Madison Avenue. (Def. 56.1 St. ¶¶ 6–7.) O.M.
and E.K. told Defendant McCoy that they saw the Plaintiff
attempting to break into the van and E.K. told the police
that the Plaintiff held up a hammer and told him to “wait a
second.” (Id. ¶¶ 8–11.) Plaintiff was arrested in the vicinity of
Park Avenue and 84th Street, within half an hour of the time
of the break-in, after having been identified by the victims.
(Id. ¶ 8.) These circumstances are sufficient as a matter of
law to establish the absolute defense of probable cause. See,
e.g., Bacci v. Fairway Mkt., No. 06 CV 2407(DAB), 2008 WL
2139132, at *6–7 (S.D.N.Y. May 19, 2008) (finding probable
cause for petit larceny and possession of stolen property
where police officers were informed by employee that the
employee observed plaintiff attempting to leave with unpaid
for items concealed on his person). Plaintiff's argument that
probable cause was lacking turns principally on his contention
that, having seen the surveillance video immediately after the
arrest, Defendant McCoy should have understood that the
complainants' accusations were baseless. As explained above,
however, the surveillance video does not exonerate Plaintiff
because, although he is not seen in it, the van door that he is
alleged to have broken into and that side of the van are not
visible. Plaintiffs' arguments thus have no evidentiary basis
and are insufficient to frame a genuine factual dispute as to
the existence of probable cause.
Defendants' motion for summary judgment on Plaintiff's
federal and state law false arrest claims as against Defendants
McCoy and Janec is granted. To the extent that Plaintiff
also asserts claims of false imprisonment, they are dismissed
as well, because false arrest and false imprisonment are
synonymous under New York law. See Posr v. Doherty, 944
F.2d 91, 96 (2d Cir.1991).
Unlawful Search Claim
Plaintiff appears to allege that he was subject to an unlawful
strip search following his arrest, but he does not assert this
cause of action as a separate claim. (See, e.g., Compl. ¶ 4; Pl.
Mem. in Opp. at ECF p. 25.) Reading Plaintiff's papers in the
light most favorable to him, however, the Court assumes that
Plaintiff intends to assert such a claim. According to Plaintiff,
after his arrest, while he was being processed, members of
the N.Y.P.D.'s Emergency Services Unit collected his clothing
and then left him alone and naked or with underwear only for
approximately ten minutes before bringing him some hospital
pajamas and telling the Plaintiff to put back on his socks,
boots and heavy jacket. (Pl. Mem. in Opp. at ECF p. 26.) 11
*6 Even drawing all inferences in Plaintiff's favor, the
search of Plaintiff was justified as a matter of law, both
as a search pursuant to a lawful arrest and as a reasonable
penological measure to protect the safety of the other inmates.
See Illinois v. Lafayette, 462 U.S. 640, 645–46, 103 S.Ct.
2605, 77 L.Ed.2d 65 (1983) (“[a] custodial arrest of a suspect
based on probable cause is a reasonable intrusion under the
Fourth Amendment; that intrusion being lawful, a search
incident to the arrest requires no additional justification”;
“[a]t the stationhouse, it is entirely proper for the police to
remove and list or inventory property found on the person
or in the possession of an arrested person who is to be
jailed.”); see also Florence v. Board of Chosen Freeholders
of County of Burlington, ––– U.S. ––––, 132 S.Ct. 1510, 182
L.Ed.2d 566 (2012) (holding that the practice of conducting
a strip search on all arrestees, regardless of severity of the
underlying offense or individualized suspicion of possession
of contraband, does not violate the Fourth Amendment). “[I]f
an arrestee is taken to the police station, that is no more than
a continuation of the custody inherent in the arrest status....
The governmental interests underlying a stationhouse search
of the arrestee's person and possessions may in some
circumstances be even greater than those supporting a search
immediately following arrest.” Lafayette, 462 U.S. at 645.
However, the Fourth Amendment requires that strip searches
of inmates be reasonable, see Hodges v. Stanley, 712 F.2d
34, 35 (2d Cir.1983) (per curiam) (citing Bell v. Wolfish, 441
U.S. 520, 559, 99 S.Ct. 1861, 60 L.Ed.2d 447 (1979)) and
that “the need for a particular search [ ] be balanced against
the resulting invasion of personal rights,” Florence, 132 S.Ct.
at 1516 (2012) (citation omitted). In determining whether a
particular strip search is reasonable, a court “must consider
the scope of the particular intrusion, the manner in which it
is conducted, the justification for initiating it, and the place
in which it is conducted.” Bell, 441 U.S. at 559 (collecting
cases).
Here, there was a reasonable suspicion that Plaintiff was
engaged in criminal activity as he was found with burglar's
tools and a knife at the time of his arrest near the vicinity of
the crime, and was identified by two complaining witnesses.
After his arrest, it was reasonable to search Plaintiff when
processing him, both for evidence from the alleged crime
and for safety reasons. Arnold v. Westchester Cnty., No.
09 CV 3727, 2012 WL 336129, at *11 (S.D.N.Y. Feb.3,
2012) (“prison officials have an obligation to take reasonable
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measures to protect the safety of the prison's inmates.”),
report & rec. adopted by 2012 WL 841484 (S.D.N.Y. Mar 13,
2012). The approximately ten-minute delay in which Plaintiff
was naked or wearing underwear that Plaintiff contends
occurred while he was waiting for his clothing to be returned,
while likely unpleasant for the Plaintiff, does not make the
search unreasonable or unlawful. Defendants' motion for
summary judgment is granted as to Plaintiff's unlawful search
claim as against Defendants McCoy and Janec.
Malicious Prosecution Claim
*7 Plaintiff also asserts a section 1983 claim for malicious
prosecution in violation of his Fourth Amendment rights.
The law imposes “a heavy burden on malicious prosecution
plaintiffs.” Rothstein v. Carriere, 373 F.3d 275, 282 (2d
Cir.2004) (citation omitted). To prevail on a section 1983
claim for malicious prosecution, a plaintiff must first establish
the elements of a malicious prosecution claim under state law.
See, e.g., Janetka v. Dabe, 892 F.2d 187, 189 (2d Cir.1989).
“To recover on a claim of malicious prosecution under New
York law, a plaintiff must establish four elements: that (1)
the defendant either commenced or continued a criminal
proceeding against him; (2) that the proceeding terminated
in his favor; (3) that there was no probable cause for the
criminal proceeding; and (4) that the criminal proceeding
was instituted in actual malice.” Russo v. State of N. Y., 672
F.2d 1014, 1018 (2d Cir.1982) (internal citations omitted).
In addition to satisfying the state law elements, for a section
1983 claim to succeed there must also be a showing of “a
sufficient post-arraignment liberty restraint to implicate the
plaintiff's Fourth Amendment rights.” See Rohman v. New
York City Transit Authority (N.Y.CTA), 215 F.3d 208, 215
(2d Cir.2000). Defendants are entitled to summary judgment
dismissing Plaintiff's malicious prosecution claim for three
principal reasons: there is no evidence that Defendants
“initiated” the prosecution within the meaning of the relevant
legal standards; there was probable cause to support the
prosecution; and the prosecution was not terminated in
Plaintiff's favor.
“Initiation in [the context of malicious prosecution] is a term
of art,” involving more than merely reporting a crime and
giving testimony. “It must be shown that defendant played
an active role in the prosecution, such as giving advice
and encouragement or importuning the authorities to act ...
One who does no more than disclose to a prosecutor all
material information within his knowledge is not deemed to
be the initiator of the proceeding.” Rohman, 215 F.3d at 217
(internal quotation marks and citations omitted). An arrest
alone “cannot serve as the predicate deprivation of liberty
required by the Fourth Amendment because it occurred prior
to [a defendant's] arraignment and without a warrant.” Singer
v. Fulton County Sheriff, 63 F.3d 110, 116–17 (2d Cir.1995).
“Once a criminal defendant has been formally charged, the
chain of causation between the officer's conduct and the claim
of malicious prosecution is broken by the intervening acts of
the prosecutor, thereby abolishing the officer's responsibility
for the prosecution.” Jouthe v. City of New York, No. 05 CV
1374(NGG), 2009 WL 701110, at *11 (E.D.N.Y. March 10,
2009) (internal quotation marks and citation omitted).
Plaintiff argues that Defendant McCoy initiated the
prosecution against the Plaintiff by signing the criminal
complaint and that Defendant Janec helped to initiate the
prosecution by signing the supporting affidavit. However,
although McCoy swore out the criminal court complaint,
the information regarding Plaintiff's alleged activities was
obtained from the two complaining victims. Merely signing
the criminal complaint and/or reporting the material
information known to the officer does not override the
independent prosecutorial judgment of the assistant district
attorney in deciding whether to bring charges. Plaintiff also
seems to allege that Defendants McCoy and Janec initiated
the prosecution by withholding the security video from the
District Attorney's Office Office, when the video would have
allegedly exonerated him. However, there is no evidence in
the record to support this contention. In fact, the Voluntary
Disclosure Form, signed by the assistant district attorney,
indicates that the District Attorney's Office was in possession
of the video. (See Lulich Decl., Ex. N. “Voluntary Disclosure
Form.”) There is also no evidence to support Plaintiff's
contention that the video exonerates him.
*8 Even if Defendants McCoy and Janec could be found
to have “initiated” Plaintiff's prosecution, the “existence
of probable cause is a complete defense to a claim of
malicious prosecution in New York.” Savino, 331 F.3d at 72
(2d Cir.2003). “The determination of probable cause in the
context of malicious prosecution is essentially the same as for
false arrest, ‘except that [a claim for malicious prosecution]
must be evaluated in light of the facts known or believed
at the time the prosecution is initiated, rather than at the
time of arrest.’ “ Danielak v. City of New York, No. 02 CV
2349, 2005 WL 2347095 at * 10 (E.D.N.Y. Sept.26, 2005)
(internal quotation marks and citation omitted), aff'd, 209
F. App'x 55 (2d Cir.2006). “In order for probable cause to
dissipate, the groundless nature of the charges must be made
apparent by the discovery of some intervening fact.” Lowth v.
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Town of Cheektowaga, 82 F.3d 563, 571 (2d Cir.1996). Here,
no new facts came to light after Plaintiff's arrest, and both
E.K. and O.M. remained consistent in their identification of
plaintiff and their accusations against him. N.Y.P.D. records
further show that Defendant McCoy vouchered evidence (e.g.
screwdrivers, a hammer etc.) that supported the complaining
victims' allegations following plaintiff's arrest, suggesting
that the strength of the evidence against plaintiff increased
after his arrest. Nor does the record support Plaintiff's
allegation that the security video proves his innocence.
As Plaintiff has not established the first two elements of
his malicious prosecution claim, the claim necessarily fails.
However, there are also no facts from which the Court could
infer that defendants were motived by actual malice, see,
e.g., Fulton v. Robinson, 289 F.3d 188, 198 (2d Cir.2002)
(affirming grant of summary judgment for defendants after
the plaintiff failed to present evidence of actual malice),
or that the proceedings were terminated in Plaintiff's favor,
which only occurs when the final disposition of the case: (1)
involves the merits and (2) tends to indicate the accused's
innocence as opposed to a dismissal of cumulative charges.
See, e.g., Murphy v. Lynn, 118 F.3d 938, 948 (2d Cir.1997).
“Where a prosecution did not result in an acquittal, it is
generally not deemed to have ended in favor of the accused,
for purposes of a malicious prosecution claim, unless its final
disposition is such as to indicate the accused's innocence.”
Fulton, 289 F.3d at 196. As explained above, the record
indicates that the charges were dismissed as duplicative
for sentencing purposes of charges on which Plaintiff had
already been convicted and sentenced. That outcome is
not indicative of Plaintiff's innocence of the dismissed
charges. Accordingly, the Court grants Defendants' motion
for summary judgment as to Plaintiff's claim for malicious
prosecution against Defendants McCoy and Janec and that
claim is dismissed.
Municipal Liability
*9 Plaintiff also asserts a claim under 42 U.S.C. § 1983
against the City of New York. In order to state a claim
against a municipality under section 1983, a plaintiff must
adequately allege that a deprivation of his constitutional
rights was caused by an official policy or custom of that
municipality. Monell v. Dep't of Social Servs., 436 U.S. 658,
692–94, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978). Because
Plaintiff has failed to present evidence that demonstrates that
his constitutional rights were violated, the city is entitled as
a matter of law to summary judgment dismissing Plaintiff's
section 1983 claims against it. See Askins v. Doe No. 1,
727 F.3d 248, 253 (2d Cir.2013) (“[u]nless a plaintiff shows
that he has been the victim of a federal law tort committed
by persons for whose conduct the municipality can be
responsible, there is no basis for holding the municipality
liable[;] Monell does not create a stand-alone cause of
action under which a plaintiff may sue over a governmental
policy, regardless of whether he suffered the infliction of
a tort resulting from the policy”). If a plaintiff fails to
plausibly allege that municipal employees violated his or her
constitutional rights, the plaintiff's Monell claim “necessarily
fails as well” as against the municipal entity. Kajoshaj v.
New York City Dep't of Educ., ––– F. App'x ––––, 2013 WL
5614113, at *4 (2d Cir. Oct 15, 2013). 12 Plaintiff's state law
claims against the city based on respondeat superior or agency
theories, for false arrest, false imprisonment and malicious
prosecution are also dismissed, for lack of evidence indicating
commission of the underlying violations.
Remaining State Law Claim
Plaintiff's papers may be read liberally to assert a state
law claim for intentional infliction of emotional distress.
As the Court is granting summary judgment dismissing all
of Plaintiff's federal causes of action, the Court declines to
exercise jurisdiction of any remaining state law claims. See
28 U.S.C. § 1367(c)(3); see also, Marcus v. AT & T Corp.,
138 F.3d 46, 57 (2d Cir.1998) (“where the federal claims are
dismissed before trial, the state claims should be dismissed as
well”).
CONCLUSION
For the foregoing reasons, Defendants' motion for summary
judgment is granted. Plaintiff's federal and state law claims for
false arrest, false imprisonment, and malicious prosecution,
and any federal claim for illegal search, are dismissed. The
Court declines to exercise supplemental jurisdiction of any
remaining state law claims, which are dismissed without
prejudice to litigation in state court.
This Memorandum Order resolves docket entry number 30.
The Clerk of Court is hereby requested to enter judgment in
Defendants' favor and close this case.
The Court certifies pursuant to 28 U.S.C. § 1915(a)(3) that
any appeal from this order would not be taken in good
faith, and therefore in forma pauperis status is denied for the
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purpose of an appeal. See Coppedge v. United States, 369 U.S.
438, 444–45, 82 S.Ct. 917, 8 L.Ed.2d 21 (1962).
*10 SO ORDERED.
All Citations
Not Reported in F.Supp.3d, 2014 WL 5089748
Footnotes
1 Plaintiff refers to Defendant Janec as “Janee” in his papers.
2 In his Complaint and his opposition to Defendants' Motion for Summary Judgment, Plaintiff also appears to
allege that he was subject to an unlawful search, although he does not assert this as a separate claim.
3 Facts recited as undisputed are identified as such in the parties' statements pursuant to S.D.N.Y. Local Civil
Rule 56.1 or drawn from evidence as to which there is no non-conclusory contrary factual proffer. Citations
to the parties' respective Local Civil Rule 56.1 Statements (“Def. 56.1 St.” or “Pl. 56.1 St.”) incorporate by
reference the parties' citations to underlying evidentiary submissions.
4 Plaintiff argues that there was no 911 call made to the police officers. (Pl 56.1 St. ¶ 6; see also Pl. Mem.
In Opp. (ECF docket entry no. 43) at ECF pp. 40, 55.) Although Plaintiff cites to a New York City Police
Department “Stop, Question & Frisk Report,” which indicates that the police officers were not on a radio run
on the afternoon of Plaintiff's arrest (see id., Ex. F); the New York City Police Complaint Report from the
same incident indicates that the victims' complaint was received by the police over the radio (see Declaration
of Aimee K. Lulich (“Lulich Decl.”), Ex. E). For the purposes of the instant motion, it does not matter how
the police officers first heard about the complaint, as the victims identified the Plaintiff once the officers had
arrived on the scene.
5 The claims relating to the handcuffs are mentioned for the first time in his opposition and Plaintiff has not
pleaded claims for excessive force in this case.
6 In 2007, Plaintiff had been convicted of unauthorized use of a motor vehicle in the second degree, and
sentenced to two to four years in prison. Plaintiff was incarcerated from October 20, 2007, to August 31,
2010, when he was released subject to the conditions of parole. (Def. 56.1 St. ¶ 3.) As part of his parole
conditions, plaintiff was required to report any arrest to his parole officer and to check-in with his parole officer
once a week. (Id.)
7 In his opposition submission, Plaintiff contends that he did report the November 3, 2010, arrest to his parole
officer (Pl. 56.1 St. ¶ 5), and denies that his parole was revoked, but his deposition testimony was to the
contrary. See Lulich Decl., Ex. B., Tr. 78:121–22.
8 Plaintiff disputes that the bail was set at $1.00 because there was a parole hold on Plaintiff, but admits that
it was set at $1.00. (Pl. 56.1 St. ¶ 13.)
9 Although the Certificate of Disposition proffered by Defendants refers to a conviction upon a plea, in the
sentencing transcript proffered by Plaintiff in his opposition papers, the sentencing judge discusses a bench
trial and the evidence presented therein. (See Pl. Mem. in Opp., Ex. A, at ECF pp. 90–97; ECF docket entry
no. 43–1, at ECF pp. 1–3.)
10 Plaintiff disputes that the charges were dismissed as being “covered by his felony conviction and sentence”
and proffers his own assertion that there was a final determination in his favor. (Pl. 56.1 St. ¶ 18.) Defendants'
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version is, however, corroborated by the disposition documentation proffered by Plaintiff in his opposition
and by Defendants in support of this motion—the Certificate of Disposition of the charges arising from the
December 13, 2010, arrest notes “DISM–CONVICTION UNRELATED DKT 5448–2010” and a “Record of
Court Action” reads in relevant part “Dismissed as covered by Ind. 5448/2010.” (See Pl. Opp. Mem., Ex. R.,
ECF docket entry no. 44–10, at ECF pp. 14–15; Lulich Decl., Ex. J.)
11 Defendants argue that neither of the named Defendant officers conducted the search, but this is a disputed
issue of fact, as Plaintiff claims that the Defendants were personally involved or, at the very least, failed to
intervene.
12 Furthermore, aside from naked boilerplate allegations against the City of New York in his opposition, the
Plaintiff has also not sufficiently demonstrated that the City of New York had a custom, policy, or practice
of conducting unlawful arrests, searches, or engaging in malicious prosecution so as to sustain a section
1983 claim.
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Brown v. Peters, Not Reported in F.Supp. (1997)
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1997 WL 599355
Only the Westlaw citation is currently available.
United States District Court, N.D. New York.
Kenneth BROWN, Plaintiff,
v.
Andrew PETERS, Warden, Watertown Correctional
Facility; Joseph Williams, Warden, Lincoln Work–
Release Center; Francis J. Herman, Senior Parole
Officer Interstate Bureau; T. Stanford, Senior Parole
Officer; Deborah Stewart, Parole Officer; John Doe #
1, Parole Agent, Watertown Correctional Facility; John
Doe # 2, Parole Agent, Lincoln Work Release Center;
Susan Bishop, Director of Interstate Compact, South
Carolina; Cecil Magee, Parole Officer, South Carolina;
Frank Barton, Parole Officer, South Carolina; John
McMahan, Parole Officer, South Carolina, Defendants.
No. Civ.A. 95CV1641RSPDS.
|
Sept. 22, 1997.
Attorneys and Law Firms
Kenneth Brown, State Court Institute–Greene, Waynesburg,
PA, plaintiff, pro se.
Dennis C. Vacco, New York State Attorney General, The
Capitol Albany, NY, for defendants Peters, Herman Stewart,
Doe # 1, Doe # 2, and Williams, Jeffrey M. Dvorin, Assistant
Attorney General, Carl N. Lundberg, Chief Legal Counsel,
South Carolina Department of Probation, Columbia, SC, for
defendants Bishop, Magee, Barton, McMahan, and Stanford,
Carl N. Lundberg, of Counsel.
DECISION AND ORDER
POOLER, J.
*1 The above matter comes to me following a Report–
Recommendation by Magistrate Judge Daniel Scanlon, Jr.,
duly filed on April 17, 1997. Following ten days from the
service thereof, the Clerk has sent me the entire file, including
any and all objections filed by the parties herein.
Plaintiff Kenneth Brown commenced this Section 1983 civil
rights action on November 17, 1995. On February 12,
1996, Magistrate Judge Scanlon ordered Brown to submit an
amended complaint alleging the specific acts committed by
the individuals named as defendants which Brown claimed
violated his constitutional rights. Brown filed an amended
complaint on March 21, 1996. In his amended complaint,
Brown alleged that defendants violated his rights under the
Eighth and Fourteenth Amendments by failing to process
properly his interstate compact paperwork, resulting in Brown
being imprisoned pursuant to a parole hold when in fact
he had never violated the conditions of his parole. For a
more complete statement of Brown's claims, see his amended
complaint. Dkt. No. 5.
On August 5, 1996, defendants Peters and Williams made
a motion to dismiss for failure to state a claim pursuant to
Fed.R.Civ.P. 12(b)(6). Dkt. No. 13; Dkt. No. 14, at 2. On
August 19, 1996, defendants Bishop, Magee, Barton, and
McMahan made a motion to dismiss the complaint against
them or, in the alternative, for summary judgment. Dkt. No.
20. On October 17, 1996, defendants Herman, Stewart, and
Stanford made a motion to dismiss for failure to state a
claim. Dkt. No 34. On April 17, 1996, Magistrate Judge
Scanlon recommended that all defendants' motions to dismiss
be granted and that the complaint be dismissed. Dkt. No. 50.
On June 9, 1997, Brown filed objections to the
magistrate judge's report-recommendation, having been
granted additional time in which to do so. Dkt. No. 52. In
addition, Brown filed on June 9, 1997, a motion for leave to
file a second amended complaint and a copy of his proposed
amended complaint. Dkt. No. 53. I turn first to the last motion
filed, Brown's motion for leave to amend his complaint a
second time.
Brown seeks to file a second amended complaint “setting
forth in detail the personal involvement of each defendant
and how their acts of commission and omission served to
deprive plaintiff of Constitutionally secured rights.” Dkt. No.
53. The district court has discretion whether to grant leave
to amend. Ruffolo v. Oppenheimer & Co., 987 F.2d 129,
131 (2d Cir.1993). In exercising that discretion, the court
should freely grant leave to amend when justice so requires.
Fed.R.Civ.P. 15(a). However, the court need not grant leave
to amend where it appears that amendment would prove to be
unproductive or futile. Ruffolo, 987 F.2d at 131.
Here, Brown moved to amend his complaint to add additional
allegations against the named defendants. However, the
additional allegations fail to cure the deficiency which
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forms the basis of defendants' motion to dismiss—
the absence of defendants' personal involvement in a
constitutional deprivation. Section 1983 imposes liability
upon an individual only when personal involvement of that
individual subjects a person to deprivation of a federal right.
See Monell v. Dep't of Soc. Servs., 436 U.S. 658, 98 S.Ct.
2018, 56 L.Ed.2d 611 (1978). A complaint is fatally defective
if it fails to allege personal involvement sufficient to establish
that a supervisor was “directly and personally responsible for
the purported unlawful conduct.” Alfaro Motors, Inc. v. Ward,
814 F.2d 883, 886 (2d Cir.1987).
*2 Brown's proposed amended complaint alleges in
conclusory fashion that defendants acted “in a grossly
negligent and concerted manner which breached their duties
owed to Plaintiff and is the proximate cause of [the violation
of plaintiff's constitutional rights].” Proposed Am. Compl.,
at 3. Brown continues in the same vein, stating that
defendants owed duties to plaintiff to carry out their jobs in a
professional manner and they failed to carry out those duties
appropriately. The complaint states that defendants held
specific responsibilities, such as checking for outstanding
warrants, which if performed properly should have alerted
them to a problem. However, nowhere does the complaint
set forth allegations that these defendants either participated
directly in any constitutional infraction or that they were even
aware of such an infraction. The proposed amended complaint
merely alleges that these defendants failed in performing their
supervisory and ministerial functions. “These bare assertions
do not state a claim under 42 U.S.C. § 1983.” Smiley v. Davis,
1988 WL 78306, *2 (S.D.N.Y.).
This plaintiff previously has had the opportunity to amend his
complaint for the same reason asserted here, to allege personal
involvement on the part of defendants. Brown's first amended
complaint failed to accomplish that task, and it appears that
even if allowed to amend again Brown would be unable to
make the requisite allegations with sufficient specificity to
sustain his complaint. Consequently, I find that amendment
would be futile, and I deny Brown's motion for leave to amend
his complaint.
I turn now to the magistrate judge's report-recommendation
and defendants' motions. The magistrate judge recommends
that I grant defendants' motions and dismiss the complaint
as to all defendants. The report-recommendation clearly
describes the grounds on which the magistrate judge
recommends dismissal as to each defendant. Fed.R.Civ.P.
72(b) requires the district judge to make a de novo
determination on “any portion of the magistrate's disposition
to which specific, written objection has been made.” Brown's
objections fail to address directly any of the analysis.
Brown's objections state (1) that he has been deprived of
his constitutional rights; (2) that he has stated a cause of
action; (3) that the court wrongly refused to appoint an
attorney for him and wrongly stayed discovery pending the
outcome of these motions; (4) that he seeks to file an amended
complaint; (5) the standard of review for a Fed.R.Civ.P. 12(b)
(6) motion; (6) that he disagrees with the magistrate judge's
recommendation to grant defendants' motions because the
allegations in his complaint, which he repeats, show that his
rights were violated; and (7) the text of the Fourteenth and
Eighth Amendments.
Even affording the objections the liberal reading required
for pro se pleadings, I find that these objections fail to
state any basis whatsoever, much less a specific one, for
the court not to adopt the magistrate judge's rulings. They
simply re-state the relief sought and the facts on which Brown
grounds his complaint and conclude that the magistrate
judge's conclusions are wrong. When the parties make only
frivolous, conclusive, or general objections, the court reviews
the report-recommendation for clear error. See Camardo v.
General Motors Hourly–Rate Employees Pension Plan, 806
F.Supp. 380, 382 (W.D.N.Y.1992) (court need not consider
objections which are frivolous, conclusive, or general and
constitute a rehashing of the same arguments and positions
taken in original pleadings); Chambrier v. Leonardo, 1991
WL 44838, *1 (S.D.N.Y.) (restatement of allegations already
before the court and assertion that valid constitutional claim
exists insufficient to form specific objections); Schoolfield
v. Dep't of Correction, 1994 WL 119740, *2 (S.D.N.Y.)
(objections stating that magistrate judge's decisions are
wrong and unjust, and restating relief sought and facts
upon which complaint grounded, are conclusory and do not
form specific basis for not adopting report-recommendation);
Vargas v. Keane, 1994 WL 693885, *1 (S.D.N.Y.) (general
objection that report does not address violation of petitioner's
constitutional rights is a general plea that report not be
adopted and cannot be treated as objection within the meaning
of 28 U.S.C. § 636), aff'd, 86 F.3d 1273 (2d Cir.), cert.
denied, 519 U.S. 895, 117 S.Ct. 240, 136 L.Ed.2d 169
(U.S.1996). See also Scipio v. Keane, 1997 WL 375601, *1
(1997) (when objections fail to address analysis directly, court
reviews report-recommendation for clear error); Fed.R.Civ.P.
72(b), Advisory Comm. Note (when no specific, written
objections filed, “court need only satisfy itself that there is
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Brown v. Peters, Not Reported in F.Supp. (1997)
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no clear error on the face of the record in order to accept the
recommendation”).
*3 Because Brown fails to make specific objections or
provide any basis for his general objections, I review the
report-recommendation for clear error. After careful review,
I conclude that the magistrate judge's report-recommendation
is well-reasoned and is not clearly erroneous. 1 The
magistrate judge employed the proper standard, accurately
recited the facts, and reasonably applied the law to those facts.
Consequently, I adopt the report-recommendation.
CONCLUSION
Because plaintiff's proposed amendment demonstrates that
amendment would be futile, I deny plaintiff's motion for leave
to amend his complaint. I approve the magistrate judge's
recommendation and grant defendants' motions to dismiss.
Plaintiff's complaint is dismissed in its entirety.
IT IS SO ORDERED.
ORDER and REPORT–RECOMMENDATION
This matter was referred to the undersigned for report and
recommendation by the Hon. Rosemary S. Pooler, United
States District Judge, by Standing Order dated November
12, 1986. Currently before this Court are a number of
motions. Defendants Peters and Williams have filed a motion
to dismiss (dkt.13); defendants Bishop, Magee, Barton and
McMahan have filed a motion for summary judgment, or in
the alternative to dismiss (dkt.20); and defendants Herman,
Stewart and Stanford also have filed a motion to dismiss
(dkt.34). Plaintiff opposes these three motions (dkts.27, 29,
33, 38). Defendants Bishop, Magee and McMahan have filed
a motion to stay discovery (dkt.41) and plaintiff has filed a
motion to extend time (dkt.44) in which to file opposition to
the latter motion for a stay of discovery.
The Court addresses these issues seriatim.
BACKGROUND
Plaintiff's amended complaint, which he has brought pursuant
to 42 U.S.C. § 1983, alleges the following facts. In
October, 1991, plaintiff was incarcerated in the Watertown
Correctional Facility in Watertown, New York. He applied
for an interstate compact because he wanted to return to
South Carolina to live with his common law wife, Pamela
Reid. During the application process, he was interviewed by
the facility's parole officer, identified only as defendant John
Doe # 1. After signing the necessary papers, his application
was forwarded to defendant Andrew Peters, the facility's
superintendent, who reviewed, signed and forwarded the
papers to the Interstate Bureau. Amend. Compl. at ¶¶ 1–2;
Exs. A, B.
On or about January 15, 1992, while his compact was waiting
for review at the Interstate Bureau, plaintiff was approved for
work release and sent to the Lincoln Work Release Center
in New York City. While at the center, plaintiff spoke to a
parole officer, defendant John Doe # 2, and told him that
he was seeking a compact that would return him to South
Carolina upon his conditional release. Plaintiff claims the
parole officer told him that he would handle the necessary
paperwork, although the officer had had no experience with
an interstate compact. Amend. Compl. at ¶¶ 3, 4.
*4 Plaintiff, meanwhile, asked Reid whether any officials
had contacted her in South Carolina regarding his prospective
residence in that state. Upon discovering no one had contacted
her, plaintiff asked a lawyer he knew, Navron Ponds, to
inquire as to his compact status. In March, 1992, the
lawyer spoke with defendant Susan Bishop, who is the
director of the interstate compact program in South Carolina.
Bishop allegedly told Ponds that plaintiff “was disapproved
because there was a discrepancy about approving plaintiff['s]
compact.” The “discrepancy” was the fact that plaintiff owed
the state of South Carolina eighty-six days of confinement
from a previous sentence. Plaintiff claims Bishop told Ponds
to contact defendants Cecil Magee and Frank Barton, who
worked for the South Carolina Parole Department. Sometime
in March, 1992, Ponds made some calls to Barton and Magee.
A verbal agreement was reached, and plaintiff, upon speaking
with Barton and Magee was told that his compact had been
approved. He also was told that he should report to the South
Carolina Department of Parole upon being released. Amend.
Compl. at ¶¶ 5–7.
Prior to leaving the Lincoln Work Release Center, plaintiff
processed paperwork related to his interstate compact. His
paperwork was sent by Doe # 2 to defendant Joseph Williams,
the superintendent of the center. Williams reviewed, signed
and returned the paperwork to plaintiff. On May 1, 1992,
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Brown v. Peters, Not Reported in F.Supp. (1997)
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upon his release from the center, plaintiff traveled to South
Carolina. Three days later, he entered a South Carolina parole
office and promptly was arrested because of the eighty-
six days of confinement that he owed the state. Plaintiff's
paperwork was given to defendant John McMahan, a parole
officer. Plaintiff claims that McMahan never returned this
paperwork to him. On May 20, 1992, the state of South
Carolina revoked plaintiff's parole and plaintiff was returned
to prison to serve the eighty-six days that he owed. When he
asked McMahan what would happen to his one year of parole
from New York, the officer allegedly told him that his New
York parole would run concurrently with his South Carolina
parole, and that when he finished his South Carolina parole,
he would not owe any parole whatsoever. Plaintiff served the
eighty-six days he owed and was released on July 31, 1992.
Amend. Compl. at ¶¶ 8–10.
In February, 1993, plaintiff was arrested on robbery charges
in South Carolina. The charges ultimately were dropped,
but he apparently encountered some difficulties regarding
this arrest as a result of a parole hold that New York state
had placed upon him. Bishop's office told him that it had
nothing to do with his parole hold and that any problem that
he had was between him and the state of New York. He
talked to authorities in Albany, New York regarding the parole
hold, but was not successful in his efforts to have the hold
removed. On September 30, 1993, after had been extradited
to New York as a fugitive from justice, plaintiff was given a
preliminary hearing at Riker's Island, New York. The hearing
officer found no probable cause that plaintiff had violated any
condition of parole. He was released. Amend. Compl. at ¶¶
11–14; Exs. C–J.
*5 Plaintiff claims that he would not have suffered hardships
if his interstate compact had been handled correctly. He
alleges that defendant Deborah Stewart failed to follow up
and see whether plaintiff had arrived in South Carolina. If she
had, he argues, she would have discovered that he had been
arrested upon his arrival. He alleges that defendant Francis
Herman, a parole officer at the Interstate Bureau failed to
do his job by not investigating plaintiff's violation reports.
Amend. Compl. at ¶¶ 15–17; Exs. F–I.
Plaintiff asserts that the foregoing amounts violations of his
Eighth and Fourteenth Amendment rights, wherefore he both
compensatory and declaratory relief.
DISCUSSION
A. Motion to Dismiss by Williams and Peters.
Williams and Peters have filed a motion to dismiss plaintiff's
complaint pursuant to FED.R.CIV.P. 12(b)(6) on the grounds
that it fails to state a claim upon which relief may be
granted. In a Rule 12(b)(6) motion, all factual allegations
in the complaint must be taken and construed in plaintiff's
favor. See LaBounty v. Adler, 933 F.2d 121, 122 (2d
Cir.1991) (citing Ortiz v. Cornette, 867 F.2d 146, 149 (1989)).
The Court's role is not to assess whether plaintiffs have
raised questions of fact or demonstrated an entitlement
to a judgment as a matter of law, as in a motion made
pursuant to FED.R.CIV.P. 56 for summary judgment, but
rather to determine whether plaintiff's complaint sufficiently
alleges all of the necessary legal elements to state a claim
under the law. See Christopher v. Laidlaw Transit, Inc.
899 F.Supp. 1224, 1226 (S.D.N.Y.1995), (citing Ricciuti v.
New York City Transit Authority, 941 F.2d 119, 124 (2d
Cir.1991)). Factual allegations in brief or memoranda may not
be considered. Fonte v. Board of Managers of Continental
Towers Condominium, 848 F.2d 24, 25 (2d Cir.1988). The
Court now turns to the issues presented.
Personal involvement of defendants in alleged constitutional
deprivations is a prerequisite to an award of damages under
§ 1983. Wright v. Smith, 21 F.3d 496, 501 (2d Cir.1994).
As superintendents at New York State Correctional facilities,
Williams and Peter may be found personally involved in the
alleged deprivation of plaintiff's constitutionally protected
rights by a showing that they: (1) directly participated in the
infraction; (2) knew of the infraction, but failed to remedy
the wrong; (3) created or continued a policy or custom under
which unconstitutional practices occurred; or (4) were grossly
negligent in managing subordinates who caused unlawful
conditions or events. Id., (quoting Williams v. Smith, 781
F.2d 319, 323–24 (2d Cir.1986)). Supervisory liability also
may be imposed against Williams or Peters with a showing
of gross negligence or deliberate indifference to plaintiff's
constitutional rights. Id. Absent some personal involvement
by Williams or Peters in the allegedly constitutionally infirm
conduct of their subordinates, neither can be held liable under
§ 1983. Gill v. Mooney, 824 F.2d 192, 196 (2d Cir.1987).
*6 Plaintiff has not provided any evidence linking either
Williams or Peters to his alleged constitutional deprivations.
All that plaintiff has alleged is that Williams and Peters,
as superintendents, have reviewed and signed paperwork
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Brown v. Peters, Not Reported in F.Supp. (1997)
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relating to plaintiff's compact. Though it has long been held
that pro se complaints are held to “less stringent standards
than formal pleadings drafted by lawyers” for the purpose of a
motion to dismiss under Rule 12(b)(6), Haines v. Kerner, 404
U.S. 519, 520, 92 S.Ct. 594, 595–96, 30 L.Ed.2d 652 (1972),
plaintiff has not explained how the ministerial conduct of
these two defendants was violative of the Constitution. Their
motion to dimiss should be granted.
B. Motion for Summary Judgment or to Dismiss by Bishop,
Magee, Barton and McMahan.
Bishop, Magee, Barton and McMahan have filed a motion
for summary judgment, or in the alternative a motion to
dismiss. The Court will treat their motion as a motion to
dismiss. “[C]omplaints relying on the civil rights statutes are
insufficient unless they contain some specific allegations of
fact indicating a deprivation of rights, instead of a litany
of general conclusions that shock but have no meaning.”
Barr v. Adams, 810 F.2d 358, 363 (2d Cir.1987). Plaintiff
has not alleged specifically how the conduct of these four
defendants infringed upon his constitutional rights. In his
amended complaint, he contends that defendants violated the
Constitution by “continuously breaching [[[their] duty” to
him. This language underscores the defect with the complaint:
if it alleges anything at all, it alleges that defendants were
negligent in handling plaintiff's interstate compact and parole.
To state a cognizable § 1983 claim, the prisoner must allege
actions or omissions sufficient to demonstrate deliberate
indifference; mere negligence will not suffice. Hayes v.
New York City Dept. of Corrections, 84 F.3d 614, 620 (2d
Cir.1996); Morales v. New York State Dep't of Corrections,
842 F.2d 27, 30 (2d Cir.1988) (section 1983 does not
encompass a cause of action sounding in negligence).
The Court finds that the claims against Bishop, Magee, Barton
and McMahan should be dismissed.
C. Motion to Dismiss by Herman, Stewart and Stanford.
Plaintiff's claim against Stewart is that she failed to follow
up and see whether plaintiff had arrived in South Carolina.
Herman, he likewise asserts, failed to do his job because he
did not investigate plaintiff's violation reports. Plaintiff has
not alleged how these actions run afoul of the Constitution;
and again, these claims seem to be grounded in negligence,
which is not actionable under § 1983. Hayes, 84 F.3d at 620.
Plaintiff's claim against Stanford must fail because his
complaint literally fails to state a claim against that
defendant. Aside from naming Stanford as a defendant, and
alleging that he was the appointed Senior Parole Officer at
plaintiff's September 30, 1993 revocation hearing at Riker's
Island, plaintiff does not detail how Stanford violated his
constitutional rights. Absent some personal involvement by
Stanford in the allegedly constitutionally infirm conduct of
his subordinates, he cannot be held liable under § 1983. Gill,
824 F.2d at 196.
*7 Accordingly, the Court finds that Stanford, Stewart and
Herman's motion to dismiss should be granted.
D. Plaintiff's “John Doe” Claims.
In so far as neither John Doe # 1 nor John Doe # 2 have been
identified and served in this matter, the Court does not have
jurisdiction over these parties and does not reach the merits
of plaintiff's claims against them.
E. Discovery Motions.
Defendants Bishop, Magee and McMahan have filed a motion
to stay discovery until the Court has made a ruling on their
motion to dismiss. Plaintiff has filed a motion to extend
the time in which he may file opposition to defendants'
motion. Plaintiff, however, has filed his opposing response
(dkt.47), therefore his instant discovery motion is denied as
moot. In that the Court recommends granting defendants'
motion to dismiss, discovery in this matter would be fruitless.
Accordingly, defendants' motion for a stay of discovery
pending the resolution of their motion to dismiss is granted.
CONCLUSION
WHEREFORE, based upon the foregoing analysis, it is
hereby
ORDERED, that plaintiff's motion to extend the time to file
an opposing reply (dkt.44) is denied as moot; and it is further
ORDERED, that defendants Bishop, Magee and McMahan's
motion to stay discovery until their motion to dismiss is
decided (dkt.41) is granted; and it is further
RECOMMENDED, that defendants Peters and Williams'
motion to dismiss (dkt.13) be granted; and it is further
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Brown v. Peters, Not Reported in F.Supp. (1997)
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RECOMMENDED, that defendants Bishop, Magee, Barton
and McMahan's motion to dismiss (dkt.20) be granted; and it
is further
RECOMMENDED, that defendants Herman, Stewart and
Stanford's motion to dismiss (dkt.34) be granted.
Pursuant to 28 U.S.C. § 636(b)(1) and Local Rule 72.1(c),
the parties have ten (10) days within which to file written
objections to the foregoing report. Such objections shall be
filed with the Clerk of the Court. FAILURE TO OBJECT
TO THIS REPORT WITHIN TEN (10) DAYS WILL
PRECLUDE APPELLATE REVIEW. Roldan v. Racette,
984 F.2d 85, 89 (2d Cir.1993) (citing Small v. Secretary of
Health and Human Services, 892 F.2d 15 (2d Cir.1989)); 28
U.S.C. § 636(b)(1); FED.R.CIV.P. 6(a), 6(e) and 72.
All Citations
Not Reported in F.Supp., 1997 WL 599355
Footnotes
1 I note, however, that the report-recommendation would survive even de novo review.
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Cipriani v. Buffardi, Not Reported in F.Supp.2d (2007)
© 2026 Thomson Reuters. No claim to original U.S. Government Works. 1
2007 WL 607341
Only the Westlaw citation is currently available.
United States District Court,
N.D. New York.
Paul CIPRIANI, Plaintiff,
v.
Harry C. BUFFARDI, Sheriff; Schenectady County Jail;
Cheryl Clark, M.D.; Kevin J. O'Connor, Defendants.
No. 9:06-CV-0889(LEK/DRH).
|
Feb. 20, 2007.
Attorneys and Law Firms
Paul Cipriani, Plaintiff, pro se.
DECISION and ORDER
LAWRENCE E. KAHN, U.S. District Judge.
*1 Presently before the Court is an amended complaint
filed by Plaintiff Paul Cipriani (“Plaintiff”). Amended Compl.
(Dkt. No. 10). This amended complaint was submitted
in compliance with the Memorandum-Decision and Order
issued by this Court on November 27, 2006 (“November
Order”). Mem.-Decision and Order (Dkt. No. 7).
In its November Order, the Court advised plaintiff that he
must set forth facts demonstrating that Defendants were
personally involved in a violation of Plaintiff's rights. Id. at 4.
Plaintiff was also advised that in order to establish the liability
of a municipality, he must allege a custom or policy which is
the moving force behind the violation. Id.
In his amended complaint, Plaintiff names thirteen defendants
and asserts numerous claims against them arising from his
confinement at Schenectady County Jail. Amended Compl.
(Dkt. No. 10).
The Court notes that plaintiff has not named “Schenectady
County Jail,” “Cheryl Clark,” or “Kevin J. O'Connor” in
his amended Complaint. Therefore, “Schenectady County
Jail,” “Cheryl Clark,” and “Kevin J. O'Connor” are hereby
dismissed as defendants in this action.
The Court also notes that Plaintiff's amended Complaint
mentions “Mr. Booth” and “Mr. Purdy” only in the caption,
and fails to allege any act or omission by these individuals.
Dismissal is appropriate where a defendant is listed in the
caption, but the body of the complaint fails to indicate what
the defendant did to the plaintiff. Gonzalez v. City of New
York, No. 97 CIV. 2246(MGC), 1998 WL 382055, at *2
(S.D.N.Y. July 9, 1998) (citing Crown v. Wagenstein, No. 96
CIV. 3895(MGC), 1998 WL 118169, at *1 (S.D.N.Y.Mar.16,
1998) (mere inclusion of warden's name in complaint
insufficient to allege personal involvement) and Taylor v. City
of New York, 953 F.Supp. 95, 99 (S.D.N.Y.1997)). Because
plaintiff has failed to allege any personal involvement on the
part of defendants “Mr. Booth” and “Mr. Purdy”, they are
hereby dismissed as defendants in this action.
In his amended Complaint, Plaintiff alleges that the remaining
Defendants committed various violations of his constitutional
rights, including inadequate medical care, breach of doctor-
patient confidentiality, excessive force, denial of due process
in a disciplinary proceeding, and interference with the
grievance process. Amended Compl. (Dkt. No. 10).
Based on the foregoing, Plaintiff's amended complaint as
against the remaining Defendants is accepted for filing.
Plaintiff is advised, however, that the U.S. Marshals cannot
effect service on a “John Doe” defendant. In the event
that plaintiff wishes to pursue this claim against the “John
Doe” defendants named in the amended Complaint, he must
take reasonable steps to ascertain their identities. Plaintiff
may then file a Motion to amend his complaint and seek
leave of the Court to add such individuals, by name, as
defendants to this lawsuit. Plaintiff is further advised that if
these individuals are not timely served, the action will be
against them will be dismissed.
*2 WHEREFORE, it is hereby
ORDERED, that “Mr. Booth,” “Mr. Purdy,” “Schenectady
County Jail,” “Cheryl Clark,” and “Kevin J. O'Connor” are
DISMISSED as defendants in this action, and it is further
ORDERED, that the Clerk revise the docket to add
“Schenectady County,” “Mr. Burns,” “Mr. Jones,” “Mr.
Adams,” “Ms. Jones,” “Ms. Hull,” “John Doe # 1,” “John Doe
# 7,” “John Doe # 10,” and “Loraine Walker” as defendants
in this action, and it is further
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Cipriani v. Buffardi, Not Reported in F.Supp.2d (2007)
© 2026 Thomson Reuters. No claim to original U.S. Government Works. 2
ORDERED, that the Clerk issue summonses naming the
remaining defendants and forward them, along with copies of
the amended Complaint (Dkt. No. 10), to the United States
Marshal for service upon the defendants, together with a copy
of this Order. 1 The Clerk shall also forward a copy of the
summons and amended Complaint by mail to the County
Attorney for Schenectady County, together with a copy of this
Order, and it is further
ORDERED, that a formal response to Plaintiff's amended
Complaint be filed by Defendants or their counsel as provided
for in Rule 12 of the Federal Rules of Civil Procedure
subsequent to service of process on Defendants, and it is
further
ORDERED, that Plaintiff take reasonable steps to ascertain
the identities of any other individual(s) that purportedly
violated Plaintiff's civil and/or constitutional rights and, if
appropriate, file a Motion to amend his complaint and add
such individuals, by name, as defendants to this lawsuit, and
it is further
ORDERED, that all pleadings, motions and other documents
relating to this action must bear the case number assigned to
this action and be filed with the Clerk of the United States
District Court, Northern District of New York, 7th Floor,
Federal Building, 100 S. Clinton St., Syracuse, New York
13261-7367. Any paper sent by a party to the Court or the
Clerk must be accompanied by a certificate showing that
a true and correct copy of it was mailed to all opposing
parties or their counsel. Any document received by the Clerk
or the Court which does not include a proper certificate of
service will be returned, without processing. Plaintiff must
comply with requests by the Clerk's Office for any documents
that are necessary to maintain this action. All parties must
comply with Local Rule 7.1 of the Northern District of New
York in filing motions, which must be returnable before the
assigned Magistrate Judge with proper allowance for notice as
required by the Rules. Plaintiff is also required to promptly
notify the Clerk's Office and all parties or their counsel of
any change in his address; his failure to do so will result
in the dismissal of this action. All motions will be decided
on submitted papers without oral argument unless otherwise
ordered by the Court; and it is further
ORDERED, that the Clerk serve a copy of this Order on
plaintiff by regular mail.
IT IS SO ORDERED.
All Citations
Not Reported in F.Supp.2d, 2007 WL 607341
Footnotes
1 Plaintiff was granted leave to proceed with this action in forma pauperis. Mem.-Decision and Order (Dkt.
No. 7).
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Crown v. Wagenstein, Not Reported in F.Supp. (1998)
© 2026 Thomson Reuters. No claim to original U.S. Government Works. 1
1998 WL 118169
Only the Westlaw citation is currently available.
United States District Court, S.D. New York.
Lakim CROWN, Plaintiff,
v.
Warden WAGENSTEIN; Parker T. # 10639 of
Emergency Response Unit, et al., Defendants.
No. 96 CIV. 3895(MGC).
|
March 16, 1998.
Attorneys and Law Firms
Lakim Crown, Brooklyn, for Plaintiff, Pro Se.
Paul A. Crotty, Esq., Corporation Counsel of the City of New
York, Attorney for Defendants Wangenstein and Parker, New
York, By Renee R. Nebens, Esq.
OPINION AND ORDER
CEDARBAUM, J.
*1 This is an action for damages brought by a pro se plaintiff
pursuant to 42 U.S.C. § 1983. Defendant Wangenstein moves,
pursuant to Fed.R.Civ.P. 12(b)(6), to dismiss the complaint
for failure to state a claim upon which relief can be granted
against him in either his personal or official capacity. For the
reasons discussed below, defendant's motion is granted.
The complaint alleges that on November 28, 1995, while
plaintiff was incarcerated at New York City's Otis Bantum
Correctional Center (“OBCC”), plaintiff was assaulted by a
number of correction officers. (Compl. at 3–4). As a result,
plaintiff alleges that he sustained injuries to his head, neck,
back, and right leg. (Compl. at 4). In addition to the officers
involved in the assault, plaintiff sues Wangenstein, the warden
of OBCC at the time of the alleged assault.
Discussion
A motion to dismiss for failure to state a claim must be granted
if, when viewed in the light most favorable to the plaintiff
and when all allegations of the complaint are accepted as true,
it appears beyond doubt that the plaintiff can prove no set
of facts in support of the claim which would entitle him to
relief. Bolt Electric, Inc. v. City of New York, 53 F.3d 465,
469 (2d Cir.1995). In addition, a complaint and supporting
papers prepared by a pro se plaintiff must be read liberally and
interpreted to “raise the strongest arguments they suggest.”
Soto v. Walker, 44 F.3d 169, 173 (2d Cir.1995).
When an individual defendant is sued under § 1983, that
defendant's personal involvement in the alleged constitutional
deprivation is a prerequisite to an award of damages. See
Wright v.. Smith, 21 F.3d 496, 501 (2d Cir.1994). For a
claim under § 1983, a complaint sufficiently alleges personal
involvement of a supervisory official if it alleges one of the
following: (a) direct participation in the alleged wrong; (b)
failure to remedy a violation after receiving notice of it; (c)
creation of a policy or custom under which unconstitutional
practices occur; or (d) grossly negligent management of
subordinates who cause the constitutional violation. See Black
v. Coughlin, 76 F.3d 72, 74 (2d Cir.1996).
A § 1983 claim against a municipal official in his official
capacity is treated as a claim against the municipality itself.
Brandon v. Holt, 469 U.S. 464, 471–72, 105 S.Ct. 873,
83 L.Ed.2d 878 (1985). Section 1983 imposes liability on
municipalities only when the action that is alleged to be
unconstitutional implements or executes an official policy or
custom. See Monell v. Department of Social Services, 436
U.S. 658, 690–91, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978).
From the complaint, it is unclear whether Wangenstein is
being sued in his personal or official capacity. However, pro
se complaints, if possible, should be construed as asserting
both claims. Jackson v. Dinkins, 1995 WL 657075 at *1
(S.D.N.Y. Nov.8, 1995)(citing Frank v. Relin, 1 F.3d 1317,
1326 (2d Cir.)(“a plaintiff who has not clearly identified in her
complaint the capacity in which the defendant is sued should
not have the complaint automatically construed as focusing
on one capacity to the exclusion of the other”), cert. denied,
510 U.S. 1012, 114 S.Ct. 604, 126 L.Ed.2d 569 (1993)).
*2 The complaint does allege an assault by certain members
of the OBCC Emergency Response Unit. (Compl. at 3–4). It
alleges that while the plaintiff was making a telephone call,
members of the Emergency Response Unit entered housing
area 1N and defendant Parker verbally harassed the plaintiff,
and with the assistance of other members of the Emergency
Response Unit, assaulted him. (Compl. at 3–4). However,
the complaint does not allege the personal involvement
of Warden Wangenstein. The complaint mentions Warden
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Wangenstein only in the caption, and fails to allege any act or
omission by Wangenstein. See Taylor v. City of New York, 953
F.Supp. 95, 99 (S.D.N.Y.1997)(Edelstein, J.)(finding mere
inclusion of warden's name in a complaint insufficient to
allege personal involvement).
As for Warden Wangenstein's liability in his official capacity,
the complaint fails to allege a municipal policy or custom
that defendant was executing, or that such a policy or custom
caused the alleged violation of the plaintiff's constitutional
rights, as required by Monell. The absence of any such
allegation prevents a finding of liability for defendant
Wangenstein in his official capacity. See Monell, 436 U.S. at
694.
Conclusion
Because the complaint fails to state a claim against Warden
Wangenstein upon which relief can be granted, the motion to
dismiss defendant Wangenstein is granted.
SO ORDERED
All Citations
Not Reported in F.Supp., 1998 WL 118169
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Dean v. Annucci, Not Reported in Fed. Supp. (2023)
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2023 WL 2325074
Only the Westlaw citation is currently available.
United States District Court, N.D. New York.
William M. DEAN, Plaintiff,
v.
Anthony J. ANNUCCI, et al., Defendants.
9:22-CV-0746 (BKS/ML)
|
Signed March 2, 2023
Attorneys and Law Firms
WILLIAM M. DEAN, Plaintiff, Pro Se, 11-B-0996, Marcy
Correctional Facility, P.O. Box 3600, Marcy, NY 13403.
AIMEE COWAN, ESQ., Ass't Attorney General, HON.
LETITIA JAMES, New York State Attorney General,
Attorney for Defendants, The Capitol, Albany, NY 12224.
DECISION AND ORDER
BRENDA K. SANNES, Chief United States District Judge
I. INTRODUCTION
*1 Plaintiff William Dean commenced this action pursuant
to 42 U.S.C. § 1983 (“Section 1983”) by filing a pro
se civil rights complaint together with an application for
leave to proceed in forma pauperis (“IFP”) and a motion
for preliminary injunctive relief. Dkt. No. 1 (“Compl.”);
Dkt. No. 6 (“IFP Application”); Dkt. No. 4 (“Preliminary
Injunction Motion”). 1 By Decision and Order entered on
September 10, 2022, this Court granted plaintiff's IFP
Application, and following review of the complaint pursuant
to 28 U.S.C. § 1915(e)(2)(B) and 28 U.S.C. § 1915A(b),
dismissed several claims and defendants from this action, and
found that plaintiff's First Amendment mail tampering claims
against defendants Debejian, Sheehan, and Leone survived
sua sponte review and required a response. Dkt. No. 10
(“September 2022 Order”). The Court also directed these
defendants to respond to plaintiff's Preliminary injunction
Motion within thirty (30) days of service. Id. at 28.
Thereafter, counsel appeared on behalf of defendants
Debejian, Sheehan, and Leone, and plaintiff filed a motion
for default judgment as well as discovery requests. See
Dkt. Nos. 15 and 20 (“Notices of Appearance); Dkt. No.
25 (“Discovery Requests”); Dkt. No. 26 (“Motion for
Default Judgment”). By Text Order entered on December 9,
2022, Magistrate Judge Miroslav Lovric directed the Clerk
to strike the Discovery Requests from the docket based
on a determination that the filing violates N.D.N.Y. L.R.
26.2[,]” and advised plaintiff that the Court “does not accept
the filing of discovery materials, such as, Interrogatories,
Document Requests, Discovery Responses, etc., unless the
court specifically directs such documents be filed or when
submitted in support of a motion filed pursuant to Rule
37 of the Federal Rules of Civil Procedure.” Dkt. No.
27 (“Discovery Order”). Days later, counsel answered the
complaint on behalf of defendants Debejian, Sheehan, and
Leone, and a Mandatory Pretrial Discovery and Scheduling
Order was issued. Dkt. No. 28 (“Answer”); Dkt. No. 30
(“Scheduling Order”).
On December 19, 2022, the Court received a letter request
from plaintiff to amend and supplement his complaint,
together with a proposed amended and supplemental
complaint. Dkt. No. 32 (“Letter Request to Amend”); Dkt.
No. 32-1 (“Am. Compl.”).
By Decision and Order entered on December 22, 2022,
the Court denied the Preliminary injunction Motion without
prejudice and denied the Motion for Default Judgment. Dkt.
No. 33 (“December 2022 Order”).
Presently before the Court are the following: (1) plaintiff's
Letter Request to Amend and proposed amended and
supplemental complaint, Dkt. No. 32; (2) plaintiff's appeal of
a portion of the Scheduling Order, Dkt. No. 34 (“Appeal of
the Scheduling Order”); (3) counsel's letter request that the
Court review plaintiff's proposed amended and supplemental
complaint in accordance with 28 U.S.C. § 1915(e)(2)(B)
and 28 U.S.C. § 1915A(b), Dkt. No. 36 (“Counsel's Letter
Regarding the Amended Complaint”); and (4) plaintiff's
motion for reconsideration of the December 2022 Order, Dkt.
No. 38 (“Motion for Reconsideration”).
*2 Counsel has opposed plaintiff's Appeal of the Scheduling
Order and Motion for Reconsideration. Dkt. Nos. 39, 42.
II. PLAINTIFF'S LETTER REQUEST TO AMEND
Rule 15(a) of the Federal Rules of Civil Procedure allows a
party to amend its pleading “once as a matter of course within:
(A) 21 days after serving it, or (B) if the pleading is one to
which a responsive pleading is required, 21 days after service
of a responsive pleading or 21 days after service of a motion
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under Rule 12(b), (e), or (f), whichever is earlier.” Fed. R. Civ.
P. 15(a)(1). “In all other cases, a party may amend its pleading
only with the opposing party's written consent or the court's
leave[, and] [t]he court should freely give leave when justice
so requires.” Fed. R. Civ. P. 15(a).
Rule 15(d) of the Federal Rules of Civil Procedure
allows a party, “[o]n motion and reasonable notice, ... to
serve a supplemental pleading setting out any transaction,
occurrence, or event that happened after the date of the
pleading to be supplemented.” Fed. R. Civ. P. 15(d). A party
may supplement to include subsequent occurrences “absent
prejudice to the nonmoving party.” Albrecht v. Long Island
R.R., 134 F.R.D. 40, 41 (E.D.N.Y. 1991). “It is also proper to
permit the filing of a supplemental pleading to add additional
parties.” Tobin v. Rell, No. 3:05-CV-1079, 2007 WL 1520111,
at *2 (D. Conn. May 18, 2007) (citing Griffin v. County School
Bd. of Prince Edward County, 377 U.S. 218, 227 (1964)). In
the case of proposed amendments where new defendants are
to be added, the Court must also look to Rule 21 of the Federal
Rules of Civil Procedure, which states that a party may be
added to an action “at any time, on just terms.” Fed. R. Civ.
P. 21.
The standard for a motion to supplement is the same as for
a motion to amend the pleadings under Fed. R. Civ. P. 15(a).
Klos v. Haskell, 835 F. Supp. 710, 715 (W.D.N.Y. 1993)
(Fisher, M.J.), adopted by 835 F. Supp. at 713 (W.D.N.Y.
1993) (Telesca, D.J.). Leave to amend should be given “absent
evidence of undue delay, bad faith or dilatory motive on the
part of the movant, undue prejudice to the opposing party,
or futility.” Monahan v. N.Y.C. Dep't of Corr., 214 F.3d 275,
283 (2d Cir. 2000); see also Couloute v. Ryncarz, No. 11-
CV-5986, 2012 WL 541089, at *3 (S.D.N.Y. Feb. 17, 2012)
(quoting Monahan, 214 F.3d at 283). The decision to grant or
deny a motion to amend or supplement is committed to the
sound discretion of the trial court and the court's decision is
not subject to review on appeal except for abuse of discretion.
Nettis v. Levitt, 241 F.3d 186, 192 (2d Cir. 2001); Fielding v.
Tollaksen, 510 F.3d 175, 179 (2d Cir. 2007). 2
*3 Counsel concedes that plaintiff's proposed amended and
supplemental complaint was filed as of right, and has not
raised any objection to the manner in which the submission
was presented to the Court. See Dkt. No. 36. Accordingly,
plaintiff's Letter Request to Amend is granted insofar as
plaintiff wishes for the Court to consider his proposed
amended and supplemental complaint as the operative
pleading. The Clerk is directed to file the proposed amended
and supplemental complaint as the amended complaint, which
the Court must now review for sufficiency in accordance
with 28 U.S.C. § 1915(e)(2)(B) and 28 U.S.C. § 1915A(b).
Counsel's Letter Regarding the Amended Complaint is
granted in this regard.
III. SUFFICIENCY OF THE AMENDED
COMPLAINT
A. The Complaint and September 2022 Order
In his original complaint, plaintiff asserted claims based on
alleged wrongdoing that occurred during his confinement at
Marcy Correctional Facility (“Marcy C.F.”). See generally
Compl. The complaint named the following officials
as defendants: (1) Cathy Sheehan, the Deputy Acting
Commissioner and Counsel for the New York State
Department of Corrections and Community Supervision
(“DOCCS”); (2) C.F. Leone, the Supervising Librarian and
Law Library Coordinator for DOCCS; (3) former Marcy C.F.
Deputy Superintendent of Programs (“DSP”) Debejian; (4)
Patrick Reardon, the Superintendent of Marcy C.F.; (5) P.
Dormey, Counsel for DOCCS; (6) Pat Collver, Acting DSP
at Marcy C.F.; (7) Jeffrey McKoy, Deputy Commissioner
of Programs; (8) DOCCS Commissioner Annucci; (9) New
York State Attorney General Letitia James; and (10) DOCCS.
Compl. at 1-5.
The complaint was construed to assert the following claims
against the named defendants: (1) First Amendment access-
to-courts claims; (2) First Amendment mail tampering claims;
and (3) Fourteenth Amendment equal protection claims.
September 2022 Order at 12.
After reviewing the complaint pursuant to 28 U.S.C. §
1915(e)(2)(B) and 28 U.S.C. § 1915A, the Court found
that only plaintiff's First Amendment mail tampering claims
against defendants Debejian, Sheehan, and Leone survived
sua sponte review. See September 2022 Order at 27. Plaintiff's
Section 1983 claims for money damages against DOCCS
were dismissed with prejudice pursuant to 28 U.S.C. §
1915(e)(2)(B) and 28 U.S.C. § 1915A(b) as barred by
the Eleventh Amendment, and his remaining claims were
dismissed without prejudice for failure to state a claim upon
which relief may be granted. Id.
B. Overview of the Amended Complaint
Because plaintiff is proceeding in forma pauperis and is
an inmate suing government employees, his amended and
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supplemental complaint must be reviewed in accordance with
28 U.S.C. § 1915(e)(2)(B) and 28 U.S.C. § 1915A(b). The
legal standard governing the dismissal of a pleading for
failure to state a claim pursuant to 28 U.S.C. § 1915(e)(2)
(B) and 28 U.S.C. § 1915A(b) was discussed at length in
the September 2022 Order and it will not be restated in this
Decision and Order. See September 2022 Order at 2-4.
As with the original complaint, plaintiff's amended and
supplemental complaint alleges wrongdoing associated with
the conditions of his confinement at Marcy C.F., and reasserts
Section 1983 claims against the same ten defendants. See
generally, Am. Compl. Although the 156-page pleading,
which is both rambling and at times repetitive, includes
each of the allegations set forth in the original complaint, it
also includes several new allegations regarding state court
actions that plaintiff has initiated since 2011 in furtherance
of his effort to overturn his criminal conviction, as well as
allegations regarding how those actions were impacted by
the denials of copying and mailing services that plaintiff
experienced. See Am. Compl., ¶¶ 1-86, 96, 101, 260-275,
377, 413-429, 442. The amended complaint also contains
supplemental allegations of mail tampering since the last
alleged incident of wrongdoing discussed in the original
complaint. Id., ¶¶ 87-171.
*4 Liberally construed, the amended complaint asserts the
following claims against DOCCS and the named defendants
in their individual and official capacities: 3 (1) First
Amendment interference with access-to-courts claims; (2)
First Amendment mail tampering claims; and (3) Fourteenth
Amendment equal protection claims. 4
*5 Plaintiff seeks money damages and injunctive relief. Am.
Compl. at 154-55. For a more complete statement of plaintiff's
claims, reference is made to the amended complaint.
C. Analysis
1. Eleventh Amendment Immunity
The Eleventh Amendment has long been construed as barring
a citizen from bringing a suit against his or her own state in
federal court, under the fundamental principle of “sovereign
immunity.” U.S. Const. amend. XI (“The Judicial power of
the United States shall not be construed to extend to any suit
in law or equity, commenced or prosecuted against one of
the United States by Citizens of another State, or by Citizens
or Subjects of any Foreign State.”); Hans v. Louisiana,
134 U.S. 1, 10-21 (1890); Idaho v. Coeur d'Alene Tribe
of Idaho, 521 U.S. 261, 267 (1997); Pennhurst State Sch.
& Hosp. v. Halderman, 465 U.S. 89, 100 (1984). Eleventh
Amendment immunity is lost only if Congress unequivocally
abrogates states’ immunity or a state expressly consents
to suit. Gollomp v. Spitzer, 568 F.3d 355, 365-66 (2d Cir.
2009). It is well-settled that Congress did not abrogate states’
immunity through Section 1983, see Quern v. Jordan, 440
U.S. 332, 343-45 (1979), and that New York State has
not waived its immunity from suit on the claims asserted
in plaintiff's amended complaint. See generally Trotman v.
Palisades Interstate Park Comm'n, 557 F.2d 35, 38-40 (2d
Cir. 1977); Dawkins v. State of New York, No. 5:93-CV-1298
(RSP/GJD), 1996 WL 156764 at *2 (N.D.N.Y. 1996).
As noted in the September 2022 Order, “[s]tate immunity
extends not only to the states, but also to state agencies.” See
September 2022 Order at 14 (citations omitted). Furthermore,
the Eleventh Amendment bars suits for damages against state
officials acting in their official capacities. See Kentucky v.
Graham, 473 U.S. 159, 169 (1985) (a claim for damages
against state officials in their official capacity is considered
to be a claim against the State and is therefore barred by
the Eleventh Amendment); Ying Jing Gan v. City of New
York, 996 F.2d 522, 529 (2d Cir. 1993) (“To the extent that
a state official is sued for damages in his official capacity,
such a suit is deemed to be a suit against the state, and
the official is entitled to invoke the Eleventh Amendment
immunity belonging to the state.”); Severino v. Negron,
996 F.2d 1439, 1441 (2d Cir. 1993) (“[I]t is clear that the
Eleventh Amendment does not permit suit [under Section
1983] for money damages against state officials in their
official capacities.”)
Accordingly, insofar as plaintiff seeks monetary damages
under Section 1983 against DOCCS or any other defendant
in his or her official capacity, such claims are dismissed
with prejudice pursuant to 28 U.S.C. § 1915(e)(2)(B) and 28
U.S.C. § 1915A(b) as barred by the Eleventh Amendment. 5
2. Defendant James
*6 “Dismissal is appropriate where a defendant is listed in
the caption, but the body of the complaint fails to indicate
what the defendant did to the plaintiff.” Cipriani v. Buffardi,
No. 9:06-CV-889 (GTS/DRH), 2007 WL 607341, at *1
(N.D.N.Y. Feb. 20, 2007) (citing Gonzalez v. City of New York,
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No. 97-CV-2246, 1998 WL 382055, at *2 (S.D.N.Y. July 9,
1998)); see also Crown v. Wagenstein, No. 96-CV-3895, 1998
WL 118169, at *1 (S.D.N.Y. Mar. 16, 1998) (mere inclusion
of warden's name in complaint insufficient to allege personal
involvement); Taylor v. City of New York, 953 F. Supp. 95, 99
(S.D.N.Y. 1997) (same).
Here, plaintiff names New York State Attorney General
Letitia James as a defendant, but the body of the amended
complaint lacks any allegations of wrongdoing by this
official. See generally, Am. Compl. Furthermore, the Court
has no basis to plausibly infer that this official, who is not
employed by the New York State Department of Corrections
and Community Supervision, possessed the authority to
address, in any respect, the alleged wrongdoing detailed
in the amended complaint. See, e.g., Kregler v. City of
New York, 821 F. Supp. 2d 651, 658-59 (S.D.N.Y. 2011)
(“Because it is undisputed that Schwam and Keenaghan were
subordinates and thus lacked the authority to prevent the
alleged constitutional violation caused by their supervisor,
Kregler's claim of deliberate indifference fails as a matter
of law.”); Kuolkina v. City of New York, 559 F. Supp. 2d
300, 317 (S.D.N.Y. 2008) (dismissing claims against state
officials who “did not have the authority to take action with
respect to any constitutional violation plaintiffs may have
suffered” (collecting cases)).
For these reasons, plaintiff's Section 1983 claims against
defendant James are dismissed pursuant to 28 U.S.C. §
1915(e)(2)(B) and 28 U.S.C. § 1915A(b) for failure to state a
claim upon which relief may be granted.
3. Access-to-Courts Claims
The legal standard governing First Amendment access-to-
courts claims was discussed at length in the September 2022
Order, and will not be restated herein. See September 2022
Order at 16-19.
In light of plaintiff's new allegations regarding state court
actions that were dismissed in 2021, and complications he
has experienced in other proceedings that seek to obtain
evidence he believes is necessary to challenge his criminal
conviction, and mindful of the Second Circuit's direction that
a pro se plaintiff's pleadings must be liberally construed,
see e.g. Sealed Plaintiff v. Sealed Defendant, 537 F.3d 185,
191 (2d Cir. 2008), the Court finds that plaintiff's access-to-
courts claims against defendants Debejian, Sheehan, Leone,
McKoy, and Collver survive sua sponte review and require a
response insofar as these claims are based on these officials
denying plaintiff access to copies and/or mail to which he
was allegedly entitled. In so ruling, the Court expresses no
opinion as to whether these claims can withstand a properly
filed dispositive motion. 6
*7 The Court, however, reaches a different conclusion with
respect to defendants Annucci, Dormey, and Reardon.
(a) Defendant Annucci
The amended complaint alleges that defendant Annucci (1) is
responsible for overseeing each DOCCS correctional facility,
(2) “has a[n] inherent and ethical duty to see that any and
all ... unlawful or unconstitutional practices/violations are
brought to his direct attention[,]” (3) has “direct knowledge”
of “problems” plaintiff has experienced with obtaining legal
copies for court filings through “being provided several
copies of letters and complaints sent to him ... since on or
about April 17, 2021[,]” and (4) has failed to investigate,
“respond[ ] or correct[ ] the problems for more than 17
months[.]” Am. Compl. at 4-8.
The amended complaint, however, also alleges that defendant
Sheehan received the same letters and complaints as
defendant Annucci regarding plaintiff's inability to obtain
legal copies for court filings, and has “correspond[ed]” with
plaintiff regarding his copying and mailing issues. Am.
Compl. at 9-10. The amended complaint further alleges that
on certain occasions after defendants Debejian and Collver
denied a request made by plaintiff for legal copies, these
officials advised plaintiff that “Albany counsel agreed” that
plaintiff was not entitled to his requested copies because
he “had advances in the excess of $20.00 on the books
already[.]” Id. at 15.
The law is well-settled that a senior-ranking official such as
the DOCCS Commissioner is entitled to delegate decision-
making authority over matters to other officials such as
the Deputy Commissioner and Counsel for DOCCS. See
Sealey v. Giltner, 116 F.3d 47, 51 (2d Cir. 1997) (finding no
personal involvement where DOCCS Commissioner referred
inmate's letters to subordinates); Amaker v. Goord, No. 98-
CV-3634, 2002 WL 523371, *16 (S.D.N.Y. Mar. 29, 2002)
(holding that sending letters to commissioner, which were
responded to by other prison officials, was insufficient to
establish supervisory liability); Walker v. Pataro, No. 99-
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CV-4607, 2002 WL 664040, at *12 (S.D.N.Y. Apr. 23, 2002)
(“[W]here a supervisory official like the Commissioner of
Corrections ... receives letters or similar complaints from
an inmate and does not personally respond, the supervisor
is not personally involved and hence not liable.... [T]he
Commissioner and individual prison Superintendents receive
innumerable letters and other forms of inmate complaints
and delegate subordinates to handle them ... Thus, if mere
receipt of a letter or similar complaint were enough, without
more, to constitute personal involvement, it would result in
liability merely for being a supervisor, which is contrary to
the black-letter law that § 1983 does not impose respondeat
superior liability.”). Furthermore, the Second Circuit recently
clarified that “there is no special rule for supervisory
liability.” Tangreti v. Bachmann, 983 F.3d 609, 618 (2d
Cir. 2020). Instead, “a plaintiff must plead and prove that
each Government-official defendant, through the official's
own individual actions, has violated the Constitution.’ ”
Id. (quoting Iqbal, 556 U.S. at 676); see also Polk Cnty.
v. Dodson, 454 U.S. 312, 325 (1981) (noting that a mere
“linkage” to the unlawful conduct through “the prison chain
of command” (i.e., under the doctrine of respondeat superior)
is insufficient to show his or her personal involvement in that
unlawful conduct); Richardson v. Goord, 347 F.3d 431, 435
(2d Cir. 2003). Thus, the alleged failure by defendant Annucci
to respond to plaintiff's letters is not enough to plausibly
suggest that he was personally involved in the alleged
wrongdoing. See, e.g., Braxton v. Bruen, No. 9:17-CV-1346
(BKS/ML), 2021 WL 4950257, at *6 (N.D.N.Y. Oct. 25,
2021) (“Even before Tangreti, receipt by a supervisory
official of a letter from an inmate, without more, has been
insufficient to establish the official's personal involvement
in a § 1983 constitutional claim.” (collecting cases)); Quirk
v. DiFiore, No. 20-CV-5027, 2022 WL 268976, at *3
(S.D.N.Y. Jan. 28, 2022) (dismissing Section 1983 claim
against Chief Judge DiFiore where complaint alleged only
that this official failed to respond to a letter sent to her by the
plaintiff on one occasion, which is insufficient to plausibly
suggest her personal involvement in the alleged constitutional
violation); Tripathy v. Schneider, No. 21-CV-6392, 2021
WL 4504461, at *3 (W.D.N.Y. Oct. 1, 2021) (dismissing
Section 1983 claim against Commissioner of New York State
Department of Corrections and Community Supervision and
Governor of New York where complaint alleged only that
these officials “failed to respond” to plaintiff's complaints
of wrongdoing, noting that “the failure to respond to
letters protesting unconstitutional actions and/or requesting
an investigation is, without more, insufficient to establish
personal involvement”); Peck v. Cnty. of Onondaga, New
York, No. 5:21-CV-651, 2021 WL 3710546, at *10 (N.D.N.Y.
Aug. 20, 2021) (“Peck's allegation that Conway failed to
remedy the discriminatory conduct against her at the Sheriff's
Office after June 18, 2020 essentially argues that he was
deliberately indifferent to an ongoing violation.... Yet Tangreti
demands more.... Plaintiff must allege that Conway actively
participated in a constitutional violation, and this allegation
does not further that end.”), reconsideration denied, 563 F.
Supp. 3d 18 (N.D.N.Y. 2021); Brown v. Montone, No. 17-
CV-4618, 2018 WL 2976023, at *4 (S.D.N.Y. June 13, 2018)
(“It is well-established that an allegation that an official
ignored a prisoner's letter of protest and request for an
investigation of allegations made therein is insufficient to
hold that official liable for the alleged violations.”) (quoting
Allah v. Annucci, No. 16-CV-1841, 2017 WL 3972517, at *7
(S.D.N.Y. Sept. 7, 2017)); cf. McCrary v. Marks, 836 Fed.
App'x 73, 74 (2d Cir. 2021) (explaining that where “the most
[plaintiff] alleged is that [defendant] received his letter and
directed someone at the [agency] to respond to it[, t]hat is
clearly not enough to state a claim”).
*8 Accordingly, plaintiff's access-to-courts claim against
defendant Annucci is dismissed pursuant to 28 U.S.C. §
1915(e)(2)(B) and 28 U.S.C. § 1915A(b) for failure to state a
claim upon which relief may be granted.
(b) Defendant Dormey
The amended complaint alleges that defendant Dormey has
had “direct ... contact ... with [plaintiff's] ... immediate family
via email in response to their complaints on [plaintiff's]
behalf” regarding copying and mailing issues. Am. Compl.
at 11. The amended complaint lacks any allegations
regarding what plaintiff's family members communicated to
defendant Dormey, what he said in response, or when these
communications occurred. Furthermore, even assuming these
allegations plausibly suggest that defendant Dormey was
made aware of plaintiff's issues with access to legal copies
and mail at some point, awareness alone is not enough to
plausibly suggest that this official was personally involved
in the alleged deprivations that plaintiff suffered, particularly
because at the time of the alleged violations, plaintiff alleges
that other “Albany” officials considered and dismissed his
complaints. See, e.g., Johnson v. Owens, No. 9:20-CV-0982
(LEK/CFH), 2022 WL 958127, at *7 (N.D.N.Y. Mar. 30,
2022) (“[S]imply stating that an official was, at some point,
made aware of violations, without more, is not sufficient
to plausibly allege personal involvement.” (citing Gawlik v.
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Semple, No. 20-CV-564, 2021 WL 4430601, at *13 (D. Conn.
Sept. 27, 2021) (“Gawlik alleges only that those defendants
were made aware of the confiscation of his religious items
after the fact and failed to take action.... [T]hose allegations
are insufficient—in the aftermath of Tangreti—to support a
claim for money damages against supervisory officials.”)));
Fabrizio v. Smith, No. 9:20-CV-0011 (GTS/ML), 2021 WL
2211206, at *10 (N.D.N.Y. Mar. 10, 2021) (“In the Complaint,
Plaintiff alleged that Mauro and Smith were personally
involved because they failed to remedy ongoing First
Amendment violations after becoming aware of the retaliation
through grievances and appeals.... In light of Tangreti,
Plaintiff's attempt to plead personal involvement based upon
the denial of a grievance and/or appeals, lacks merit because
it does not plausibly suggest ‘[t]he factors necessary to
establish’ a First Amendment retaliation claim.”), report and
recommendation adopted by 2021 WL 2211023 (N.D.N.Y.
June 1, 2021); Smart v. Annucci, No. 19-CV-7908, 2021 WL
260105, at *5 (S.D.N.Y. Jan. 26, 2021) (“That [Defendants]
failed to act on Plaintiff's complaints ... cannot support
the inference that these Defendants, through ‘[their] own
individual actions, [have] violated the Constitution.’ ”);
Sealey, 116 F.3d at 51.
Accordingly, plaintiff's access-to-courts claim against
defendant Dormey is dismissed pursuant to 28 U.S.C. §
1915(e)(2)(B) and 28 U.S.C. § 1915A(b) for failure to state a
claim upon which relief may be granted.
(c) Defendant Reardon
The amended complaint alleges that plaintiff complained
to defendant Reardon about his inability to obtain legal
copies on and after July 22, 2021, and filed a grievance
“directed to him on or about September 29, 2021[,]”
and defendant Reardon simply responded by “assigning
[plaintiff's] grievance [and] letters to the DSP, IGP, and IRC.”
Am. Compl. at 13-14.
*9 As with plaintiff's claim against defendant Annucci,
defendant Reardon's alleged decision to defer to other
officials to address plaintiff's complaints is not enough to
plausibly suggest that he was personally involved in the
alleged wrongdoing, particularly because plaintiff alleges
that “Albany counsel” was involved in at least some of the
determinations that plaintiff was not entitled to certain copies.
See Sealey, 116 F.3d at 51; Perez v. Annucci, No. 20-CV-8069,
2021 WL 5568005, at *4 (S.D.N.Y. Nov. 29, 2021) (“Even
assuming the signature on the grievance denial belongs to
Supt. Griffin, the denial itself merely reflects that Griffin
deferred his decision to the results of the investigation of a
medical professional, and thus does not establish personal
involvement in the denial of plaintiff's medical care.”), appeal
dismissed (Apr. 1, 2022); Vega v. Artus, 610 F. Supp. 2d 185,
199 (N.D.N.Y. 2009) (stating that facility superintendent's act
of “referring [plaintiff's] letters to staff for investigation is not
sufficient to establish [his] personal involvement”); Farid v.
Goord, 200 F. Supp. 2d 220, 235 (W.D.N.Y. 2002) (dismissing
claims of personal involvement against supervisory official
who merely sent grievances “down the chain of command for
investigation”).
Accordingly, plaintiff's access-to-courts claim against
defendant Reardon is dismissed pursuant to 28 U.S.C. §
1915(e)(2)(B) and 28 U.S.C. § 1915A(b) for failure to state a
claim upon which relief may be granted.
4. Mail Tampering Claims
The legal standard governing First Amendment mail
tampering claims was discussed at length in the September
2022 Order, and will not be restated herein. See September
2022 Order at 16-19.
Mindful of the Second Circuit's direction that a pro se
plaintiff's pleadings must be liberally construed, see e.g.
Sealed Plaintiff v. Sealed Defendant, 537 F.3d 185, 191 (2d
Cir. 2008), the Court finds that plaintiff's mail tampering
claims against defendants Debejian, Sheehan, Leone, McKoy,
and Collver survive sua sponte review and require a response.
In so ruling, the Court expresses no opinion as to whether
these claims can withstand a properly filed dispositive
motion.
For the same reasons discussed above in Section III.C.3,
plaintiff's mail tampering claims against defendants Annucci,
Dormey, and Reardon are dismissed pursuant to 28 U.S.C. §
1915(e)(2)(B) and 28 U.S.C. § 1915A(b) for failure to state a
claim upon which relief may be granted.
5. Equal Protection Claims
The legal standard governing Fourteenth Amendment equal
protection claims was discussed at length in the September
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2022 Order, and will not be restated herein. See September
2022 Order at 23-24.
Although the amended complaint differs from the original
complaint in that plaintiff now alleges that he suffers from
multiple disabilities, see Am. Compl. at 85, the amended
complaint is devoid of any allegations which plausibly
suggest that plaintiff was intentionally treated differently
from others similarly situated, with no rational basis for
the difference in treatment. See Village of Willowbrook, 528
U.S. at 564 (2000); DeMuria, 328 F.3d at 706. In fact, as
with the original complaint, the amended complaint fails to
identify any individuals treated differently than plaintiff under
a similar situation.
Stated differently, the amended complaint lacks any
allegations which plausibly suggest that (1) other inmates
with insufficient funds for copying services and postage
have been allowed to make copies of, or mail, certain types
of legal documents that plaintiff has not been allowed to
copy or mail, and/or (2) plaintiff has been denied copy and
mailing services because of his disability. Instead, plaintiff's
allegations that he was denied “equal protection” are entirely
conclusory, which is not enough to survive sua sponte review.
See Iqbal, 556 U.S. at 678 (concluding that a pleading
that only “tenders naked assertions devoid of further factual
enhancement” will not survive sua sponte review) (internal
quotations and alterations omitted); Twombly, 550 U.S. at 555
(“[A] plaintiff's obligation ... requires more than labels and
conclusions, and a formulaic recitation of the elements of a
cause of action will not do.”); Thomas v. Pingotti, No. 9:17-
CV-0300 (GTS/DEP), 2017 WL 3913018, at *7 (N.D.N.Y.
Sept. 6, 2017) (“Conclusory allegations of disparate treatment
or a plaintiff's personal belief of discriminatory intent are
patently insufficient to plead a valid claim under the Equal
Protection clause.”).
*10 Accordingly, plaintiff's equal protection claims are once
again dismissed without prejudice pursuant to 28 U.S.C. §
1915(e)(2)(B)(ii) and 28 U.S.C. § 1915A(b)(1) for failure to
state a claim against them upon which relief may be granted.
IV. MOTION FOR RECONSIDERATION
A court may justifiably reconsider its previous ruling if: (1)
there is an intervening change in the controlling law; (2) new
evidence not previously available comes to light; or (3) it
becomes necessary to remedy a clear error of law or to prevent
manifest injustice. Delaney v. Selsky, 899 F. Supp. 923, 925
(N.D.N.Y. 1995) (McAvoy, C.J.) (citing Doe v. New York City
Dep't of Soc. Servs., 709 F.2d 782, 789 (2d Cir. 1983)). The
standard for granting a motion for reconsideration is strict.
Shrader v. CSX Transportation, Inc., 70 F.3d 255, 257 (2d Cir.
1995). A motion for reconsideration “should not be granted
where the moving party seeks solely to relitigate an issue
already decided.” Id. 7 Thus, a motion for reconsideration is
not to be used for “presenting the case under new theories,
securing a rehearing on the merits, or otherwise taking a
‘second bite at the apple.’ ” Sequa Corp. v. GBJ Corp., 156
F.3d 136, 144 (2d Cir. 1998).
Here, plaintiff seeks reconsideration of the December 2022
Order, apparently based on his belief that the rulings in that
Order were legally incorrect in light of documents plaintiff
had and had not received as of the date his motion was filed.
See Dkt. No. 33. 8
After thoroughly reviewing plaintiff's motion and affording it
due consideration in light of his status as a pro se litigant, the
Court finds that plaintiff presents no basis for reconsideration
of the December 2022 Order. Based upon a review of the
relevant law and its application to the facts of this case, the
Court concludes that its previous decision was legally correct
and did not work a manifest injustice. Thus, plaintiff's motion
for reconsideration of the December 2022 Order is denied in
its entirety.
V. APPEAL OF THE SCHEDULING ORDER
“A district court judge reviewing a magistrate judge's non-
dispositive ruling may not modify or set aside any part of
that order unless it is clearly erroneous or contrary to law.”
Gregory v. Stewart's Shops Corp., No. 14-CV-0033, 2016 WL
5409326, at *2 (N.D.N.Y. Sept. 28, 2016) (citing Labarge v.
Chase Manhattan Bank, No. 95-CV-173, 1997 WL 583122,
at *1 (N.D.N.Y. Sept. 3, 1997)); 28 U.S.C. § 636(b)(1)(A);
Fed. R. Civ. P. 72(a). “A finding is clearly erroneous if the
reviewing court on the entire evidence is left with the definite
and firm conviction that a mistake has been committed.”
Malowsky v. Schmidt, No. 15-CV-666, 2017 WL 5496068, at
*2 (N.D.N.Y. Jan. 9, 2017). “An order is contrary to law when
it fails to apply or misapplies relevant statutes, case law, or
rules of procedure.” Id. at *2; see also In re Hulley Enters.
Ltd., 400 F. Supp. 3d 62, 70 (S.D.N.Y. 2019); E.E.O.C. v. First
Wireless Grp., Inc., 225 F.R.D. 404, 405 (E.D.N.Y. 2004).
As such, a Magistrate Judge's order is clearly erroneous and
contrary to law where the Magistrate applies an incorrect legal
standard. United States v. Bonanno Organized Crime Family
of La Cosa Nostra, 119 F.R.D. 625, 626 (E.D.N.Y. 1988).
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*11 Plaintiff appeals the Scheduling Order insofar as it (1)
prohibits him from serving counsel with written discovery
demands until sixty days after entry of the Scheduling Order,
and (2) limits defendants to providing only 300 free pages
of documents in the mandatory disclosures and requires that
plaintiff prepay for copies of documents in excess of this
amount. See Appeal of the Scheduling Order.
Insofar as plaintiff challenges the timing of service of written
discovery, more than sixty (60) days has passed since the entry
of the Scheduling Order, and the written discovery period is
therefore now open. As a result, plaintiff's challenge to this
portion of the Scheduling Order is denied as moot.
Insofar as plaintiff challenges the provision of the Scheduling
Order that requires him to prepay for documents in excess of
300 pages that may be in counsel's possession, the Scheduling
Order requires defendants to provide plaintiff with “the
documents in the care, custody, or control of any defendant
or the defendant's employer if the employer is a public entity
such as the New York State Department of Corrections and
Community Supervision (DOCCS) related to the claims or
defenses in the case[,]” provided that the total number of
pages of the copies being produced does not exceed 300
pages. See Scheduling Order at 2-3. The Scheduling Order
further states as follows:
If ... the total number of pages
of the copies being produced by
either plaintiff(s) or defendant(s)
exceeds 300, the producing party may
make such documents available to
the discovering party for inspection
upon reasonable notice. If, after
such inspection, the discovering party
wishes to obtain copies of any such
documents, copies of the first 300
pages requested shall be provided at
the expense of the producing party.
Any pages in excess of 300 shall be
produced only upon the prepayment by
the discovering party of the costs of
reproduction of any pages beyond 300
at the rate of $.25 per page.
These requirements and restrictions are neither clearly
erroneous nor contrary to law. Indeed, contrary to plaintiff's
contention, the Scheduling Order in no way prevents him
from reviewing more than 300 pages of documents in
defendants’ possession related to the claims or defenses in this
case. Thus, this aspect of plaintiff's appeal is also denied.
If, following this Decision and Order, defendants’ counsel
represents to plaintiff that counsel is in possession of more
than 300 pages of documents related to the claims or defenses
in the case, and plaintiff determines, after reviewing these
documents, that he does not possess, and therefore is in need
of, more than 300 pages of these documents, he may bring the
issue to the Court's attention, at which time plaintiff's concern
will be ripe for consideration, and may warrant a modification
to the free page limit.
VI. CONCLUSION
WHEREFORE, it is hereby
ORDERED that plaintiff's Letter Request to Amend (Dkt.
No. 32) is GRANTED insofar as plaintiff wishes for the
Court to consider his proposed amended and supplemental
complaint (Dkt. No. 32-1) as the operative pleading. The
Clerk is directed to docket the proposed amended and
supplemental complaint (Dkt. No. 32-1) as the amended
complaint, which is accepted for filing and is the operative
pleading; and it is further
ORDERED that Counsel's Letter Regarding the Amended
Complaint (Dkt. No. 36) is GRANTED insofar as counsel
sought the Court's review plaintiff's proposed amended and
supplemental complaint in accordance with 28 U.S.C. §
1915(e)(2)(B) and 28 U.S.C. § 1915A(b); and it is further
*12 ORDERED that upon review of the amended
complaint in accordance with 28 U.S.C. § 1915(e)(2)(B)
and 28 U.S.C. § 1915A(b), the following claims SURVIVE
sua sponte review and require a response: (1) plaintiff's
First Amendment access-to-courts claims against defendants
Debejian, Sheehan, Leone, McKoy, and Collver based on
these officials allegedly denying him access to copies
and/or mail to which he was entitled; and (2) plaintiff's
First Amendment mail tampering claims against defendants
Debejian, Sheehan, Leone, McKoy, and Collver; and it is
further
ORDERED that plaintiff's Section 1983 claims against
DOCCS and each named defendants in his or her official
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capacity are DISMISSED with prejudice pursuant to 28
U.S.C. § 1915(e)(2)(B) and 28 U.S.C. § 1915A(b) for failure
to state a claim upon which relief may be granted and as
barred by the Eleventh Amendment; 9 and it is further
ORDERED that all remaining Section 1983 claims are
DISMISSED pursuant to 28 U.S.C. § 1915(e)(2)(B) and 28
U.S.C. § 1915A(b) for failure to state a claim upon which
relief may be granted; and it is further
ORDERED that the Clerk shall TERMINATE all
defendants other than Debejian, Sheehan, Leone, McKoy, and
Collver from the docket; and it is further
ORDERED that upon receipt from plaintiff of the documents
required for service, the Clerk shall issue summonses and
forward them, along with copies of the amended complaint, to
the United States Marshal for service on defendants McKoy
and Collver; 10 and it is further
ORDERED that upon the completion of service on
defendants McKoy and Collver, a response to plaintiff's
amended complaint be filed by these defendants and
defendants Debejian, Sheehan, and Leone, or their counsel,
as provided for in the Federal Rules of Civil Procedure; and
it is further
ORDERED that plaintiff's motion for reconsideration of the
December 2022 Order (Dkt. No. 38) is DENIED as set forth
above; and it is further
ORDERED that plaintiff's appeal of a portion of the
Scheduling Order (Dkt. No. 34) is DENIED as set forth
above; and it is further
ORDERED that all pleadings, motions and other documents
relating to this action must bear the case number assigned
to this action and be filed with the Clerk of the United
States District Court, Northern District of New York, 7th
Floor, Federal Building, 100 S. Clinton St., Syracuse, New
York 13261-7367. Plaintiff must comply with requests by
the Clerk's Office for any documents that are necessary to
maintain this action. All parties must comply with Local Rule
7.1 of the Northern District of New York in filing motions;
motions will be decided on submitted papers, without oral
argument, unless otherwise ordered by this Court. Plaintiff is
also required to promptly notify the Clerk's Office and all
parties or their counsel, in writing, of any change in his
address; his failure to do so will result in the dismissal of
this action; and it is further
*13 ORDERED that the Clerk of the Court shall provide
plaintiff with copies of the unpublished decisions cited herein
in accordance with the Second Circuit decision in Lebron v.
Sanders, 557 F.3d 76 (2d Cir. 2009) (per curiam); and it is
further
ORDERED that the Clerk shall serve a copy of this Decision
and Order on the parties.
IT IS SO ORDERED.
All Citations
Not Reported in Fed. Supp., 2023 WL 2325074
Footnotes
1 By Order entered on July 14, 2022, plaintiff's initial application to proceed IFP was denied as incomplete and
the action was administratively closed. Dkt. No. 5. Thereafter, plaintiff filed his IFP Application and the inmate
authorization required in this District and the Clerk was directed to reopen this action and restore it to the
Court's active docket. See Dkt. Nos. 6, 7, 8.
2 The Local Rules of Practice of the Northern District of New York require that a motion to amend or supplement
be supported by a proposed pleading. N.D.N.Y.L.R. 7.1(a)(4). A plaintiff seeking to supplement a pleading
must submit a proposed pleading which is limited to “transactions or occurrences or events which have
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occurred since the date of the pleading that the party seeks to supplement,” and which contains paragraphs
numbered consecutively to the paragraphs contained in the pleading that it seeks to supplement. Id.
3 The amended complaint also identifies three officials that were allegedly involved in the identified wrongdoing,
who are not named as defendants based on plaintiff's alleged fear of retaliation. See Am. Compl. at 148-149.
While the Court is sympathetic to plaintiff's concerns, it is not for the Court to decide which officials should or
should not be named as defendants. See Levesque v. New York, No. 8:13-CV-825, 2014 WL 4437629, at *8
(N.D.N.Y. Sept. 8, 2014) (“The court cannot provide legal advice to a litigant.”). Since plaintiff acknowledges
not naming these three officials as defendants, the Court does not construe the amended complaint to assert
any claims against them. See Fed. R. Civ. P. 10(a) (“[T]he title of the complaint must name all the parties.”);
Abbas v. U.S., No. 10-CV-0141, 2014 WL 3858398, at *2 (W.D.N.Y. Aug. 1, 2014) (the failure to name a
party in the caption makes it “infeasible” for the Court to determine which of the individual officers mentioned
in the body of the complaint should be deemed to be defendants to which claims); Whitley v. Krinser, No. 06-
CV-0575, 2007 WL 2375814, at *1 (W.D.N.Y. Aug. 15, 2007) (“If people are not also named in the caption
of the [ ] complaint, they will not be defendants in the case.”).
4 The amended complaint also expressly alleges a due process violation, a violation of plaintiff's rights to a
fair trial, and purports to assert a conspiracy claim. See Am. Compl. at 151-52. Insofar as the amended
complaint attempts to assert a Fourteenth Amendment substantive due process claim based on plaintiff's
alleged inability to make legal copies and send outgoing legal mail and access the courts, for the reasons
discussed in the September 2022 Order, the Court once again finds that the First Amendment guides the
Court's analysis of this alleged wrongdoing. See September 2022 Order at 12 n.4. Insofar as the amended
complaint references a fair trial claim, the Court does not construe the pleading to assert any such claim
in light of the absence of any allegations which plausibly suggest that any of the named defendants played
any role in the criminal conviction that resulted in plaintiff's current confinement. See Kayo v. Mertz, 531
F. Supp. 3d 774, 800 (S.D.N.Y. 2021) (“The elements of a § 1983 fair trial claim are: ‘an (1) investigating
official (2) fabricates evidence (3) that is likely to influence a jury's decision, (4) forwards that information to
prosecutors, and (5) the plaintiff suffers a deprivation of liberty as a result.’ ”) (quoting Garnett v. Undercover
Officer C0039, 838 F.3d 265, 277 (2d Cir. 2016)). Finally, insofar as the amended complaint alleges that the
named defendants “conspired with the New York State Police” by denying him access to legal copies and
mail, plaintiff has failed to identify which officials he believes conspired to violate his constitutional rights, or
explain how. Thus, the Court declines to construe the amended complaint to assert any additional claims
under a conspiracy theory. See Ciambriello v. County of Nassau, 292 F.3d 307, 325 (2d Cir. 2002) (noting that
to state a claim for conspiracy under Section 1983, the complaint must allege that (1) an agreement existed
between two or more state actors to act in concert to inflict an unconstitutional injury on the plaintiff, and (2)
an overt act was committed in furtherance of that goal); see also Sommer v. Dixon, 709 F.2d 173, 175 (2d
Cir. 1983) (holding that “[a] complaint containing only conclusory, vague, or general allegations of conspiracy
to deprive a person of constitutional rights cannot withstand a motion to dismiss”); Brown v. City of Oneonta,
106 F.3d 1125, 1133 (2d Cir. 1997) (holding that complaints containing only conclusory, vague or general
allegations of a conspiracy to deprive a person of constitutional rights do not state a claim for relief). The
Court would add only that because an alleged conspiracy to violate an individual's rights under Section 1983
is not an independent claim, but rather a theory of liability, plaintiff need not prove a conspiracy to succeed
on any of his underlying claims that survive sua sponte review herein. See Clark v. City of Oswego, No. 5:03-
CV-202(NAM/DEP), 2007 WL 925724, at *7 (N.D.N.Y. Mar. 26, 2007) (“A plaintiff asserting a Section 1983
conspiracy claim must first prove a violation of the underlying constitutional right, ..., or in other words, a civil
conspiracy claim do[es] not set forth an independent cause of action but rather is sustainable only after an
underlying tort claim has been established[.]” (internal quotation marks and citations omitted)).
5 In Ex Parte Young, 209 U.S. 123 (1908), the Supreme Court established an exception to state sovereign
immunity in federal actions where an individual brings an action seeking injunctive relief against a state official
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for an ongoing violation of law or the Constitution. Under the doctrine, a suit may proceed against a state
official in his or her official capacity, notwithstanding the Eleventh Amendment, when a plaintiff, “(a) alleges an
ongoing violation of federal law, and (b) seeks relief properly characterized as prospective.” See In re Deposit
Ins. Agency, 482 F.3d 612, 618 (2d Cir. 2007) (quotations and citations omitted); see also Santiago v. New
York State Dep't of Corr. Serv., 945 F.2d 25, 32 (2d Cir. 1991) (holding that such claims, however, cannot be
brought directly against the state, or a state agency, but only against state officials in their official capacities).
6 The September 2022 Order dismissed plaintiff's First Amendment claims insofar as plaintiff sought to
challenge the constitutionality of the DOCCS Directives governing advancements for legal copies and
postage. See September 2022 Order at 22. For the reasons discussed in the September 2022 Order, insofar
as plaintiff has reasserted any such claims in his amended complaint, these claims are once again dismissed.
7 Generally, motions for reconsideration are not granted unless “the moving party can point to controlling
decisions or data that the court overlooked - matters, in other words, that might reasonably be expected to
alter the conclusion reached by the court.” Shrader, 70 F.3d at 257.
8 Plaintiff does not suggest that there has been an intervening change in the controlling law, nor has he
presented new evidence which was not previously available. Instead, plaintiff's motion raises concerns
regarding his alleged health issues and difficulties determining what documents he has been provided by the
Court and defendants. See generally, Dkt. No. 33.
9 Generally, when a district court sua sponte dismisses claims brought by a pro se plaintiff, the plaintiff will
be allowed to amend. See Gomez, 171 F.3d at 796. However, an opportunity to amend is not required with
respect to claims with defects that are substantive rather than merely formal, such that any amendment would
be futile. Cuoco v. Moritsugu, 222 F.3d 99, 112 (2d Cir. 2000); see also Pucci v. Brown, 423 Fed. App'x 77,
78 (2d Cir. 2011).
10 Because Aimee Cowan, on behalf of the Office of the New York State Attorney General, has appeared in
this action as counsel for defendants Debejian, Sheehan, and Leone, the Clerk need not issue summonses
for these defendants.
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Dudley v. Hochul, Not Reported in Fed. Supp. (2024)
© 2026 Thomson Reuters. No claim to original U.S. Government Works. 1
2024 WL 1906594
Only the Westlaw citation is currently available.
United States District Court, N.D. New York.
Ellis Davon DUDLEY, II, Plaintiff,
v.
Governor Kathy HOCHUL, of New York; New York
State; Dr. James V. McDonald; Randal B. Caldwell;
Megan Johnson; Christina F. Dejoseph; Sandra Milner;
Jeffrey A. Domachowski; Karen Stanislaus; Arlene
Bradshaw; Julie A. Cecile; Onondaga County Sheriff;
Patricia L. DeRue; Sue Ottaviano; Julie A. Cerio;
Katie Boyea; David M. Primo; Martha E. Mulroy;
Michelle Pirro Baily; Unkown; Hiscock Legal Aid;
and Dep't of Health and Soc. Servs., Defendants.
5:
24
-
CV
-
0048
(DNH/ML)
|
Signed May 1, 2024
Attorneys and Law Firms
ELLIS DAVON DUDLEY, II, Plaintiff, Pro Se, Post Office
Box 7124, Syracuse, New York 13261.
ORDER and REPORT-RECOMMENDATION
MIROSLAV LOVRIC, United States Magistrate Judge
*1 The Clerk has sent this pro se Complaint (Dkt. No. 1)
together with an application to proceed in forma pauperis
(“IFP”) (Dkt. No. 2) and a motion for permission to file
electronically in ECF (Dkt. No. 3) filed by Ellis Davon
Dudley, II (“Plaintiff”) to the Court for review. For the
reasons discussed below, I (1) grant Plaintiff's IFP application
(Dkt. No. 2), (2) recommend that Plaintiff's Complaint (Dkt.
No. 1) be dismissed in its entirety without leave to amend, and
(3) deny without prejudice Plaintiff's motion for permission
to file electronically (Dkt. No. 3).
I. BACKGROUND
Liberally construed, 1 Plaintiff's Complaint asserts that his
rights were violated by Defendants Governor Kathy Hochul,
New York State, Dr. James V. McDonald, Randal B.
Caldwell, Megan Johnson, Christina F. Dejoseph, Sandra
Milner, Jeffrey A. Domachowski, Karen Stanislaus, Arlene
Bradshaw, Julie A. Cecile, Onondaga County Sheriff, Patricia
L. DeRue, Sue Ottaviano, Julie A. Cerio, Katie Boyea, David
M. Primo, Martha E. Mulroy, Michelle Pirro Baily, Unknown,
Hiscock Legal Aid, and Department of Health and Social
Service (collectively “Defendants”), who were all involved in
Plaintiff's state court family proceedings. (See generally Dkt.
No. 1.)
The Complaint is difficult to decipher (id.), but alleges that
Plaintiff has two minor children, whom Plaintiff refers to
as “blue child” and “pink child” throughout the Complaint.
(Dkt. No. 1 at 2.) The Complaint provides a timeline of
Plaintiff's experiences with the New York State Family Court
system dating back to July 9, 2019. (Id.) The crux of
Plaintiff's grievance appears to be that (1) the court-ordered
child support is excessive, (2) Plaintiff and his family have
somehow “lost” their nationality because of the family court
proceedings, and (3) Plaintiff's wages were garnished to pay
his court-ordered child support and he did not consent to the
seizure of his property. (See generally Dkt. No. 1.)
The Complaint appears to assert the following nine causes of
action: (1) a claim of racketeering, (2) a claim that Plaintiff's
rights pursuant to the First Amendment and 42 U.S.C. § 1983
were violated; (3) a claim that Plaintiff's rights pursuant to the
Second Amendment and 42 U.S.C. § 1983 were violated; (4) a
claim that Plaintiff's rights pursuant to the Fourth Amendment
and 42 U.S.C. § 1983 were violated; (5) a claim that Plaintiff's
rights pursuant to the Fifth Amendment and 42 U.S.C. § 1983
were violated; (6) a claim that Plaintiff's rights pursuant to the
Sixth Amendment and 42 U.S.C. § 1983 were violated; (7) a
claim that Plaintiff's rights pursuant to the Eighth Amendment
and 42 U.S.C. § 1983 were violated; (8) a claim that Plaintiff's
rights pursuant to the Thirteenth Amendment and 42 U.S.C.
§ 1983 were violated; and (9) a claim that Plaintiff's rights
pursuant to the Fourteenth Amendment and 42 U.S.C. §
1983 were violated. (Dkt. No. 1 at 6.) As relief, Plaintiff
seeks damages in the “amount of 20 million dollars or a
full disclosure of all contract terms for a consideration to
acceptance at the agreement of terms of competition. As
well [as] an immediate stop to the organization tasks with
damaging and seizure [of Plaintiff's] property.” (Id.)
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*2 Plaintiff also filed an application to proceed IFP. (Dkt.
No. 2.)
II. PLAINTIFF'S APPLICATION TO PROCEED IN
FORMA PAUPERIS
When a civil action is commenced in a federal district court,
the statutory filing fee, currently set at $405, must ordinarily
be paid. 28 U.S.C. § 1914(a). A court is authorized, however,
to permit a litigant to proceed IFP status if a party “is unable
to pay” the standard fee for commencing an action. 28 U.S.C.
§ 1915(a)(1). 2 After reviewing Plaintiff's IFP application
(Dkt. No. 2), the Court finds that Plaintiff meets this standard.
Therefore, Plaintiff's application to proceed IFP is granted. 3
(Id.)
III. LEGAL STANDARD FOR INITIAL REVIEW OF
COMPLAINT
“Notwithstanding any filing fee, or any portion thereof, that
may have been paid, the court shall dismiss the case at any
time if the court determines that ... the action ... (i) is frivolous
or malicious; (ii) fails to state a claim on which relief may be
granted; or (iii) seeks monetary relief against a defendant who
is immune from such relief.” 28 U.S.C. § 1915(e)(2).
In determining whether an action is frivolous, the court must
consider whether the complaint lacks an arguable basis in
law or in fact. Neitzke v. Williams, 490 U.S. 319, 325 (1989).
Dismissal of frivolous actions is appropriate to prevent
abuses of court process as well as to discourage the waste
of judicial resources. Neitzke, 490 U.S. at 327; Harkins v.
Eldridge, 505 F.2d 802, 804 (8th Cir. 1974); see Fitzgerald
v. First East Seventh Street Tenants Corp., 221 F.3d 362,
364 (2d Cir. 2000) (a district court “may dismiss a frivolous
complaint sua sponte even when the plaintiff has paid the
required filing fee[.]”); see also Pflaum v. Town of Stuyvesant,
Columbia Cnty., N.Y., 11-CV-0335, 2016 WL 865296, at *1,
n.2 (N.D.N.Y. Mar. 2, 2016) (Suddaby, C.J.) (finding that
the Court had the power to address and dismiss additional
theories of the plaintiff's retaliation claim sua sponte because
those theories were so lacking in arguable merit as to be
frivolous).
In order to state a claim upon which relief can be granted,
a complaint must contain, inter alia, “a short and plain
statement of the claim showing that the pleader is entitled
to relief.” Fed. R. Civ. P. 8(a)(2). The requirement that a
plaintiff “show” that he or she is entitled to relief means that
a complaint “must contain sufficient factual matter, accepted
as true, to ‘state a claim to relief that is plausible on its
face.’ ” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (emphasis
added) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570
[2007]). “Determining whether a complaint states a plausible
claim for relief ... requires the ... court to draw on its judicial
experience and common sense.... [W]here the well-pleaded
facts do not permit the court to infer more than the mere
possibility of misconduct, the complaint has alleged–but it has
not shown–that the pleader is entitled to relief.” Iqbal, 556
U.S. at 679 (internal citation and punctuation omitted).
*3 “In reviewing a complaint ... the court must accept the
material facts alleged in the complaint as true and construe all
reasonable inferences in the plaintiff's favor.” Hernandez v.
Coughlin, 18 F.3d 133, 136 (2d Cir. 1994) (citation omitted).
However, “the tenet that a court must accept as true all of the
allegations contained in a complaint is inapplicable to legal
conclusions. Threadbare recitals of the elements of a cause
of action, supported by mere conclusory statements, do not
suffice.” Iqbal, 556 U.S. at 678.
Courts are “obligated to construe a pro se complaint liberally.”
Harris v. Mills, 572 F.3d 66, 72 (2d Cir. 2009); see also
Nance v. Kelly, 912 F.2d 605, 606 (2d Cir. 1990) (per curiam)
(reading the plaintiff's pro se complaint “broadly, as we
must” and holding that the complaint sufficiently raised a
cognizable claim). “[E]xtreme caution should be exercised in
ordering sua sponte dismissal of a pro se complaint before the
adverse party has been served and [the] parties ... have had an
opportunity to respond.” Anderson v. Coughlin, 700 F.2d 37,
41 (2d Cir. 1983).
IV. ANALYSIS
In addressing the sufficiency of a plaintiff's complaint, the
court must construe his pleadings liberally. Sealed Plaintiff v.
Sealed Defendant, 537 F.3d 185, 191 (2d Cir. 2008). Having
reviewed Plaintiff's Complaint with this principle in mind, I
recommend that all causes of action be dismissed.
A. Claims Alleging “Racketeering”
To the extent that the Complaint is construed as alleging
a claim pursuant to 18 U.S.C. § 1691 et seq., (“RICO”) I
recommend that it be dismissed. 4
It is “unlawful for any person employed by or associated with
any enterprise engaged in, or the activities of which affect,
interstate or foreign commerce, to conduct or participate,
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directly or indirectly, in the conduct of such enterprise's
affairs through a pattern of racketeering activity.” 18 U.S.C.
§ 1962(c). Section 1964 establishes a private right of action
for individuals who are harmed by racketeering activity.
18 U.S.C. § 1964. This private right of action permits a
plaintiff to bring a RICO claim for sustaining injuries “in
his business or property by reason of a violation of section
1962.” 18 U.S.C. § 1964(c). Generally, a plaintiff bringing
a civil RICO claim under “Section 1962(c) must allege
that (1) the defendant has violated the substantive RICO
statute, and (2) the plaintiff was injured in his business or
property ‘by reason of a violation of section 1962.’ ” Malvar
Egerique v. Chowaiki, 19-CV-3110, 2020 WL 1974228, at *7
(S.D.N.Y. Apr. 24, 2020) (quoting Moss v. Morgan Stanley,
Inc., 719 F.2d 5, 17 (2d Cir. 1983) (citing 18 U.S.C. §
1962(c))), vacated in part on other grounds by Weiss v. David
Benrimon Fine Art LLC, 20-CV-3842, 2021 WL 6128437 (2d
Cir. Dec. 28, 2021) (summary order). More specifically, to
assert a civil RICO claim under Section 1962(c), a plaintiff
must allege the following elements: “(1) conduct, (2) of an
enterprise, (3) through a pattern, (4) of racketeering activity.”
Sedima, S.P.R.L. v. Imrex Co., Inc., 473 U.S. 479, 496 (1985).
Additionally, a plaintiff asserting a civil RICO claim must
plead facts plausibly suggesting a resulting “domestic injury”
to their business or property. RJR Nabisco, Inc. v. European
Community, 136 S. Ct. 2090, 2111 (2016).
*4 The Complaint fails to allege facts plausibly suggesting
the existence of an “enterprise” within the meaning of RICO.
More specifically, Plaintiff fails to allege facts plausibly
suggesting that Defendants constitute, control, or participate
in any enterprise with a distinguishable existence or purpose.
See Mackin v. Auberger, 59 F. Supp. 3d 528, 543 (W.D.N.Y.
2014) (“Plaintiff fails to allege that [the defendants] had
a common or shared purpose or that they functioned as a
continuing unit.”). In addition, the Complaint fails to allege
any facts plausibly suggesting that Defendants functioned as
a continuing unit. “Without such an enterprise, a RICO claim
like [Plaintiff]’s must fail.” Liang v. City of New York, 10-
CV-3089, 2013 WL 5366394, at *13 (E.D.N.Y. Sept. 24,
2013); see also Peterson v. City of New York, 11-CV-3141,
2012 WL 75029, at *3-4 (S.D.N.Y. Jan. 9, 2012) (dismissing
the plaintiff's RICO claim because “[t]he existence of a RICO
enterprise is a necessary element for liability” and the plaintiff
failed to allege facts plausibly suggesting the existence of a
RICO enterprise).
Moreover, the Complaint fails to allege facts plausibly
suggesting a pattern of racketeering activity. 18 U.S.C. §
1961(5) (To sufficiently allege a “pattern of racketeering
activity,” a plaintiff must allege at least two acts of
“racketeering activity” that occur within ten years of each
other); Westester Cnty. Indep. Party v. Astorino, 137 F.
Supp. 3d 586, 608 (S.D.N.Y. 2015) (emphasis in original)
(quoting Cofacredit, S.A. v. Windsor Plumbing Supply Co.,
187 F.3d 229, 242 (2d Cir. 1999)) (To qualify as a “pattern”
of racketeering activity, the predicate acts “must be from
the crimes listed in [Section] 1961(1) and they must be
‘related, and ... amount to or pose a threat of continued
criminal activity.’ ”). The Complaint fails to allege any
acts of racketeering activity and instead merely uses the
word “racketeering” in a conclusory fashion without facts
plausibly suggesting the commission of any predicate acts.
(See generally Dkt. No. 1.)
For each of these alternative reasons, I recommend that
Plaintiff's RICO claim be dismissed.
B. Claims Pursuant to 42 U.S.C. § 1983
After carefully considering Plaintiff's claims pursuant to 42
U.S.C. § 1983, I recommend that they be dismissed for three
reasons.
First, to the extent that there are final state court orders or
judgments that Plaintiff asks this Court to overturn, those
claims are barred by the Rooker-Feldman doctrine. Porter v.
Nasci, 24-CV-0033, 2024 WL 1142144, at *4 (N.D.N.Y. Mar.
15, 2024) (Dancks, M.J.) (citing Exxon Mobil Corp. v. Saudi
Basic Indus. Corp., 544 U.S. 280, 291-92 (2005); Dorce v.
City of New York, 2 F.4th 82, 101 (2d Cir. 2021)) (“Under
the Rooker-Feldman doctrine, a federal district court lacks
authority to review a final state court order or judgment where
a litigant seeks relief that invites the federal district court to
reject or overturn such a final state court order or judgment.”).
“This includes when a litigant seeks relief that invites a federal
district court to reject or overturn a final decision of a New
York Family Court as to a child support dispute brought in
that state court.” Porter, 2024 WL 1142144, at *4 (citing
Sims v. Kaufman, 23-CV-7927, 2024 WL 757338, at *4
(S.D.N.Y. Feb. 14, 2024)) (additional citation omitted); see
also Fernandez v. Turetsky, 14-CV-4568, 2014 WL 5823116,
at *4 (E.D.N.Y. Nov. 7, 2014) (collecting cases in support
of the proposition that “[c]ourts have repeatedly invoked the
[Rooker-Feldman] doctrine in cases ... in which plaintiffs
challenge family court decrees setting child support arrears.”),
aff'd, 645 F. App'x 103 (2d Cir. 2016). Therefore, to the extent
Plaintiff seeks to challenge a final judgment of Onondaga
County Family Court or the Oneida County Family Court, any
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such claim is barred by the Rooker-Feldman doctrine. See,
e.g., Phillips v. Wagner, 22-CV-0833, 2022 WL 17406092, at
*3 (N.D.N.Y. Nov. 4, 2022) (Lovric, M.J.) (“Plaintiff's claims,
while not entirely clear, seem to challenge an order ... in which
the Family Court determined that he owes child support ....
Plaintiff's claims for relief are barred by the Rooker-Feldman
doctrine ....”) (citation omitted), report and recommendation
adopted, 2022 WL 17403441 (N.D.N.Y. Dec. 2, 2022) (Hurd,
J.), appeal dismissed, No. 23-68, 2023 WL 4445323 (2d Cir.
Apr. 25, 2023).
*5 Alternatively, “in the event the underlying family court
proceedings are pending, such claims are likely barred by
the Younger abstention doctrine.” Walker v. O'Connor, 22-
CV-0581, 2022 WL 2341420, at *6 (N.D.N.Y. June 29,
2022) (Dancks, M.J.) (citing Younger v. Harris, 401 U.S.
37 (1971); Amato v. McGinty, 21-CV-0860, 2022 WL
226798, at *11 (N.D.N.Y. Jan. 26, 2022) (Dancks, M.J.)),
report and recommendation adopted, 2022 WL 2805462
(N.D.N.Y. July 18, 2022) (Hurd, J.). “Younger generally
requires federal courts to abstain from taking jurisdiction
over federal constitutional claims that involve or call into
question ongoing state proceedings.” Diamond “D” Const.
Corp. v. McGowan, 282 F.3d 191, 198 (2d Cir. 2002) (citing
Younger, 401 U.S. at 43-44). “Younger abstention is required
when three conditions are met: (1) there is an ongoing state
proceeding; (2) an important state interest is implicated in
that proceeding; and (3) the state proceeding affords the
federal plaintiff an adequate opportunity for judicial review
of the federal constitutional claims.” Diamond “D” Const.
Corp., 282 F.3d at 198 (citing Grieve v. Tamerin, 269 F.3d
149, 152 (2d Cir. 2001)). Courts in this circuit have found
these conditions to be satisfied in matters involving child
support issues. See, e.g., Cogswell v. Rodriguez, 304 F.
Supp. 2d 350, 357 (E.D.N.Y. 2004) (applying the Younger
abstention doctrine to dismiss claims which arose from
“pending state court proceedings involving child support.”)
(citation omitted); Tomczyk v. New York Unified Ct. Sys., 19-
CV-2753, 2019 WL 2437849, at *3 (E.D.N.Y. June 10, 2019)
(citing Sprint Communications, Inc. v. Jacobs, 571 U.S. 69,
72-73 (2013) (“[T]his Court abstains under Younger from
interfering in Plaintiff's ongoing state-court proceedings,
involving divorce and child support issues and ‘implicat[ing]
a State's interest in enforcing the orders and judgments of
its courts.’ ”)). “Accordingly, to the extent that the child
support issues are continuing in Family Court, the Court
should abstain from interfering with that process.” Bowman
v. Morris, 19-CV-0097, 2019 WL 5150196, at *6 (N.D.N.Y.
Apr. 10, 2019) (Stewart, M.J.) (citations omitted), report
and recommendation adopted, 2019 WL 3759174 (N.D.N.Y.
Aug. 9, 2019) (Sannes, J.).
Second, Plaintiff's claims are likely barred pursuant to
the domestic relations exception to the jurisdiction of
federal courts. Dudley v. Montaque, 24-CV-0223, 2024 WL
1464346, at *4 (N.D.N.Y. Apr. 4, 2024) (Dancks, M.J.)
(citing Marshall v. Marshall, 547 U.S. 293, 308 (2006);
Oliver v. Punter, 22-CV-3580, 2022 WL 3228272, at *3
(E.D.N.Y. Aug. 10, 2022) (“The domestic relations exception
to federal jurisdiction divests the federal courts of power
to issue divorce alimony and child custody decrees ....
This exception also extends to child support determinations
and the enforcement thereof.”) (internal quotations and
citations omitted)) (“under the domestic relations exception
to the jurisdiction of federal courts, cases involving divorce,
alimony, and child custody remain outside this Court's
jurisdiction.”). Accordingly, this Court lacks jurisdiction to
adjudicate a claim involving issues of child custody and
support. See Rotondo v. New York, 17-CV-1065, 2017 WL
5201738, at *4 (N.D.N.Y. Oct. 31, 2017) (Peebles, M.J.)
(“[I]t is manifestly clear that plaintiff's claims implicate the
domestic-relations exception to federal court jurisdiction.
Plaintiff challenges a state-court's determination denying him
relief from a family court's child support order, and plaintiff's
requests for relief include removal of the family court
proceeding to federal court.”), report and recommendation
adopted, 2017 WL 5198194 (N.D.N.Y. Nov. 9, 2017)
(Sharpe, J.); Cruz v. New York, 17-CV-0510, 2017 WL
6021838, at *7 (N.D.N.Y. Oct. 27, 2017) (Dancks, M.J.),
report and recommendation adopted, 2017 WL 6001833
(N.D.N.Y. Dec. 4, 2017) (Sannes, J.) (collecting cases in
support of the proposition that “[c]laims involving child
custody, support, and visitation brought in federal district
court in this Circuit have regularly been dismissed for lack
of subject matter jurisdiction based on the domestic relations
exception to federal jurisdiction.”).
Third, the claims against Defendants are not cognizable.
1. Claims Against Defendant Hochul
Sovereign immunity bars Plaintiff's claims for damages
against Defendant Hochul in her official capacity. Sovereign
immunity extends to “actions for the recovery of money from
the state” against “state agents.” Leitner v. Westchester Cmty.
Coll., 779 F.3d 130, 134 (2d Cir. 2015) (citing Regents of
the Univ. of Cal. v. Doe, 519 U.S. 425, 429 (1997); Hans v.
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Louisiana, 134 U.S. 1, 15 (1890)). A lawsuit brought against
officials of a government entity in their official capacities
is “in all respects other than name, to be treated as a suit
against the entity.” Kentucky v. Graham, 473 U.S. 159, 166
(1985); see Garcia v. S.U.N.Y. Health Scis. Ctr. of Brooklyn,
280 F.3d 98, 107 (2d Cir. 2001). Because Plaintiff's claims for
damages against Defendant Hochul in her official capacity
is effectively an “action[ ] for the recovery of money from
the state,” Leitner, 779 F.3d at 134, sovereign immunity bars
them.
*6 Moreover, to the extent that Plaintiff's claims against
Defendant Hochul in her official capacity seek prospective
relief and to the extent that Plaintiff's claims are construed
as against Defendant Hochul in her individual capacity,
I recommend that they be dismissed for failure to
allege Defendant Hochul's personal involvement in any
constitutional violation. Wright v. Smith, 21 F.3d 496, 501 (2d
Cir. 1994) (quoting Moffitt v. Town of Brookfield, 950 F.2d
880, 885 (2d Cir. 1991)); see Bass v. Jackson, 790 F.2d 260,
263 (2d Cir. 1986) (holding that in order to prevail on a section
1983 cause of action against an individual, a plaintiff must
show “a tangible connection between the acts of a defendant
and the injuries suffered.”); Provost v. City of Newburgh,
262 F.3d 146, 155 (2d Cir. 2001) (internal quotation marks
omitted) (“[D]irect participation as a basis of liability in
this context requires intentional participation in the conduct
constituting a violation of the victim's rights by one who
knew of the facts rendering it illegal.”). The Second Circuit
has made clear that “there is no special rule for supervisory
liability,” and a “plaintiff must plead and prove ‘that each
Government-official defendant, through the official's own
individual actions, has violated the Constitution.’ ” Tangreti v.
Bachmann, 983 F.3d 609, 618 (2d Cir. 2020). Here, although
Plaintiff names Defendant Hochul as a party, the body of the
Complaint lacks any allegations of wrongdoing by her. (See
generally Dkt. No. 1.) As a result, I recommend that Plaintiff's
claims against Defendant Hochul be dismissed pursuant to 28
U.S.C. § 1915(e)(2)(B).
2. Claims Against Defendant New York State
As set forth above, sovereign immunity pursuant to the
Eleventh Amendment bars individuals from suing states in
federal court, unless Congress abrogates states’ immunity or
a state consents to suit. See U.S. Const. Amend. XI; Gollomp
v. Spitzer, 568 F.3d 355, 365-66 (2d Cir. 2009). Accordingly,
I recommend that Plaintiff's claims asserted against the New
York State be dismissed pursuant to Section 1915(e)(2)(B)(i).
3. Claims Against Defendant McDonald
The Complaint identifies Defendant McDonald “as the
commissioner of the Department of Health in New York
State.” (Dkt. No. 1 at 1.) To the extent that the Complaint is
construed as asserting claims against Defendant McDonald in
his official capacity, he is immune from suit pursuant to the
Eleventh Amendment.
Moreover, to the extent that the Complaint is construed
as asserting claims against Defendant McDonald in his
individual capacity, I recommend that they be dismissed for
failure to assert his personal involvement in any constitutional
violation.
4. Claims Against Defendant Caldwell
Judges are absolutely immune from suit for claims seeking
damages for any actions taken within the scope of their
judicial responsibilities. See Mireles v. Waco, 502 U.S. 9,
11-12 (1991). Generally, “acts arising out of, or related to,
individual cases before [a] judge are considered judicial
in nature.” Bliven v. Hunt, 579 F.3d 204, 210 (2d Cir.
2009). “[E]ven allegations of bad faith or malice cannot
overcome judicial immunity.” Bliven, 579 F.3d at 209.
Judicial immunity does not apply when a judge takes action
outside his or her judicial capacity, or when a judge takes
action that, although judicial in nature, is taken “in the
complete absence of all jurisdiction.” Mireles 502 U.S. at
11-12; see also Bliven, 579 F.3d at 209-10 (describing actions
that are judicial in nature). However, “the scope of [a] judge's
jurisdiction must be construed broadly where the issue is the
immunity of the judge.” Stump v. Sparkman, 435 U.S. 349,
356 (1978).
Plaintiff asserts claims that appear to arise from the efforts
of Defendant Caldwell, in his capacity as a family court
judge in Oneida County. (Dkt. No. 1 at 6.) Defendant Judge
Caldwell is therefore immune from suit under the doctrine of
judicial immunity. As a result, I recommend that Plaintiff's
claims against Defendant Caldwell in his individual capacity
be dismissed based on the doctrine of judicial immunity.
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Moreover, I recommend that Plaintiff's claims against
Defendant Caldwell in his official capacity be dismissed
pursuant to the Eleventh Amendment. See Sundwall v. Leuba,
28 F. App'x 11, 12 (2d Cir. 2001) (citing K & A Radiologic
Tech. Servs., Inc. v. Comm'r of the Dep't of Health, 189
F.3d 273, 278 (2d Cir. 1999)) (holding that “state officers,
if sued in their official capacities, are immunized from suit
by private citizens under the Eleventh Amendment.”); King
v. New York State, 23-CV-3421, 2023 WL 5625440, at *4
(E.D.N.Y. Aug. 31, 2023) (citing Thomas v. Martin-Gibbons,
857 F. App'x 36, 37 (2d Cir. 2021) (affirming dismissal of
pro se Section 1983 claims against the State of New York
and a state court judge in his official capacity based on
Eleventh Amendment immunity)) (“Eleventh Amendment
immunity extends to state officials acting in their official
capacities, including state court judges.”); Aron v. Becker,
48 F. Supp. 3d 347, 366-67 (N.D.N.Y. 2014) (McAvoy, J.)
(dismissing the plaintiff's claims against a state court judge
in his official capacity based on the doctrine of Eleventh
Amendment immunity).
5. Claims Against Defendants
Johnson, Ottaviano, Boyea, and Primo
*7 The Complaint alleges that Defendant Johnson was an
“Onondaga Family Court attorney” who was tasked with
conducting a “virtual meeting call for the Onondaga County
family Courthouse.” (Dkt. No. 1 at 2.) The Complaint alleges
that Defendant Ottaviano was a court assistant who postponed
a hearing that was scheduled for February 15, 2023. (Dkt. No.
1 at ¶ 18.) The Complaint alleges that Defendant Boyea was a
“Secretary” who emailed a modified custody order signed by
Defendant Cecile. (Dkt. No. 1 at ¶ 23.) Finally, the Complaint
alleges that Defendant Primo is the Clerk of the Court in
Onondaga County Family Court (Dkt. No. 1 at ¶ 10) and he
notified the parties of a hearing scheduled on July 20, 2023
(id. at ¶ 22).
“As a general principle, a government attorney is entitled to
absolute immunity when functioning as an advocate of the
state in a way that is intimately associated with the judicial
process.” Mangiafico v. Blumenthal, 471 F.3d 391, 396 (2d
Cir. 2006) (citing Imbler v. Pachtman, 424 U.S. 409, 430
(1976)). Judicial immunity has been extended to judicial law
clerks, the New York State Chief Administrative Judge, court
attorneys, and the chief clerks of several state courts. Jackson
v. Pfau, 523 F. App'x 736, 737-38 (2d Cir. 2013) (citing
Rodriguez v. Weprin, 116 F.3d 62, 66 (2d Cir. 1997)).
As a result, I recommend that Plaintiff's claims against
Defendants Johnson, Ottaviano, Boyea, and Primo in their
individual capacities be dismissed, because they are immune
from suit. 5 See Leftridge v. Judicial Branch, 22-CV-0411,
2023 WL 4304792, at *9 (D. Conn. June 30, 2023)
(dismissing the plaintiff's claims against the state court clerks
of court based on the doctrine of quasi-judicial immunity
where “their alleged actions arose out of or related to
[plaintiff]’s child support and child custody proceedings.”);
Braithwaite v. Tropea, 23-CV-1431, 2023 WL 4207907, at *4
(E.D.N.Y. June 27, 2023) (citing Jackson v. Pfau, 523 F. App'x
736, 737-38 (2d Cir. 2013) (affirming dismissal pursuant
to Section 1915(e)(2)(B) of pro se plaintiff's Section 1983
claims against the Chief Clerks of several state courts based
on the doctrine of judicial immunity)) (dismissing as frivolous
the plaintiff's claims against the clerk of the court because he
was entitled to absolute immunity); Mendez v. Johnson, 22-
CV-6811, 2022 WL 3587600, at *2 (S.D.N.Y. Aug. 22, 2022)
(citing inter alia, Chmura v. Norton, Hammersley, Lopez
& Skokos Inverso PA, 17-CV-2164, 2018 WL 2138631, at
*2 (D. Conn. May 9, 2018) (extending judicial immunity
to a clerk of court); Manko v. Ruchelsman, 12-CV-4100,
2012 WL 4034038, at *2 (E.D.N.Y. Sept. 10, 2012) (same))
(noting that courts have routinely granted judicial immunity
to “government officials, including clerks of court and other
court employees, for their acts that assist a judge in the
performance of his or her judicial duties.”).
*8 Moreover, I recommend that Plaintiff's claims against
Defendants Johnson, Ottviano, Boyea, and Primo in their
official capacities as employees of the Onondaga Family
Court be dismissed because the Onondaga Family Court is an
arm of the New York state court system and New York State
is immune from suit pursuant to the Eleventh Amendment.
Braithwaite, 2023 WL 4207907, at *4 (collecting cases)
(holding that the plaintiff's claims against the Chief Clerk of
the Suffolk County Court in his official capacity are barred
by the Eleventh Amendment).
6. Claims Against Defendants Dejoseph,
Cecile, Cerio, Mulroy, and Pirro Baily
Plaintiff's claims against Defendants Dejoseph, Cecile, Cerio,
Mulroy, and Pirro Baily relate to their capacities as Onondaga
County Family Court judges. (See generally Dkt. No.
1.) As set forth above in Part IV.B.4. of this Order
and Report-Recommendation, Defendants Dejoseph, Cecile,
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Cerio, Mulroy, and Pirro Baily in their individual capacities
are immune from suit pursuant to the doctrine of absolute
judicial immunity. Moreover, as set forth above in Part IV.B.4.
of this Order and Report-Recommendation, claims against
Defendants Dejoseph, Cecile, Cerio, Mulroy, and Pirro Baily
in their official capacities are essentially claims against New
York State, which is immune from suit pursuant to the
Eleventh Amendment.
7. Claims Against Defendants DeRue and Domachowski
Plaintiff's claims against Defendants DeRue and
Domachowski relate to their roles as Onondaga County
Family Court support magistrates. (See generally Dkt. No. 1.)
As set forth above in Part IV.B.4. of this Order and Report-
Recommendation, Defendants DeRue and Domachowski in
their individual capacities are immune from suit pursuant
to the doctrine of absolute judicial immunity. See Miller v.
Primo, 23-CV-1051, 2023 WL 6379325, at *6 (N.D.N.Y.
Sept. 29, 2023) (Lovric, M.J.) (recommending dismissal
of the plaintiff's claims against “Defendants DeRue and
Domachowski, who acted as the support magistrate judges”
and finding that such claims “are barred under the doctrine of
judicial immunity”), report and recommendation adopted by
2023 WL 754323 (N.D.N.Y. Nov. 14, 2023) (Sannes, C.J.).
Moreover, as set forth above in Part IV.B.4. of this Order and
Report-Recommendation, claims against Defendants DeRue
and Domachowski in their official capacities are essentially
claims against New York State, and are immune from suit
pursuant to the Eleventh Amendment.
8. Claims Against Defendant Stanislaus
“The law is clear that court referees are entitled to absolute
judicial immunity from liability with respect to acts taken in
the scope of their duties.” Khrapko v. Splain, 389 F. Supp.
3d 199, 205 (W.D.N.Y. 2019) (citing Green v. Kadilac Mortg.
Bankers, Ltd., 936 F. Supp. 108, 115 (S.D.N.Y. 1996); Weiss v.
Feigenbaum, 558 F. Supp. 265, 272 (E.D.N.Y. 1982)); accord
Witcher v. Moriber, 21-CV-6168, 2022 WL 1085297, at *2
(E.D.N.Y. Apr. 11, 2022) (citing Wilson v. Wilson-Polson,
446 F. App'x 330, 331 (2d Cir. 2011) (allegations that a New
York State Family Court referee violated plaintiff's procedural
due process rights failed in light of the referee's absolute
immunity to suit); Topolski v. Wrobleski, 13-CV-0872, 2014
WL 2215761, at *3 (N.D.N.Y. May 29, 2014) (“Judicial
immunity is so broad that judges and referees ‘are not liable
to civil actions for their judicial acts, even when such acts ...
are alleged to have been done maliciously or corruptly.’ ”);
Renner v. Stanton, 13-CV-1676, 2013 WL 1898389, at *3
(E.D.N.Y. May 7, 2013) (dismissing claims against Family
Court Referee based on judicial immunity)).
*9 As a result, I recommend that Plaintiff's claim
against Defendant Stanislaus in her individual capacity
be dismissed based on the doctrine of absolute judicial
immunity. See Miller Ex v. Primo, 22-CV-0680, 2022 WL
16556060, at *5 (N.D.N.Y. Sept. 29, 2022) (Lovric, M.J.)
(recommending dismissal of the plaintiff's claims against
Defendant Stanislaus because she was entitled to absolute
judicial immunity as a court attorney referee), report and
recommendation adopted by 2022 WL 16551700 (N.D.N.Y.
Oct. 31, 2022) (Sannes, C.J.).
Moreover, as set forth above in Part IV.B.4. of this Order
and Report-Recommendation, any claim against Defendant
Stanislaus in her official capacity is essentially a claim against
New York State, which is immune from suit pursuant to the
Eleventh Amendment.
9. Claims Against Defendant Bradshaw
Based on the allegations contained in the Complaint, it
appears that Defendant Bradshaw was an attorney appointed
to represent one of Plaintiff's minor children. (Dkt. No. 1
at ¶ 16.) The Second Circuit has held that “law guardians
who act as ‘attorney[s] for the child’ are not state actors
for the purposes of suits filed pursuant to § 1983.” Milan v.
Wertheimer, 808 F.3d 961, 964 (2d Cir. 2015).
As a result, I recommend that Plaintiff's claims against
Defendant Bradshaw be dismissed.
10. Claims Against Defendant Onondaga County Sheriff
Defendant Onondaga County Sheriff is merely a department
of a municipality, and thus, is not amenable to suit. See White
v. Syracuse Police Dep't, 18-CV-1471, 2019 WL 981850,
at *3 (N.D.N.Y. Jan. 7, 2019) (Peebles, M.J.) (citing Krug
v. Cnty. of Rennselaer, 559 F. Supp. 2d 223, 247 (N.D.N.Y.
2008) (McAvoy, J.); Turczyn ex rel. McGregor v. City of
Utica, 13-CV-1357, 2014 WL 6685476, at *2 (N.D.N.Y. Nov.
26, 2014) (Sharpe, J.); Hoisington v. Cnty. of Sullivan, 55 F.
Supp. 2d 212, 214 (S.D.N.Y. 1999) (“Under New York law, a
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department of a municipal entity is merely a subdivision of the
municipality and has no separate legal existence. Therefore,
municipal departments like the Department of Social Services
are not amenable to suit and no claims lie directly against
the Department.”)) (“Although a municipality is subject to
suit pursuant to section 1983, see Monell v. Dep't of Soc.
Servs., 436 U.S. 658, 690 (1978), a municipal ... department
does not have the capacity to be sued as an entity separate
from the municipality in which it is located.”), report and
recommendation adopted, 2019 WL 974824 (N.D.N.Y. Feb.
28, 2019) (Suddaby, C.J.). As a result, I recommend that
Plaintiff's claims against Defendant Onondaga County Sheriff
be dismissed because it is not an entity amenable to suit. 6
11. Claims Against Defendant Hiscock Legal Aid
*10 The Complaint alleges that Defendant Hiscock Legal
Aid and attorneys employed by it represented the mother
of Plaintiff's minor children during the State Family Court
proceedings. (Dkt. No. 1 at ¶ 5.) Notwithstanding the
appointment of Defendant Hiscock Legal Aid as legal
representation, it was not a state actor for purposes of 42
U.S.C. § 1983. “Although [Defendant Hiscock Legal Aid
was] supplied and funded by the state, [it] act[ed] according
to the best interests of [its] client with ‘no obligation to
the mission of the state.’ ” Milan, 808 F.3d at 964 (quoting
Meeker v. Kercher, 782 F.2d 153, 155 (10th Cir. 1986))
(internal quotation omitted).
As a result, I recommend that Plaintiff's claims against
Defendant Hiscock Legal Aid be dismissed.
12. Claims Against Defendant
Department of Health and Social Service
It is unclear based on the allegations in the Complaint if
Defendant Department of Health and Social Service is a
division of New York State or Onondaga County. To the
extent that it is a department of New York State, it is immune
from suit pursuant to the Eleventh Amendment as set forth
in Part IV.B.1 of this Order and Report-Recommendation.
To the extent that Defendant Department of Health and
Social Service is a department of Onondaga County, it is not
amenable to suit pursuant as set forth above in Part IV.B.10
of this Order and Report-Recommendation. 7
13. Claims Against Defendants Milner and Unknown
“Dismissal is appropriate where a defendant is listed in the
caption, but the body of the complaint fails to indicate what
the defendant did to the plaintiff.” Cipriani v. Buffardi, 06-
CV-0889, 2007 WL 607341, at *1 (N.D.N.Y. Feb. 20, 2007)
(Kahn, J.) (citing Gonzalez v. City of New York, 97-CV-2246,
1998 WL 382055, at *2 (S.D.N.Y. July 9, 1998)); see also
Crown v. Wagenstein, 96-CV-3895, 1998 WL 118169, at *1
(S.D.N.Y. Mar. 16, 1998) (mere inclusion of warden's name in
complaint insufficient to allege personal involvement); Taylor
v. City of New York, 953 F. Supp. 95, 99 (S.D.N.Y. 1997)
(same).
The Complaint names Milner and Unknown as defendants,
but the body lacks any allegations of wrongdoing by these
individuals. (See generally Dkt. No. 1.) As a result, I
recommend that the claims against them be dismissed for
failure to state a claim upon which relief may be granted.
For each of these alternative reasons, I recommend that the
Complaint be dismissed in its entirety.
V. OPPORTUNITY TO AMEND
Generally, a court should not dismiss claims contained in a
complaint filed by a pro se litigant without granting leave to
amend at least once “when a liberal reading of the complaint
gives any indication that a valid claim might be stated.”
Branum v. Clark, 927 F.2d 698, 704-05 (2d Cir. 1991);
see also Fed. R. Civ. P. 15(a)(2) (“The court should freely
give leave when justice so requires.”). An opportunity to
amend is not required, however, where “the problem with [the
plaintiff's] causes of action is substantive” such that “better
pleading will not cure it.” Cuoco v. Moritsugu, 222 F.3d 99,
112 (2d Cir. 2000); see also Cortec Indus. Inc. v. Sum Holding
L.P., 949 F.2d 42, 48 (2d Cir. 1991) (“Of course, where a
plaintiff is unable to allege any fact sufficient to support its
claim, a complaint should be dismissed with prejudice.”).
Stated differently, “[w]here it appears that granting leave to
amend is unlikely to be productive, ... it is not an abuse of
discretion to deny leave to amend.” Ruffolo v. Oppenheimer
& Co., 987 F.2d 129, 131 (2d Cir. 1993); accord, Brown v.
Peters, 95-CV-1641, 1997 WL 599355, at *1 (N.D.N.Y. Sept.
22, 1997) (Pooler, J.). 8
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*11 Here, better pleading could not cure the deficiencies
described above. As a result, I recommend that Plaintiff's
Complaint be dismissed without leave to replead.
VI. PLAINTIFF'S MOTION TO OBTAIN ECF LOGIN
AND PASSWORD
In light of the recommended disposition of this case,
Plaintiff's motion for ECF login and password is denied
without prejudice. (Dkt. No. 3.) “Because this court
is recommending dismissal at this time, the court will
deny [P]laintiff's motion to obtain ECF privileges without
prejudice.” Amato v. McGinty, 17-CV-0593, 2017 WL
9487185, at *11 (N.D.N.Y. June 6, 2017) (Baxter, M.J.),
report and recommendation adopted, 2017 WL 4083575
(N.D.N.Y. Sept. 15, 2017) (D'Agostino, J.); see Mahmood v.
United States Gov't, 20-CV-0207, 2020 WL 3965125, at *3
(N.D.N.Y. Mar. 17, 2020) (Stewart, M.J.) (same), report and
recommendation adopted, 2020 WL 1808206 (N.D.N.Y. Apr.
9, 2020) (D'Agostino, J.).
ACCORDINGLY, it is
ORDERED that Plaintiff's IFP application (Dkt. No. 2) is
GRANTED; and it is further
ORDERED that Plaintiff's motion to obtain an ECF login and
password (Dkt. No. 3) is DENIED without prejudice; and it
is further respectfully
RECOMMENDED that the COURT DISMISS
WITHOUT PREJUDICE AND WITHOUT LEAVE TO
AMEND Plaintiff's Complaint (Dkt. No. 1) in its entirety
pursuant to 28 U.S.C. § 1915(e); and it is further
ORDERED that the Clerk of the Court shall file a copy of this
Order and Report-Recommendation on Plaintiff, along with
copies of the unpublished decisions cited herein in accordance
with the Second Circuit's decision in Lebron v. Sanders, 557
F.3d 76 (2d Cir. 2009) (per curiam).
NOTICE: Pursuant to 28 U.S.C. § 636(b)(1), the parties
have fourteen days within which to file written objections
to the foregoing report. 9 Such objections shall be filed
with the Clerk of the Court. FAILURE TO OBJECT
TO THIS REPORT WITHIN FOURTEEN DAYS WILL
PRECLUDE APPELLATE REVIEW. 28 U.S.C. § 636(b)
(1) (Supp. 2013); Fed. R. Civ. P. 6(a), 6(d), 72; Roldan v.
Racette, 984 F.2d 85 (2d Cir. 1993) (citing Small v. Sec'y of
Health and Human Servs., 892 F.2d 15 (2d Cir. 1989)).
All Citations
Not Reported in Fed. Supp., 2024 WL 1906594
Footnotes
1 The court must interpret pro se complaints to raise the strongest arguments they suggest. Soto v. Walker,
44 F.3d 169, 173 (2d Cir. 1995) (quoting Burgos v. Hopkins, 14 F.3d 787, 790 (2d Cir. 1994)).
2 The language of that section is ambiguous because it suggests an intent to limit availability of IFP status to
prison inmates. See 28 U.S.C. § 1915(a)(1) (authorizing the commencement of an action without prepayment
of fees “by a person who submits an affidavit that includes a statement of all assets such prisoner possesses”).
The courts have construed that section, however, as making IFP status available to any litigant who can meet
the governing financial criteria. Hayes v. United States, 71 Fed. Cl. 366, 367 (Fed. Cl. 2006); Fridman v. City
of N.Y., 195 F. Supp. 2d 534, 536 n.1 (S.D.N.Y. 2002).
3 Plaintiff is reminded that, although his IFP application has been granted, he is still required to pay fees that
he may incur in this action, including copying and/or witness fees.
4 Under General Order #14 and N.D.N.Y. L.R. 9.2, a party who files a RICO claim must also file a Civil RICO
statement within thirty days after the filing date of the Complaint. Despite thirty days having elapsed since
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the filing of his Complaint, Plaintiff has failed to file a Civil RICO statement. (See generally docket sheet.) As
a result, I recommend that, in the alternative, Plaintiff's RICO claim be dismissed. See Poole v. Bendixen,
20-CV-0697, 2021 WL 3737780, *12 (N.D.N.Y. Aug. 24, 2021) (Suddaby, C.J.); Murphy v. Onondaga Cnty.,
18-CV-1218, 2022 WL 819281, *6 (N.D.N.Y. Mar. 18, 2022) (Sharpe, J.).
5 In the alternative, I recommend that Plaintiff's claims against Defendants Johnson, Ottaviano, Boyea, and
Primo be dismissed because the Complaint fails to allege the personal involvement of them in any alleged
constitutional deprivation, which is a prerequisite to an award of damages under 42 U.S.C. § 1983. Wright
v. Smith, 21 F.3d 496, 501 (2d Cir. 1994) (quoting Moffitt v. Town of Brookfield, 950 F.2d 880, 885 (2d Cir.
1991)). Here, although Plaintiff names Defendants Johnson, Ottaviano, Boyea, and Primo as parties to the
action, the body of the Complaint lacks any allegations of wrongdoing by them. (See generally Dkt. No. 1.)
As a result, I recommend that, in the alternative, Plaintiff's claims against Defendants Johnson, Ottaviano,
Boyea, and Primo be dismissed for failure to state a claim upon which relief may be granted pursuant to 28
U.S.C. § 1915(e)(2)(B).
6 Even if Plaintiff's claims against Defendant Onondaga County Sheriff were liberally construed as against
Onondaga County, I would recommend that they be dismissed. There is no basis for municipal liability alleged
in the Complaint. Plaintiff essentially complains of a discrete incident, during which an officer or individual
employed by Defendant Onondaga County Sheriff did not act properly. (Dkt. No. 1 at 4.) There is no indication
that Plaintiff can assert a policy or custom which would support municipal liability based on these facts. In
addition, none of Plaintiff's allegations reflect a failure to train or “deliberate indifference” to the rights of
persons who would come into contact with employees of Onondaga County.
7 Further, as set forth above in note 6, supra, to the extent that the Complaint is liberally construed as alleging
a claim against Onondaga County, it fails to allege any basis for municipal liability.
8 See also Carris v. First Student, Inc., 132 F. Supp. 3d 321, 340-41 n.1 (N.D.N.Y. 2015) (Suddaby, C.J.)
(explaining that the standard set forth in Gomez v. USAA Fed. Sav. Bank, 171 F.3d 794, 796 (2d Cir. 1999)—
that the Court should grant leave to amend “unless the court can rule out any possibility, however unlikely
it might be, that an amended complaint would be successful in stating a claim”—is likely not an accurate
recitation of the governing law after Bell Atl. Corp. v. Twombly, 550 U.S. 544 (2007)), rev'd on other grounds,
682 F. App'x 30.
9 If you are proceeding pro se and served with this report, recommendation, and order by mail, three additional
days will be added to the fourteen-day period, meaning that you have seventeen days from the date that the
report, recommendation, and order was mailed to you to serve and file objections. Fed. R. Civ. P. 6(d). If the
last day of that prescribed period falls on a Saturday, Sunday, or legal holiday, then the deadline is extended
until the end of the next day that is not a Saturday, Sunday, or legal holiday. Fed. R. Civ. P. 6(a)(1)(C).
End of Document © 2026 Thomson Reuters. No claim to original U.S. Government Works.
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Dudley v. Hocul, Not Reported in Fed. Supp. (2024)
© 2026 Thomson Reuters. No claim to original U.S. Government Works. 1
2024 WL 2399913
Only the Westlaw citation is currently available.
United States District Court, N.D. New York.
Ellis Davon DUDLEY, II, Plaintiff,
v.
Governor Kathy HOCUL et al., Defendants.
5:24-CV-48
|
Signed May 23, 2024
Attorneys and Law Firms
ELLIS DAVON DUDLEY, II, Plaintiff, Pro Se, P.O. Box
7124, Syracuse, NY 13261.
ORDER ON REPORT & RECOMMENDATION
DAVID N. HURD, United States District Judge
*1 On January 11, 2024, pro se plaintiff Ellis Javon
Dudley, II (“plaintiff”) filed this action alleging that the
named defendants violated his civil rights in connection
with certain family-court proceedings being conducted under
New York State law. Dkt. No. 1. Along with his complaint,
plaintiff moved for leave to proceed in forma pauperis (“IFP
Application”), Dkt. No. 2, and for leave to file documents
electronically, Dkt. No. 3.
On May 1, 2024, U.S. Magistrate Judge Miroslav Lovric
granted plaintiff's IFP Application, denied his request to file
electronically, and advised by Report & Recommendation
(“R&R”) that plaintiff's complaint be dismissed without leave
to amend. Dkt. No. 5. As Judge Lovric explained, plaintiff's
RICO claims were procedurally deficient and substantively
meritless, while plaintiff's 42 U.S.C. § 1983 claims were
barred by various claim-preclusion principles. Id.
Plaintiff has not filed objections, and the time period in which
to do so has expired. See Dkt. No. 5. Upon review for clear
error, the R&R is accepted and will be adopted. See FED R.
CIV. P. 72(b).
Therefore, it is
ORDERED that
1. The Report & Recommendation is ACCEPTED;
2. Plaintiff's complaint is DISMISSED without leave to
amend.
IT IS SO ORDERED.
All Citations
Not Reported in Fed. Supp., 2024 WL 2399913
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Gleeson v. County of Nassau, Not Reported in Fed. Supp. (2019)
© 2026 Thomson Reuters. No claim to original U.S. Government Works. 1
KeyCite Yellow Flag
Distinguished by Gazzola v. County of Nassau, E.D.N.Y., June 23,
2022
2019 WL 4754326
Only the Westlaw citation is currently available.
United States District Court, E.D. New York.
John GLEESON in His Own Right and as Co-
Administrator of the Estate of John P. Gleeson,
Deceased, Margaret Gleeson in Her Own Right and
as Co-Administrator of the Estate of John P. Gleeson,
Deceased, Donna Dempsey on behalf of and as the
Natural Parent and Guardian of (he Property of both
E.A.G., an Infant, and J.P.G., an Infant, Plaintiffs,
v.
COUNTY OF NASSAU, Nassau County Correctional
Center, Nassau County Sheriff's Department, Michael
J. Sposato Individually and as Sheriff of Nassau
County, Armor Correctional Health Services, Inc.,
Armor Correctional Health Services of New York,
Inc., Nassau County Corrections Officers, “John Does
1-10” in their Individual and Official Capacities,
Armor Correctional Health Services, Inc. Employees
and Agents, “John and Jane Does 11-20” in (heir
Individual and Official Capacities, Defendants.
15-CV-6487 (AMD) (RL)
|
Signed 09/30/2019
Attorneys and Law Firms
James A. Pascarella, The Pascarella Law Firm PLLC,
Mineola, NY, for Plaintiffs.
Christopher D. Clarke, JoAnne Filiberti, Peter James
Johnson, Jr., Michael Gerard Dempsey, Leahey & Johnson,
P.C., John J. Doody, Jamie Elizabeth Greenfield, Kenneth G.
Gerard, Lewis Brisbois Bisgaard & Smith, LLP, New York,
NY, Liora M. Ben-Sorek, Nassau County Attorney's Office,
Mineola, NY, for Defendants County of Nassau, Nassau
County Sheriff's Department.
Christopher D. Clarke, JoAnne Filiberti, Peter James
Johnson, Jr., Michael Gerard Dempsey, Leahey & Johnson,
P.C., Jamie Elizabeth Greenfield, John J. Doody, Kenneth G.
Gerard, Lewis Brisbois Bisgaard & Smith LLP, New York,
NY, Liora M. Ben-Sorek, Nassau County Attorney's Office,
Mineola, NY, for Defendants Nassau County Correctional
Center, Michael J. Sposato.
Jamie Elizabeth Greenfield, John J. Doody, Kenneth G.
Gerard, Dale Nicholson McLaren, Lewis Brisbois Bisgaard
& Smith LLP, Cathleen Kelly Rebar, Frank V. Kelly,
Stewart Bernstiel Rebar & Smith, New York, NY, for
Defendants Armor Correctional Health Services, Inc., Armor
Correctional Health Services, Inc. Employees and Agents,
"John and Jane Does 11-20".
John J. Doody, Dale Nicholson McLaren, Jamie Elizabeth
Greenfield, Kenneth G. Gerard, Lewis Brisbois Bisgaard &
Smith, LLP, Cathleen Kelly Rebar, Frank V. Kelly, Stewart
Bernstiel Rebar & Smith, New York, NY, for Defendant
Armor Corectional Health Services of New York, Inc.
Jamie Elizabeth Greenfield, John J. Doody, Kenneth G.
Gerard, Lewis Brisbois Bisgaard & Smith LLP, New York,
NY, for Defendant Nassau County Corrections Officers,
"John Does 1-10".
MEMORANDUM & ORDER
ANN M. DONNELLY, District Judge.
*1 The plaintiffs brought this action against Nassau
County, Nassau County Correctional Center (“NCCC”),
Nassau County Sheriff's Department, Nassau County Sheriff
Michael J. Sposato (collectively the “County defendants”),
Armor Correctional Health Services, Armor Correctional
Health Services of New York (collectively the “Armor
defendants”), and unnamed corrections officers and health
services employees, in connection with the death of John
P. Gleeson, who died while he was detained at the NCCC.
(ECF No. 1.) The plaintiffs—surviving members of Mr.
Gleeson's family—brought federal claims pursuant to 42
U.S.C. § 1983, alleging inadequate medical care under the
Fourteenth Amendment, and state law claims for wrongful
death and intentional infliction of emotional distress. (Id.)
On November 19, 2018, the defendants moved for summary
judgment. (ECF Nos. 57, 60.) For the reasons that follow, the
defendants' motion is granted in part, and denied in part.
BACKGROUND 1
1. Medical Services at the NCCC
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The NCCC is a correctional facility operated by the Nassau
County Sheriff's Department, an agency of Nassau County.
(ECF No. 69), Pls.' 56.1 Counter-Statement in Response to
County defendants (“Pls.' 56.1 (County)” ¶¶ 2-3.) 2 Between
1999 and 2000, the United States Department of Justice
(“DOJ”) investigated conditions at the NCCC. (Id. ¶¶ 20-21.)
On September 11, 2000, the DOJ found that the NCCC was
deliberately indifferent to its inmates' medical and mental
needs, and that corrections officers at the NCCC had a
practice of using excessive force. (Id. ¶ 22.) The DOJ sued
Nassau County in this Court on April 22, 2002. (Id. ¶ 23.)
The parties entered into a settlement agreement the same
day, dismissing the case subject to the County's compliance
with certain terms to improve conditions at the NCCC. (Id.
¶ 23-25.)
*2 The settlement agreement included specific policies and
programs that the NCCC would develop and implement to
improve inmate health care, including: (i) written medical
policies, procedures, and protocols relating to initial health
assessments, sick calls, emergency care, and medical records
(Id. ¶ 28); (ii) new inmate health screenings that included the
inmates' input about their medical history, current medication,
allergy information, and immunization history (Id. ¶ 29); (iii)
a written chronic care disease management program (Id. ¶ 34);
and (iv) a written functional quality improvement program
that included self-evaluations, recommendations for clinical
guidelines, and internal peer reviews (Id. ¶ 38). To implement
the quality improvement program, the NCCC was required to
establish a Quality Improvement Committee (“QIC”) chaired
by a physician. (ECF No. 74-1, ¶¶ 55-56.) The terms of the
settlement required the QIC to have ten monthly meetings
each year to “review the status of health care provided to
inmates,” and to report its work to the Sheriff each month.
(Id.)
On May 5, 2008, the parties filed a stipulation to dismiss
the case because of the NCCC's substantial compliance with
the settlement agreement. (Id. ¶ 53.) The Honorable Leonard
Wexler “so ordered” the stipulation of dismissal on March 20,
2008. (Id. ¶ 55.)
2. The NCCC's Contract with Armor
On July 20, 2009, the County sought proposals from third-
party organizations to provide medical, behavioral, and dental
health care at the NCCC. (Id. ¶ 56.) The County's request
specified that bidders must meet the standards of all DOJ
settlement agreements. (Id. ¶¶ 57-62.)
On October 13, 2009, the Armor defendants 3 submitted a
bid in which they acknowledged and agreed to meet the
standards of the settlement agreement, adding that Armor
“had experience complying with DOJ requirements having
inherited a situation ... in which the DOJ cited the facility and
the former healthcare provider.” (Id. ¶¶ 64, 67.) A committee
that included representatives from the County's Office of
Management and Budget, Department of Health, Office of
Mental Health, the Sheriff's Department, and the County
Attorney's Office evaluated Armor's proposal, and gave it the
highest score of the six other proposals. (Id. ¶¶ 85-87.) Armor
and the NCCC entered into a proposed contract on March 18,
2011. (Id. ¶ 88.)
Pursuant to the contract, Armor agreed to provide services
consistent with the standards established by the settlement
agreement. (Id. ¶ 90.) Armor agreed, for example, to “develop
and maintain a chronic care disease management program,
consistent with nationally accepted disease guidelines[,]” (id.
¶ 96), and to “perform medical and mental health intake
screenings within four hours of an inmate's admission to the
NCCC.” (Id. ¶ 93.) The contract also expressly incorporated
the services outlined in Armor's contract proposal (id. ¶
90), which included plans to install an electronic medical
records system (ECF No. 57-3, Armor Contract 2011-2013
(“2011 Armor Contract”) at 92, 228-31) and a protocol for
approving referrals to offsite specialists (id. at 194-97). In
its cost proposal, Armor allocated $78,688 of the contract
cost for the installation of the electronic medical records
system in the first year of the contract. (Id. at 92.) Armor
represented that it emphasized “medical necessity” when
it screened requests for offsite treatment; according to
Armor, its process reduced “unnecessary offsite trips” and
resulted in “substantial savings in security costs and NCCC
overhead.” (Id. at 194-97.) Under Armor's protocol, an Armor
clinician initiated the process by submitting a specialist's
request form to Armor's Director of Utilization Management
and Medical Director of Utilization Management, both of
whom were in Florida. (Id.) The directors reviewed the
request to determine whether it was a “medical necessity” and
either approved it or deferred it to be reevaluated within 30
days. (Id.)
*3 On April 18, 2011, the proposed contract was submitted
to the Rules Committee of the Nassau County Legislature
for approval. (Pls.' 56.1 (County) ¶ 106.) Michael Golio,
Commanding Officer of the Sheriff's Department's Legal Unit
at the NCCC, spoke in favor of the proposed contract, and
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highlighted its accountability and high standards of care: “The
second part of this contract is the care standards, and that's
why we have the performance indicators, the performance
measurements, and the financial penalties. We don't have
anything of that sort currently with [the Nassau University
Medical Center].” 4 (Id. ¶ 110.) The Rules Committee
approved the contract and, on May 5, 2011, the Nassau
County Executive signed the contract with Armor. (Id. ¶¶
112-13.)
On June 11, 2011, only eleven days after Armor began
providing medical care at the NCCC, an inmate, Roy
Nordstrom, died of an acute myocardial infarction. (ECF
No. 71-31.) On September 18, 2012, the New York State
Commission of Correction's Medical Review Board 5 issued
a report addressed to Sheriff Sposato and copied to Edward P.
Mangano, who was the Nassau County Executive at the time.
The Medical Review Board concluded that Mr. Nordstrom
died as a result of “grossly incompetent” medical care,
and issued the following directive to the Nassau County
Executive:
The Office of the Nassau County
Executive shall conduct an inquiry
into the fitness of Armor Correctional
Health Services, Inc. as a correctional
medical care provider in the Nassau
County Correctional Center. Specific
attention shall be directed to Armor's
flagrant disregard of New York State
Education Law, of the Rules of the
Board of Regents, and of New York
State nursing practice regulations, to
wit, staffing unsupervised Licensed
Practical Nurses at the Correctional
Center who engaged in nursing
practice beyond the scope of their
licensure and in unlawful medical
practice, who failed to consult with
and refer to a physician in a
medical emergency, and who failed to
hospitalize a critically ill patient.
(Id. at 9.)
The County's two-year contract with Armor expired on May
31, 2013. (Pls.' 56.1 (County) ¶ 114.) On August 1, 2013, the
County extended its contract with Armor to run until May 31,
2015. (Id. ¶ 119.)
3. John Gleeson's Medical History
Mr. Gleeson, 40 years old at the time of his death, had a
history of hereditary angioedema. He went to the hospital
for swelling beginning in 2002, and was diagnosed with
hereditary angioedema in 2007 or 2008. (ECF No. 57-11,
Margaret Gleeson Dep. (“M.G. Dep.”), 105:6-16, 107:8-11.)
Hereditary angioedema, which typically results from a
quantitative or functional deficiency of the C1 esterase
inhibitor protein, is a disorder that causes recurrent, severe
swelling in the extremities, gastrointestinal tract, face, throat,
and airways. (ECF No. 71-6, ¶ 10.) Left untreated, the airway
swelling can lead to asphyxia and death. (Id.)
Mr. Gleeson took prednisone (a steroid) and Benadryl (an
antihistamine) for his angioedema. (M.G. Dep. 123:8-22.)
If the swelling moved from his hands to his chest or
neck—which was more serious—Mr. Gleeson went to the
emergency room. (Id.) His mother estimated that he went to
the emergency room about ten times for angioedema. (Id.
109:4-10.)
4. John Gleeson's Incarceration and Death at the NCCC
*4 In May of 2014, Mr. Gleeson was arrested for stealing
scrap metal wire. On May 28, 2014, a Nassau County grand
jury charged him with burglary in the third degree. (Pls.' 56.1
(County) ¶ 120.) Mr. Gleeson was admitted to the NCCC the
following day, May 29, 2014, where he was held as a pretrial
detainee until his death on July 14, 2014. (Id. ¶ 121.); see
also (Pls.' 56.1 (Armor) ¶¶ 4, 9.) In a health assessment on
the day he was admitted, Mr. Gleeson reported asthma as his
only significant illness, and that Flexeril (a muscle relaxant)
and Percocet (pain medication) were his only medications. 6
(ECF No. 62-1, Armor Medical Records, at 5.) 7 Mr. Gleeson
did not disclose that he had hereditary angioedema during the
assessment.
On June 10, 2014, Mr. Gleeson filled out a sick call request
form, complaining that his arm was swollen and that he had
“some kind of reaction.” (Id. at 13.) A nurse visited him
that night and noted on the call form that his swollen arm
was “chronic.” (Id.) A physician's assistant (“PA”) saw Mr.
Gleeson the next day; Mr. Gleeson had difficulty breathing,
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pain and difficulty swallowing, and swelling in his left
shoulder, neck, and throat. (Id. at 29.) The PA treated Mr.
Gleeson with a nebulizer, prednisone, and Benadryl, and
noted “R/O angioedema” on the urgent care assessment form.
(Id.) On a chronic care clinic form completed the same day,
the PA wrote the following in the section for assessing Mr.
Gleeson's conditions: “asthma, HTN, ? angioedema.” (Id. at
61.) (question mark in the original).
On June 17, 2014, Mr. Gleeson went to the medical unit,
complaining of swelling in his hands, arms, trunk, legs, knees,
and other parts of his body. (Id. at 28.) Dr. Sanchez saw him,
and ordered a blood-draw to test for an “autoimmune disease”
and the levels of C1 esterase inhibitor in his blood. (Id.) Mr.
Gleeson returned to Dr. Sanchez a week later, on June 24,
2014, so that the doctor could examine swelling in his right
upper extremity and to discuss the results of the blood tests.
(Id. at 27.) Dr. Sanchez ordered a re-draw of the C1 Esterase
test—the original specimen was not frozen as required by
laboratory protocol 8 —and wrote “Rheumatology consult”
on Mr. Gleeson's progress note. (Id.) On July 1, 2014, a PA
saw Mr. Gleeson for an “Urgent Care Assessment” because
of swelling on both sides of his neck; once again, the PA
prescribed prednisone and Benadryl. (Id. at 26.) On the
assessment form, under “known medical conditions of [the]
patient,” the PA listed “asthma, HTN, [and] recurrent episodes
of edema ...” (Id.) A separate note on the form reads “Rheum
consult.” (Id.)
Mr. Gleeson spoke frequently with his mother throughout
his incarceration. (Id. ¶ 126.) Although neither of them
mentioned angioedema specifically, they did discuss his
recurring problems with swelling. (Id. ¶¶ 128-132.) Ms.
Gleeson had known of her son's angioedema diagnosis since
2007 (M.G. Dep. 105:6-16, 107:8-11), but did not mention
the condition in conversations with her son, never urged him
to discuss his condition with doctors, and never tried to speak
with any officials at the NCCC about her son's condition. (Pls.'
56.1 (County) ¶¶ 132, 135); (Pls.' 56.1 (Armor) ¶ 11.) On July
1, 2014, Mr. Gleeson told his mother that his neck and throat
“swelled up again ... huge today,” and that he had been given
Benadryl. (ECF No. 57-12, CD of Recorded Phone Calls,
710A20JQ, 4:36-5:06.) His mother replied, “Why don't they
send you to the hospital for God's sake?” (Id.) Mr. Gleeson
said that the doctor told him that he was “on the list to see
a different doctor.... a rheumatologist.” (Id.) Ms. Gleeson
responded, “Ok good, just let them figure it out, let them
worry about it.” 9 (Pls.' 56.1 (County) ¶ 134.)
*5 On July 14, 2014, at 2:40 p.m., Mr. Gleeson complained
to Corrections Corporal Carmine Accordino that his throat
was swollen. (Pls.' 56.1 (County) ¶ 150.) Corporal Accordino
relayed Mr. Gleeson's complaint to Nurse James in the
medical unit, who responded that Mr. Gleeson should fill out
a sick call sheet because the unit was busy. (Id. ¶¶ 151-52.) At
3:00 p.m., Mr. Gleeson complained again about his swollen
throat. (Id. ¶ 153.) Corporal Accordino relayed his message
to the medical unit. (Id.) This time, Nurse James directed
Corporal Accordino to send Mr. Gleeson to the medical unit,
where Mr. Gleeson checked in at 3:10 p.m. (Id. at ¶¶ 153-55.)
According to the urgent care assessment form, Mr. Gleeson
had swelling on his left neck and left hand. (Armor Medical
Records at 23.) Under a section of the form entitled “DX,”
the diagnosis is listed as “R/O hereditary angioedema (C1
esterase).” (Id.) Mr. Gleeson was again prescribed prednisone
and Benadryl. (Id.) He returned to his cell between 3:45 and
4:00 p.m. (Pls.' 56.1 (County) ¶ 155.)
At 8:55 p.m., Mr. Gleeson told Corrections Officer Del Re
that his throat was sore and that he needed to go to the medical
unit. (Id. ¶ 156.) He got to the medical unit at 9:15 p.m., with
redness in his throat and swelling of his left tonsil. (Armor
Medical Records at 22.) The doctor prescribed an antibiotic,
and sent Mr. Gleeson back to his cell at about 9:25 p.m. (Pls.'
56.1 (County) ¶ 158.)
When he returned to his cell, Mr. Gleeson's condition
worsened, prompting fellow inmates to yell for help. (ECF
No. 74-39, ¶ 4.) 10 Fifteen minutes later, at 10:16 p.m., Mr.
Gleeson told Corrections Officer Rubeanau that he could not
breathe. (Pls.' 56.1 (County) ¶ 159.) Officer Rubeanau saw
that Mr. Gleeson had a significantly swollen throat and trouble
breathing, and notified the medical unit of his condition. 11
(Id. ¶¶ 160-61.) Corrections Officer Cavanaugh escorted Mr.
Gleeson to the medical unit, and Dr. Sanchez and R.N. Qui
examined him at 10:20 p.m. (Id. at ¶¶ 163-64.) The progress
note from that night states that Mr. Gleeson had a past medical
history of “asthma, hives, angioedema, and HTN.” (Armor
Medical Records at 24.)
The Armor medical team believed that Mr. Gleeson was
suffering from an exacerbation of asthma, and gave him
albuterol with a nebulizer. (Id.) Minutes into the treatment,
Mr. Gleeson stood up, said that he could not breathe, and
collapsed. (Id. at 63.) The Armor medical staff administered
an EpiPen, directed Officer Cavanaugh to call 911, and
initiated CPR treatment until the EMT arrived fifteen minutes
later, at approximately 10:45 p.m. (Id. at 62.) The paramedics
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tried to intubate Mr. Gleeson twice, but were unsuccessful.
(Id.) At 10:56 p.m., the paramedics took Mr. Gleeson
to Nassau University Medical Center, where he died at
approximately 11:20 p.m. (Pls.' 56.1 (County) ¶¶ 167-69.)
5. County Response.
The day after Mr. Gleeson died, July 15, Dr. Marylyn
Martin-Naar, an Armor medical director, filled out a death
summary report. (Armor Medical Records at 65.) Dr. Martin-
Naar wrote that Mr. Gleeson had three diagnoses, including
“R/O Acquired Angioedema.” (Id.) Dr. Martin-Naar also
noted that Mr. Gleeson's treatment plan included prednisone
and Benadryl, and that “next steps” included referrals to a
rheumatologist and allergist to address the patient's “history of
recurrent swelling of body parts.” (Id.) In her initial findings,
Dr. Martin-Naar wrote “low esterase inhibitor level” and that
the “impression was R/O acquired angioedema.” (Id. at 66.)
*6 On October 31, 2014, the Nassau County Office of
the Medical Examiner determined that Mr. Gleeson died
from cardiorespiratory arrest due to laryngeal edema and
angioedema. (Pls.' 56.1 (County) ¶ 174.) A year later, on
September 15, 2015, the Commissioner of the New York
State Commission of Corrections, Dr. Phyllis Harrison-Ross,
published a final report of the Medical Review Board's
investigation into Mr. Gleeson's death. 12 (Id. ¶ 175.) The
report is addressed to Sheriff Sposato, and copied to Norma
L. Gonsalves, the Presiding Officer of the Nassau County
Legislature at the time. (See ECF No. 57-22, New York State
Commission of Correction's Final Report: In the Matter of the
Death of John Gleeson (“NYSCOC Report”).) The Board's
investigation included interviews with medical and prison
personnel, and a review of the relevant medical records. (Id.)
The Board was highly critical of the way that the Armor
medical staff treated Mr. Gleeson:
Gleeson had a history of Hereditary
Angioedema that went unrecognized,
misdiagnosed, and improperly treated
by the medical providers from Armor
Inc. The Medical Review Board has
found that Armor Inc.’s delivery
of healthcare in this matter was
incompetent and deficient due to
a lack of adequate protocol, lack
of coordination, lack of effective
communication, and deficient medical
knowledge by the physicians and
midlevel clinicians. This was
compounded by a healthcare record
that was unorganized, incomplete,
and in selected sections illegible.
The Medical Review Board finds
that Armor Inc., in its contracted
locations in New York State, has
engaged in a pattern of inadequate and
neglectful medical care and questions
their ability to meet and provide for
the healthcare needs of jail inmates.
Had John Gleeson been provided with
competent medical care by Armor Inc.
in a timely manner, been properly
referred to a specialist, received a
correct diagnosis, and received proper
medical treatment, his death may have
been prevented.
(Id. ¶ 1.)
The Board was especially critical of the Armor medical staff's
failure to refer Mr. Gleeson to a specialist, once it became
clear that its treatments were ineffective:
After four separate clinical encounters
with unresolved angioedema with
an unknown etiology and refractory
to provided treatment, a referral to
a specialist (Rheumatologist) should
have been of highest priority. The
Medical Review Board finds that
the medical providers of Armor
Inc. at the NCCC lacked the
clinical knowledge to recognize
that Gleeson was symptomatic of
Hereditary Angioedema and continued
him on an ineffective course of
treatment including antihistamines and
steroids. Hereditary Angioedema will
not respond to therapy including
steroids and antihistamines ... Had
Gleeson been appropriately referred
to a specialist, received a correct
diagnosis, and received the proper
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treatment, his terminal event may have
been prevented.
(Id. ¶ 13.)
The Board ended the report with specific recommendations:
• that Armor establish an organized and uniform health
record system for inmate health and mental care;
• that Armor utilize a system that assigns a single case
manager for each inmate's care; and
• that Armor conduct a quality review of the care it
gave Mr. Gleeson, with particular focus on “[w]hy
a referral to a specialist (rheumatology) was not
expedited for Gleeson ...?” “[w]hy medical staff did
not consider an immediate transfer to a hospital for
Gleeson after repeated complaints of edema ...?” and
“[w]hy medical providers failed to recognize that the
prescribed medications would be ineffective, failed to
obtain an accurate C1 Esterase reading ... and failed to
recognize current medications may actually be trigger
mechanism?”
*7 (Id. at 7-8.)
The Board also directed the Nassau County Legislature to
investigate whether Armor was fit to serve as a correctional
medical care provider, with “[s]pecific attention ... to Armor's
pattern of failing to properly manage patients' chronic medical
needs, failing to maintain proper and organized patient
records, and failing to provide hospitalization for patients
when clinically indicated.” (Id.)
Nevertheless, in mid-2015, the County entered into another
two-year contract extension with Armor, from June 1, 2015,
to May 31, 2017. (Pls.' 56.1 (County) ¶ 211.)
On October 17, 2016, the Nassau County Office of the
Comptroller issued a review of Armor's and the County's
performance under the contract. (ECF No. 71-4, Comptroller
Report.) 13 The Comptroller found that Armor's manual
records system was inadequate, inefficient, and error prone,
that it had high nursing and doctor turnover, and that
it failed to document required background and reference
checks. (Id. at ii.) The Comptroller underscored the Medical
Review Board's finding that Armor was responsible for five
inmate deaths at the NCCC from 2011 to 2015, and the
Board's direction in the last three reports that Armor pay
“specific attention” to its “pattern of failing to properly
manage patients' chronic medical needs ...” (Id. at 20-26.)
The Comptroller recommended that Armor computerize its
records and “strengthen its quality control process to assure
medical forms are completed thoroughly and are signed, dated
and legible.” (Id. at ii.) The Comptroller also recommended
that Armor “take immediate steps to hire and retain a quality
medical staff.” (Id.)
The Comptroller also found that the NCCC “failed to provide
adequate oversight to ensure that Armor was in compliance
with its contract with the County.” (Id.) The NCCC did not
have a medical professional on staff to oversee Armor despite
the contractual agreement for a Health Care Administrator,
who was to “oversee administration and monitor compliance
with this agreement on behalf of the County[.]” (Id. at
8-9) (quoting 2011 Armor Contract at 12.) The Sheriff's
Department designated a registered nurse as the Health
Contract Administrator; the nurse left in August of 2013,
after which the position remained vacant until 2016. 14 (Id.)
Moreover, New York State Correction Law required that the
Board of Supervisors of Nassau County appoint a “reputable
physician authorized to practice medicine as physician” to
the NCCC. (Id.) (citing N.Y. Correct. Law § 501 (McKinney
2019).) The “County Physician,” like the Health Contractor
Administrator, was to oversee “Armor's work and the medical
care provided to the Correctional Center's patients.” (Id.) The
NCCC did not have a County Physician at any point during
the Armor contract. (Id.) The contract also required Armor to
submit monthly reports to the Health Contract Administrator
measuring the quality and quantity of its services. (2011
Armor Contract § 4.) The Assistant Attorney General's
affirmation, (ECF No. 71-17), discussed below, found that
Armor's reports did not include data on approximately half of
the twenty-four indicators required by the contract, including
medical sick call statistics, mental health statistics, and initial
assessment statistics. (Id. ¶ 33.)
*8 Because of its lack of oversight, the NCCC failed “to
assess performance indicators and assess associated penalties
as provided for in the contract[.]” (Comptroller Report at ii.)
Indeed, the County assessed no penalties on Armor during
the contract period—despite negotiating for 27 different
performance indicators and several tiers of penalties. (Id.
at 16-17.) Most critically, the County did not fine Armor
$155,000 (the highest penalty provided for in the contract) for
its failure to achieve NCCHC accreditation. 15 Instead, the
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County waived the requirement, without seeking the County
Executive's approval. (Id. at 16.)
In 2016, the State of New York sued Armor, alleging
that it had provided substandard medical care to inmates
at the NCCC and the Niagara County Jail. 16 People v.
Armor Correctional Health Medical Services, Index No.
450835/2016. The parties eventually settled the case, and
Armor agreed “not to bid on or enter into any contract
with any municipality in New York State for the provision
of jail health services” for a three-year period. (ECF
No. 80-3, ¶ 13.) Dorothea Caldwell-Brown, an Assistant
Attorney General, submitted the results of her investigation
in a sworn affirmation. 17 (ECF No. 71-17, Affirmation
of Assistant Attorney General Dorothea Caldwell-Brown
(“AAG Affirmation”).) The investigation “revealed that
Armor did not meet its contractual obligations, as evidenced
by its inadequate self-auditing and continuous quality
improvement processes, deficient sick call, deficient medical
and mental health services, inadequate referrals to specialists,
failure to maintain accurate and complete medical records and
inadequate staffing.” (Id. ¶ 11.) According to the affirmation,
the Medical Review Board had found that five deaths between
2011 and 2015 at the NCCC, including Mr. Gleeson's,
involved “egregious lapses in medical care.” (Id. ¶ 9.)
The affirmation cited Mr. Gleeson's death as emblematic
of Armor's “clear reluctance to send inmates for outside
specialty care even when the inmates' medical condition
cries out for attention often as assessed by Armor's own
clinicians at NCCC.” (Id. ¶¶ 150-162.) According to the
affirmation, Armor's medical records demonstrated that “an
Armor clinician referred [Mr. Gleeson] to a rheumatologist
on two separate occasions” but that “Armor never ensured
that the rheumatologist referral actually take place.” (Id. at ¶
162.) Armor's self-audits, the investigation found, reflected
“a consistent pattern of inappropriate and failed practices
relating to referrals to off-site specialists,” including frequent
failures to render a decision to deny or approve the request.
(Id. at ¶¶ 153-57.)
*9 The County paid Armor $49.7 million from June 1, 2011
through December 31, 2015. (Comptroller Report at i.) In
March of 2016, the County issued a new RFP for medical
services at the NCCC. (Id.)
LEGAL STANDARD
Summary judgment is appropriate only if the parties'
submissions, including deposition transcripts, affidavits, or
other documentation, show that there is “no genuine dispute
as to any material fact,” and the movant is “entitled to
judgment as a matter of law.” Fed. R. Civ. P. 56(a); see
also Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48
(1986). The movant has the burden of showing the absence of
any genuine dispute as to a material fact. McLee v. Chrysler
Corp., 109 F.3d 130, 134 (2d Cir. 1997) (citation omitted).
A fact is “material” when it “might affect the outcome of
the suit under the governing law,” and an issue of fact is
“genuine” if “the evidence is such that a reasonable jury
could return a verdict for the nonmoving party.” Barlow
v. Male Geneva Police Officer Who Arrested Me on Jan.
2005, 434 F. App'x 22, 25 (2d Cir. 2011) (internal citations
omitted). Once the moving party has met its burden, the
party opposing summary judgment must identify specific
facts and affirmative evidence that contradict those offered by
the moving party to demonstrate that there is a genuine issue
for trial. Ethelberth v. Choice Sec. Co., 91 F. Supp. 3d 339,
349 (E.D.N.Y. 2015) (citing Celotex Corp. v. Catrett, 477 U.S.
317, 324 (1986)).
DISCUSSION
I. The Plaintiffs' Section 1983 Claim
To prevail on a Section 1983 claim, a plaintiff must establish
that a person acting under color of state law deprived him
of a federal right. Thomas v. Roach, 165 F.3d 137, 142
(2d Cir. 1999) (citing 42 U.S.C. § 1983). A municipality is
subject to liability for damages under Section 1983 for the
unconstitutional acts of its employees “where ... the action
that is alleged to be unconstitutional implements or executes a
policy statement, ordinance, regulation, or decision officially
adopted and promulgated by [the municipality's] officers.”
See Monell v. Dep't of Soc. Servs., 436 U.S. 658, 690 (1978).
The essence of the plaintiffs' claims is that Mr. Gleeson
died as a result of deliberate indifference on the part of
medical staff and prison officials at the NCCC, and that the
defendants are liable for Mr. Gleeson's death because they
had a policy or custom of delivering inadequate healthcare
to NCCC inmates, which caused Mr. Gleeson's death. In
seeking summary judgment, the defendants argue that the
NCCC medical staff and prison officials were not deliberately
indifferent to Mr. Gleeson's health. They say that they cannot
be held liable even if Mr. Gleeson's death resulted from
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deliberate indifference because there was no policy or custom
to provide inadequate healthcare.
a. Deliberate Indifference
“To establish a constitutional claim arising out of inadequate
medical care, an inmate must prove that prison or jail officials
were deliberately indifferent to his serious medical needs.”
Gomez v. County of Westchester, 649 Fed. Appx. 93, 95 (2d
Cir. 2016) (citing Smith v. Carpenter, 316 F.3d 178, 183
(2d Cir. 2003)). A pretrial detainee's claims of inadequate
medical care are governed by the Due Process Clause of the
Fourteenth Amendment, rather than the Cruel and Unusual
Punishments Clause of the Eighth Amendment. See generally
Darnell v. Pineiro, 849 F.3d 17, 29 (2d Cir. 2017) (citation
omitted); Iancovangelo v. Correctional Medical Care, Inc.,
624 Fed. Appx. 10, 12 (2d Cir. 2015) (citation omitted).
*10 Under the Fourteenth Amendment, a plaintiff's claim
for deliberate indifference to a serious medical need is
analyzed under a two-part test. “First, the alleged deprivation
of adequate medical care must be ‘sufficiently serious.’ ”
Grimmet v. Corizon Med. Asssocs. of N.Y., No. 15-CV-7351,
2017 WL 2274485, at *3 (S.D.N.Y. May 24, 2017) (quoting
Spavone v. N.Y. State Dep't of Corr. Servs., 719 F.3d 127,
138 (2d Cir. 2013)). “Second, the defendant must have acted
with deliberate indifference, or a ‘sufficiently culpable state
of mind.’ ” Id. (quoting Chance v. Armstrong, 143 F.3d 698,
702 (2d Cir. 1998)).
i. Sufficiently Serious Deprivation
I first decide whether the Mr. Gleeson experienced a medical
deprivation that was “sufficiently serious.” There must be
an actual “deprivation of adequate medical care,” that is, a
failure by prison officials “to take reasonable measures” in
response to a medical condition. Salahuddin v. Goord, 467
F.3d 263, 279-80 (2d Cir. 2006) (quoting Farmer v. Brennan,
511 U.S. 825, 844-47 (1994)). Second, the deprivation
must be “sufficiently serious.” Id. at 280. Because “the
objective component of an Eighth Amendment [or Fourteenth
Amendment] claim is necessarily contextual and fact specific,
the serious medical need inquiry must be tailored to the
specific circumstances of each case.” Smith v. Carpenter, 316
F.3d 178, 185 (2d Cir. 2003) (internal quotation marks and
citation omitted). If the unreasonable medical care “is a failure
to provide any treatment for an inmate's medical condition,
courts examine whether the underlying medical condition is
sufficiently serious,” Salahuddin, 463 F.3d at 280, such as the
existence of “a condition of urgency, one that may produce
death, degeneration, or extreme pain.” Arriaga v. Gage, No.
16-CV-1628, 2018 WL 1750320, at *6 (S.D.N.Y. Apr. 6,
2018) (quoting Hill v. Curcione, 657 F.3d 116, 122 (2d Cir.
2011) (citation omitted)). If a plaintiff alleges that the prison
provided inadequate care—rather than a failure to provide any
treatment—the inquiry focuses on “the particular risk of harm
faced by a prisoner due to the challenged deprivation of care,
rather than the severity of the prisoner's underlying medical
condition, considered in the abstract[.]” Smith, 316 F.3d at 185
(citing Chance v. Armstrong, 143 F.3d 398, 702-03 (2d Cir.
1998)).
The defendants do not dispute that Mr. Gleeson suffered from
a serious illness—hereditary angioedema—which causes
recurrent attacks of severe swelling in the extremities,
gastrointestinal tract, face, and airways. The disorder can
be fatal when left untreated, particularly if the swelling
has spread to the patient's neck and airway. Although
the record does not show that Mr. Gleeson alerted the
medical staff that he had hereditary angioedema, he made
frequent complaints of his symptoms—including recurrent
swelling and shortness of breath—to the medical staff. In
four visits to the medical unit, Mr. Gleeson's symptoms of
hereditary angioedema were progressively more serious, but
the staff gave him the same treatment—a steroid and an
antihistamine. Moreover, although the records reflect that
medical personnel thought he should see a rheumatologist,
Mr. Gleeson never saw a rheumatologist or any specialist. The
New York State Commission of Corrections concluded that
this treatment was plainly inadequate, criticizing Armor for
continuing Mr. Gleeson on an “ineffective course of treatment
including antihistamines and steroids” when “a referral to
a specialist (Rheumatologist) should have been of highest
priority.” (NYSCOC Final Report, ¶ 13.)
*11 In my view, the plaintiffs have raised a triable issue of
material fact about whether medical officials at the NCCC
responded adequately to Mr. Gleeson's serious medical needs.
See Johnson v. Wright, 234 F. Supp. 2d 352, 360 (S.D.N.Y.
2002) (“The fact that a plaintiff received regular medical
care does not preclude a finding of deliberate indifference
where the course of treatment was largely ineffective and the
defendant declined to do anything more to attempt to improve
the plaintiff's situation.”) (quotation marks and citations
omitted).
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ii. Sufficiently Culpable State of Mind
The second element of a Fourteenth Amendment claim
for inadequate medical care is that the defendant acted
with “deliberate indifference” to the inmate's medical care.
Salahuddin, 467 F.3d at 280 (citation omitted). In Darnell v.
Pineiro, 849 F.3d 17, 32-36 (2d Cir. 2017), the Second Circuit
held that a pretrial detainee need not demonstrate subjective
awareness on the part of the official in a condition-of-
confinement case. Since Darnell, district courts in this circuit
have held that a pretrial detainee in a medical inadequacy
case may establish deliberate indifference objectively. 18 See
Richardson v. Correctional Medical Care, Inc., No. 17-
CV-0420, 2018 WL 1580316, at *4 (N.D.N.Y. Mar. 28, 2018)
(collecting cases); Lloyd v. City of New York, 246 F. Supp.
3d 704, 718-19 (S.D.N.Y. Mar. 31, 2017) (“After Darnell,
deliberate indifference is now defined objectively ... rather
than ask whether the charged official knew of and disregarded
an excessive risk to inmate health or safety, courts are to
instead determine whether the official knew, or should have
known that his or her conduct posed an excessive risk to
health or safety.”) (quotation marks and citation omitted). A
pretrial detainee suing for deliberate indifference under the
Fourteenth Amendment, is “required to show only that the
prison official acted with objective recklessness, or that the
defendant ‘knew or should have known’ that ‘an excessive
risk to health or safety’ would result.” Grimmet, 2017 WL
2274485, at *4 (quoting Darnell, 849, F.3d at 35). “As before,
however, more than negligence is required to hold a defendant
liable for violating” the Fourteenth Amendment. Id.
The plaintiffs have raised a triable issue of material fact
about whether the medical officials knew or should have
known about Mr. Gleeson's angioedema and the risks it
posed to his health. Although Mr. Gleeson did not disclose
that he had angioedema during his initial health assessment,
doctors suspected almost immediately that angioedema was
responsible for his swelling episodes. In fact, a physician's
assistant noted angioedema as a possible diagnosis after Mr.
Gleeson's first interaction with the medical staff. (Armor
Medical Records at 61.) After his second visit to the
medical unit, Dr. Sanchez ordered blood tests to measure
Mr. Gleeson's levels of the C1 esterase inhibitor, a protein
responsible for hereditary angioedema. (Id. at 27-28.) On the
day of his death, Mr. Gleeson reported to the medical unit
twice with neck swelling and redness in his throat; doctors
again noted the possibility of hereditary angioedema, but
sent him back to his cell with the same ineffective treatment
of steroids and antihistamines. (Id. at 23.) According to the
progress note from that day, Mr. Gleeson had a past medical
history of “asthma, hives, angioedema, and HTN.” (Id. at 24.)
Given their suspicions of hereditary angioedema, the doctors
knew, or should have known, that Mr. Gleeson's symptoms
were indicative of a potentially fatal condition. A reasonable
jury could find that their failure to act amounted to deliberate
indifference.
b. Parties Responsible for the Deliberate Indifference
*12 The “personal involvement of defendants in alleged
constitutional deprivations is a prerequisite to an award of
damages under § 1983.” Wright v. Smith, 21 F.3d 496, 501
(2d Cir. 1994) (citations omitted). However, a municipal
government, or a private entity acting under color of state
law, Bektic-Marrero v. Goldberg, 850 F. Supp. 2d 418, 432
(S.D.N.Y. 2012), can be liable for the unconstitutional acts
of its employees if the plaintiff can prove the existence of
a municipal policy or custom that caused the constitutional
violation. Monell, 436 U.S. at 690-91.
The only individuals named by the plaintiffs are “John
Does 1-10”—corrections officers at the NCCC (ECF No.
1 ¶ 52), “John and Jane Does 11-20”—physicians, nurses,
physician's assistants, and nurse practitioners employed by
Armor (Id. ¶ 53), and Sheriff Michael J. Sposato. The
plaintiffs assert Monell liability against the County of Nassau,
the NCCC, the Nassau County Sheriff's Department, Armor
Correctional Health Services, Inc., and Armor Correctional
Health Services of New York.
The Armor defendants argue that the plaintiffs cannot
sustain a Section 1983 action against “John Doe” and “Jane
Doe” defendants at this point in the case. The County
defendants argue that the claims against Sheriff Sposato
should be dismissed because the complaint does not include
sufficient allegations about his personal involvement in the
constitutional violation. The County defendants also argue
that the Court should dismiss claims against the NCCC
and the Sheriff's Department because both are non-suable,
administrative arms of the County of Nassau. Finally, all
defendants argue that they cannot be held liable for Mr.
Gleeson's death because the plaintiffs have not demonstrated
the existence of a policy or practice that caused the
constitutional violation.
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i. John Doe and Jane Doe Defendants
The defendants move for summary judgment as to the Section
1983 claims against the John Doe and Jane Doe defendants
because they have not been identified, and any effort to name
them now as defendants would be time-barred. The plaintiffs
respond that the identities of the specific employees who
personally inflicted the constitutional injuries are “irrelevant”
because the entity defendants are responsible pursuant to
Monell. (ECF No. 73 at 4.) In other words, the plaintiffs do
not intend to press their claims against the individual doctors,
nurses, corrections officers, and other staff at the NCCC
responsible for Mr. Gleeson's constitutional injuries.
On January 17, 2017, Magistrate Judge Arlene R. Lindsay set
a February 23, 2017 deadline for any request to join additional
parties or amend the pleadings. Nevertheless, even though
they learned the identities of relevant county and Armor
employees through document discovery, (see, e.g., Armor
Medical Records), the plaintiffs have not sought to amend the
complaint to name the “John Doe” corrections officers or the
“John and Jane Doe” employees of Armor.
The applicable statute of limitations period in New York is
three years for a Section 1983 action, Smith v. Campbell, 782
F.3d 93, 100 (2d Cir. 2015) (citation omitted), and the statute
of limitations begins to run once the plaintiff knows of the
injury on which its claim is based. See Cornwell v. Robinson,
23 F.3d 694, 703 (2d Cir. 1994). The plaintiffs learned of
Mr. Gleeson's death on July 14, 2014. Because substituting a
named party for a John Doe defendant does not “relate back”
to the complaint under Rule 15(c)(3), Sepulveda v. City of New
York, No. 01-CV-3117, 2003 WL 22052870, at *2 (S.D.N.Y.
Sept. 2, 2003), the plaintiffs' Section 1983 claims against the
“John Doe” and “Jane Doe” defendants are dismissed as time-
barred. See, e.g., Vineyard v. County of Nassau, 329 F. Supp.
2d 364, 369-60 (E.D.N.Y. 2004); Cantave v. New York City
Police Officers, No. 09-CV-2226, 2011 WL 1239895, at *8
(E.D.N.Y. Mar 28, 2011).
ii. Sheriff Michael J. Sposato
*13 The defendants argue that the plaintiffs cannot sue
Sheriff Sposato in his individual capacity because the
complaint includes no allegations that Sheriff Sposato was
personally involved in the constitutional deprivation. The
plaintiffs respond that the record reveals numerous examples
of Sheriff Sposato's personal involvement in failing to
supervise Armor's performance. The question for the Court is
whether the plaintiffs have raised a triable issue of fact about
Sheriff Sposato's personal involvement in the constitutional
violations.
A supervisory official will not be found liable under Section
1983 simply by virtue of his “high position of authority.”
Villafane v. Sposato, No. 16-CV-3674, 2017 WL 4179855,
at *12, (S.D.N.Y. Aug. 22, 2017) (quoting Al-Jundi v. Estate
of Rockefeller, 885 F.2d 1060, 1065 (2d Cir. 1989)), report
and recommendation adopted, 2017 WL 4157220 (E.D.N.Y.
Sept. 15, 2017). Rather, a plaintiff in a Section 1983 action
must show that the supervisor was personally involved in a
constitutional violation by either: (1) directly participating in
the violation; (2) failing to remedy the wrong after it comes
to his attention; (3) creating a policy or custom under which
unconstitutional practices occur, or allowing the continuation
of such custom and policy; (4) being grossly negligent
in supervising subordinates who committed the wrongful
acts; or (5) failing to act on information indicating that
unconstitutional acts are occurring. See Colon v. Coughlin, 58
F.3d 865, 873 (2d Cir. 1995). 19
While there is no evidence that Sheriff Sposato participated
directly in the violation (factor one), or was alerted to
Mr. Gleeson's ongoing mistreatment and failed to intervene
(factor two), there are issues of fact precluding summary
judgment as to Sheriff Sposato's personal involvement under
the third, fourth, and fifth factors. Indeed, as Sheriff, he
was entrusted with supervisory responsibility for Armor.
For example, the four final reports from the NYSCOC
in the record are addressed to Sheriff Sposato, and each
faults Armor for egregiously inadequate care. Sheriff
Sposato received one report, before Mr. Gleeson's death,
in which the Commission found that Armor “was grossly
incompetent,” and recommended that the Nassau County
Executive “conduct an inquiry into the fitness of Armor ...
as a correctional medical care provider.” (ECF No. 71-31, at
9.) Furthermore, the Sheriff's Department—headed by Sheriff
Sposato—did not appoint a doctor to be the Health Contract
Administrator from 2011 to 2016, and the nurse who held the
position left in 2013; the Sheriff's Department left the position
completely vacant until 2016, when it appointed an interim
HCA and published job postings for a permanent position.
Finally, the contract required that Sheriff Sposato receive
written reports from the Quality Improvement Committee.
The Attorney General's investigation found that these reports
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failed to include data on approximately half of the twenty-
four indicators required by the contract.
A reasonable jury could find that Sheriff Sposato should have
known about the risk of constitutional violations because he
received the report questioning Armor's fitness as a medical
care provider. 20 Villafane, 2017 WL 4179855, at * 14
(to establish personal involvement under the fourth factor,
“a plaintiff must demonstrate that the defendant knew or
should have known that there was a high degree of risk
that his subordinates would behave inappropriately ... but
either deliberately or recklessly disregarded that risk by
failing to take action that a reasonable supervisor would
find necessary to prevent such a risk ...”) A reasonable
jury could also find that, in the aftermath of the NYSCOC
report, Sheriff Sposato's failure to designate a Health Contract
Administrator, or otherwise monitor or discipline Armor
medical personnel through the tools available to him from the
contract, allowed Armor's practice of inadequate medical care
to continue unabated. Accordingly, the motion for summary
judgment as to Sheriff Sposato in his personal capacity is
denied. 21
iii. NCCC and NCSD
*14 It is well established that neither the Nassau
County Correction Center nor the Nassau County Sheriff's
Department are suable entities. See Joseph v. Nassau Cty.
Corr. Ctr., No. 12-CV-4414, 2013 WL 1702162, at *3
(E.D.N.Y. Apr. 19, 2013) (collecting cases). Rather, they are
administrative arms of Nassau County without a separate
legal identity from the County. Campbell v. Sposato, 15-
CV-1958, 2015 WL 9267222, at *5 (E.D.N.Y. Nov. 17,
2015) (interpreting the Nassau County Charter), report and
recommendation adopted, 2015 WL 9273951 (E.D.N.Y. Dec.
16, 2015). Accordingly, I grant summary judgment in favor
of the NCCC and NCSD, and dismiss them from this action.
iv. Armor
As noted above, a prerequisite to recovery under Section
1983 “is that the alleged constitutional violation be committed
by one acting under color of law.” Bektic-Marrero, 850 F.
Supp. 2d at 426 (citing West v. Atkins, 487 U.S. 42, 48-50
(1988)). “[T]he under-color-of-state-law element of § 1983
excludes from its reach merely private conduct, no matter
how discriminatory or wrongful.” American Mfrs. Mut. Ins.
Co. v. Sullivan, 526 U.S. 40, 50 (1999) (citations and internal
quotation marks omitted).
The parties agree that the Armor defendants “are considered
to be state officials ... [d]espite being privately owned and
operated entities[.]” (ECF No. 60-5, Armor Defs.' Br. at 9);
see also Ryan v. County of Nassau, No. 12-CV-5343, 2016
WL 11500151, at *7 (E.D.N.Y. Mar. 31, 2016) (“Since Armor
was hired to fulfill the state's constitutional obligation to
provide necessary medical care for its inmates, the Court finds
that it was a state actor that can be sued pursuant to Section
1983.”) (citations and internal quotation marks omitted).
“Although the Supreme Court's interpretation of § 1983 in
Monell applied to municipal government and not to private
entities acting under color of state law, case law has extended
the Monell doctrine to private § 1983 defendants acting under
color of state law.” Dilworth v. Goldberg, No. 10-CV-2224,
2011 WL 3501869, at *24 (S.D.N.Y. July 28, 2011), report
and recommendation adopted, 2011 WL 4526555 (S.D.N.Y.
Sept. 30, 2011). Therefore, a private entity acting under color
of state law will be liable for the constitutional violations of
its employees if they resulted from the entity's policies or
customs. Id.
A plaintiff may satisfy the “policy or custom” requirement by
establishing “(1) a formal policy; (2) action taken or decisions
made by policymakers that caused the violation; (3) a practice
so persistent and widespread that it constitutes a ‘custom
or usage;’ or (4) a failure to properly train or supervise
[entity] employees.” Byvalets v. New York City Hous. Auth.,
No. 16–CV–6785, 2017 WL 7793638, at *14 (E.D.N.Y. July
28, 2017), report and recommendation adopted, 2018 WL
1067732 (E.D.N.Y. Feb. 23, 2018) (citing White v. City of
N.Y., 206 F. Supp. 3d 920, 937 (S.D.N.Y. 2016) (citation
omitted)). The plaintiffs posit the existence of both a formal
policy and informal practices at Armor.
For the formal policy, the plaintiffs point to Armor's
requirement that an inmate could see a specialist or visit a
hospital only after an official in Armor's Florida corporate
offices approved the referral, in writing, and within thirty
days of the request. According to the plaintiffs, Mr. Gleeson
died while those necessary referrals were pending approval.
(ECF No. 73, Pls.' Opp. Br. at 11) (“[Dr. Sanchez] made the
request on two separate occasions for the decedent's referral
to a rheumatologist, both well-before John Gleeson's death.
The referral never happened.”). Under the plaintiffs' theory,
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Armor's referral policy prevented Mr. Gleeson from receiving
adequate medical care and resulted in his death.
*15 It is undisputed that Armor followed a protocol that
required clinicians at the NCCC to submit referral requests to
Armor directors in Florida. The record also shows that Armor
clinicians noted in medical records that Mr. Gleeson should
see a rheumatologist for his recurrent swelling. Mr. Gleeson
himself believed that he was “on the list to see a different
doctor.... a rheumatologist.” (ECF No. 57-12, 4:36-5:06.)
It is not clear from the medical records whether doctors
or PAs made a specific referral for Mr. Gleeson to see a
rheumatologist; that is due in large part to the fact that the
records are illegible. Certainly, there are multiple references
to both hereditary angioedema and rheumatologists in the
medical records. Drawing all reasonable inferences in favor
of the plaintiffs, I find that there is a triable issue of fact
as to whether Armor's referral request policy prevented
Mr. Gleeson from seeing a rheumatologist, and caused his
death. 22 Furthermore, a reasonable jury could find that
Armor's woefully deficient record-keeping and its failure to
install an electronic medical records system contributed to
Armor's failure to ensure that the rheumatologist referral
actually took place. 23
The plaintiffs also argue that Armor had informal practices
and customs that caused Mr. Gleeson's inadequate medical
treatment. To prove the third Monell kind of liability—custom
or usage—the plaintiff must establish a longstanding practice
or custom which constitutes standard operating procedure.
Jett v. Dallas Independent School Dist., 491 U.S. 701, 737
(1989). The policy must be “so manifest as to imply the
constructive acquiescence of senior policy-making officials.”
Byvalets, 2017 WL 7793638, at *16 (quoting Sorlucco v.
N.Y.C. Police Dep't, 971 F.2d 864, 871 (2d Cir. 1992)). In
other words, the relevant practice must be “so widespread as
to have the force of law.” Board of County Comm'rs. v. Brown,
520 U.S. 397, 404 (1997) (citations omitted).
The thrust of the plaintiffs' argument is that the Armor
defendants had a widespread and well-settled custom of
providing inadequate medical care to prison inmates. Judges
have defined “widespread” to mean that the unconstitutional
acts in question are “common or prevalent throughout the
[entity]” and “well-settled” to mean that the unconstitutional
acts “have achieved permanent, or close to permanent,
status.” Fowler v. City of New York, No. 13-CV-2372, 2019
WL 1368994, at *14 (E.D.N.Y. Mar. 26, 2019) (quoting
Davis v. City of New York, 228 F. Supp. 2d 327, 346
(S.D.N.Y. 2002)). “There is no ‘magic number’ of instances
of unconstitutional conduct that will suffice to permit the
inference of a broader [entity] policy of custom.” Id. (citations
and internal quotations omitted).
The Comptroller report, AAG affirmation, and NYSCOC
reports about the treatment of inmates Kevin Brown (ECF
No. 71-30), Roy Nordstrom (ECF No. 71-31), and Antonio
Marinaccio (ECF No. 71-32) detail Armor's “egregious
lapses in medical care” and its “pattern” of inadequate care.
Accordingly, the plaintiffs have raised a genuine issue of
material fact as to whether the Armor defendants have a
widespread and well-settled custom of providing inadequate
medical care to prison inmates See Pipitone v. City of New
York, 57 F. Supp. 3d 173, 191 (E.D.N.Y. 2014) (“[T]he
Mollen Report provides powerful evidence that there was
a custom and practice within the police department of
tolerating corruption to avoid bad publicity. It characterizes
this custom as persistent, widespread, and emanating from top
commanders, including the police commissioner. The Mollen
Report thus provides evidence that is sufficient to allow a
jury to conclude that the supervisory and disciplinary failures
described therein constituted a municipal policy for Monell
purposes and that the City's handling of the Eppolito matter
was reflective of that policy.”) (citations omitted).
*16 The cases in which other courts in this Circuit rejected
the findings of a government report as evidence of a policy
or practice involved events that were too far removed from
the plaintiffs' case to be probative of a then-existing policy
or practice. See, e.g. Moses, 2017 WL 4386362, at *12
(DOJ report analyzing excessive force incidents from 2006 to
2007 is “too disconnected in time and personnel to plausible
allege a policy, practice, or custom extant in 2000 so as
to affect [the plaintiff].”); Rodriguez v. City of Westchester,
No. 15-CV-9626, 2017 WL 118027, at *7 (S.D.N.Y. Jan. 11,
2017) (DOJ report written more than six years before the
events in question occurred, and involving different third-
party contractors, was “too stale, and too disconnected in
personnel, to plausibly allege a policy, practice, or custom
extant in 2014 so as to affect [the plaintiff].”); Melvin v.
County of Westchester, No. 14-CV-2995, 2016 WL 1254394,
at *15 (S.D.N.Y. Mar. 29, 2016) (DOJ letter was too remote
in time because it was written more than four years before
the events in question and involved a different third-party
contractor).
This case is different. The Comptroller's report and the AAG's
affirmation detail the same kinds of inadequate medical care,
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the same party (Armor), and the same time frame (2011 to
2014), as the events alleged by the plaintiffs. In fact, the
AAG affirmation cited Mr. Gleeson's death as emblematic of
a subset of Armor's inadequate medical care. Accordingly,
the reports are sufficient to create a jury question regarding
whether Armor had a custom of providing inadequate medical
care that resulted in Mr. Gleeson's death.
v. Nassau County
The County argues as a threshold matter that it cannot be
held liable for any inadequate medical care on the part of the
Armor medical staff because the Armor medical team “made
all the treatment decisions” as the “exclusive medical provider
of the NCCC.” (ECF No. 80 at 2.) Municipalities cannot
shield themselves from liability by delegating inmate medical
care to third-party, private entities. See Gil v. Vogilano, 131
F. Supp. 2d 486, 493 (S.D.N.Y. 2001) (“[A] municipality's
duty to provide medical care to inmates is non-delegable and
is not absolved by contracting with a third party to provide
care.”) (citations omitted). However, that does not mean that
the County is automatically liable for Armor's inadequate
medical care. Only a few courts in this district have held that
respondeat superior is a viable theory of liability in cases
involving the failure to provide adequate medical care. See
e.g. Covington v. Westchester County Jail, No. 96-CV-7551,
1998 WL 26190, at *2-3 (S.D.N.Y. Jan. 26,1998); McNeil
v. Correctional Medical Care, Inc., No. 18-CV-0894, 2019
WL 4415528, at *10 (N.D.N.Y. Sept. 16, 2019). These courts
follow Ancata v. Prison Health Servs. Inc., 769 F.2d 700 (11th
Cir. 1985), a decision that has not been adopted in this Circuit.
I will follow the majority view that there is no respondeat
superior liability for municipalities under Section 1983—
including for inadequate medical care cases involving private
vendors—and that the plaintiffs must identify a “policy” or
“custom” to impose liability on a municipality.
Accordingly, as with the Armor defendants, the plaintiffs
must identify a “policy” or “custom” that caused Mr.
Gleeson's injury in order to impose liability on Nassau
County. The plaintiffs are entitled to establish a “policy” or
“custom” through one of the four methods set forth above.
Here, the plaintiffs argue that the County failed to supervise
Armor. 24
*17 A failure to supervise “may constitute an official policy
or custom if the failure amounts to ‘deliberate indifference’
to the rights of those with whom the city employees interact.”
Wray v. City of New York, 490 F.3d 189, 195-96 (2d
Cir. 2007) (quoting City of Canton v. Harris, 489 U.S.
378, 388 (1989)). To prevail on this theory, the plaintiffs
must demonstrate that “the policymaker was aware of a
subordinate's unconstitutional actions, and consciously chose
to ignore them, effectively ratifying the actions.” Amnesty
America v. Town of West Hartford, 361 F.3d 113, 126 (2004)
(citation omitted). “Thus, where a policymaking official
exhibits deliberate indifference to constitutional deprivations
caused by subordinates, such that the official's inaction
constitutes a ‘deliberate choice,’ that acquiescence ‘may
be properly thought of as a city policy or custom that is
actionable under § 1983.” Id. (quoting City of Canton, 489
U.S. at 388).
To prove such deliberate indifference, “the plaintiff must
show that the need for more or better supervision to
protect against constitutional violations was obvious ...
An obvious need may be demonstrated through proof of
repeated complaints of civil rights violations; deliberate
indifference may be inferred if the complaints are followed
by no meaningful attempt on the part of the municipality to
investigate or to forestall further incidents.” Vann v. City of
New York, 72 F.3d 1040, 1049 (2d Cir. 1995) (internal citation
omitted).
The plaintiffs argue that the County's failure to address the
“rash of inmate deaths at the NCCC since 2011” evinces
deliberate indifference. (ECF No. 70 at 26.) The plaintiffs
point to the NYSCOC reports, which were addressed to
Sheriff Sposato and the Presiding Officer of the Nassau
County Legislature, as evidence of policymakers' notice of
recurring constitutional violations. The County responds that
they were not on notice of Armor's inadequate treatment
because the Comptroller's report and the AAG's affirmation
were issued at least two years after Mr. Gleeson's death.
This defense is not persuasive. The plaintiffs do not argue
that those reports put the County on notice of a pattern of
inadequate health care at the NCCC. Rather, they argue that
the NYSCOC reports provided the requisite notice, and that
the Comptroller's report and the AAG's affirmation confirm
the existence of repeated past issues involving Armor that the
County knew of and ignored.
The record includes one report issued before Mr. Gleeson's
death—In the Matter of the Death of Roy Nordstrom (ECF No.
71-31)—that faults Armor for an egregious lapse in medical
care. The report is addressed to Sheriff Sposato and copied
to Edward P. Mangano, who was then the Nassau County
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Executive. The Medical Review Board concluded that Armor
provided “grossly incompetent” care that contributed to the
Mr. Nordstrom's death from acute myocardial infarction. The
Board issued the following directive to the Nassau County
Executive:
The Office of the Nassau County
Executive shall conduct an inquiry
into the fitness of Armor Correctional
Health Services, Inc. as a correctional
medical care provider in the Nassau
County Correctional Center. Specific
attention shall be directed to Armor's
flagrant disregard of New York State
Education Law, of the Rules of the
Board of Regents, and of New York
State nursing practice regulations, to
wit, staffing unsupervised Licensed
Practical Nurses at the Correctional
Center who engaged in nursing
practice beyond the scope of their
licensure and in unlawful medical
practice, who failed to consult with
and refer to a physician in a
medical emergency, and who failed to
hospitalize a critically ill patient.
(ECF No. 71-31, at 9.)
A reasonable jury could find that the report about Mr.
Nordstrom alerted Nassau County, through its policymakers
Sheriff Sposato and Nassau County Executive Mangano, to a
potentially serious problem of unconstitutional conduct, such
that the need for supervision was “obvious.” 25 See also Cash
v. County of Erie, 654 F.3d 324 (2d Cir. 2011) (based on
a single prior incident of sexual contact between a prisoner
and prison guards, a jury could reasonably conclude that the
municipality was on notice that its policies in that area were
inadequate); Carter v. Broome County, No. 16-CV-422, 2019
WL 3938088, at *9 (N.D.N.Y. Aug. 21, 2019) (“[S]ummary
judgment on a plaintiff's Monell claim is inappropriate if
a fact-finder could find systemic and gross deficiencies in
staffing, facilities, equipment, or procedures in a detention
center's medical care system and that a policy-making official
knows about them and fails to correct them.”) (citation and
quotation marks omitted). Rather than address the obvious
need for closer supervision, the County scaled back its
oversight. For example, the County left the Health Contractor
Administrator position vacant beginning in August 2013,
and assessed no penalties on Armor for contract violations,
including Armor's failure to achieve NCCHC accreditation.
The Comptroller found that the County “failed to provide
adequate oversight to ensure that Armor was in compliance
with its contract with the County.” (Comptroller Report at
ii.) The plaintiffs have raised a genuine issue of material fact
as to whether these failures to supervise Armor amount to
deliberate indifference to the rights of inmates at the NCCC.
II. The Plaintiffs' State Law Claims
a. Wrongful Death
*18 The Armor defendants' motion for summary judgment
on the plaintiffs' wrongful death claim is denied. As discussed
above, there are genuine issues of material fact as to whether
the Armor medical staff acted with “deliberate indifference,”
which is a standard akin to objective recklessness. Grimmet,
2017 WL 2274485, at *4 (quoting Darnell, 849 F.3d at
35). Further, under New York law, “an employer will be
vicariously liable for the acts of his employee when these
acts are within the general scope of his employment, while
engaged in the master's business, and with a view to the
furtherance of that business and the master's interest.” Medley
v. City of New York, No. 94-CV-3708, 1998 WL 938731, at
*3 (E.D.N.Y. Dec. 3, 1998) (citation omitted). Accordingly,
summary judgment cannot be entered in favor of the Armor
defendants because there are triable issues of fact as to
whether the Armor employees acted negligently, and in the
scope of their employment, in causing Mr. Gleeson's death.
See Chong v. N.Y.C. Transit Auth., 83 A.D.2d 546, 547 (N.Y.
App. Div. 1981) (elements of wrongful death claim include:
(1) death of a human being, (2) negligence of a defendant
causing death, (3) survival of distributees suffering pecuniary
loss because of the death, and (4) appointment of a personal
representative of the decedent).
The County defendants' motion for summary judgment on
the plaintiffs' wrongful death claim is also denied. Under
New York law, an entity or hospital may be vicariously
liable for the negligence of independent contractors in certain
circumstances based on a theory of “agency or control in fact,
or apparent or ostensible agency.” See Garofolo v. State, 135
A.D.3d 1108, 1109 (N.Y. App. Div. 2016) (citations omitted).
The “ostensible agency” theory imposes vicarious liability
on an entity defendant for the negligence of an independent
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contractor doctor “when an inmate has reasonably relied upon
the appearance of the doctor's authority created by the words
or conduct of [the entity].” Id. The availability of the theory
depends on “whether the plaintiff could have reasonably
believed, based upon all of the surrounding circumstances,
that the treating physician was provided by the defendant or
was otherwise acting on the defendant's behalf.” Id. at 1110
(alteration omitted) (quoting Soltis v. State of New York, 172
A.D.2d 919, 920 (N.Y. App. Div. 1991)).
Here, the Armor medical staff treated Mr. Gleeson in the
prison facility on multiple occasions. A reasonable jury could
find that Mr. Gleeson could have reasonably believed that the
County employed the-Armor medical staff. Compare Soltis,
172 A.D.2d at 920 (the fact that the plaintiff was treated at the
state facility, with the assistance of state officials, precluded
summary judgment as to the state's vicarious liability for the
negligence of the independent contractor), with Garofolo, 135
A.D.3d at 1110 (the plaintiff could not reasonably believe
that the doctors were employed by the prison because the
plaintiff's treatments “took place outside of the prison without
the involvement of any prison employees.”) Accordingly,
summary judgment is denied.
b. Intentional Infliction of Emotional Distress
Intentional infliction of emotional distress has four elements:
“(i) extreme and outrageous conduct; (ii) intent to cause,
or disregard of a substantial probability of causing, severe
emotional distress; (iii) a causal connection between the
conduct and injury; and (iv) severe emotional distress.”
Greenaway v. Cty. of Nassau, 97 F. Supp. 3d 225, 239-40
(E.D.N.Y. 2015) (quoting Howell v. N.Y. Post Co., Inc., 81
N.Y.2d 115 (1993)). The “extreme and outrageous conduct”
must “go beyond all possible bounds of decency” and be
“atrocious, and utterly intolerable in a civilized community.”
Greenaway, 97 F. Supp. 3d at 239-40 (citations omitted). The
tort “may be invoked only as a last resort, to provide relief
in those circumstances where traditional theories of recovery
do not.” Salmon v. Blesser, 802 F.3d 249, 256 (2d Cir. 2015)
(internal citation and quotation marks omitted).
Even drawing all inferences in the plaintiffs' favor, the
record does not sustain an intentional infliction of emotional
distress claim. There is no evidence about the mindset
of the defendants or their employees, in part because the
plaintiffs did not depose them. Furthermore, no reasonable
juror would find that the evidence on this record establishes
conduct “so outrageous in character, and so extreme in
degree, as to go beyond all possible bounds of decency.” See
Chanko v. Am. Broad. Cos. Inc., 27 N.Y.3d 46, 56 (2016).
As discussed above, there is a triable issue of fact as to
whether the defendants acted with deliberate indifference or
negligently. These traditional claims may provide relief at
trial; accordingly, the plaintiffs' claim for intentional infliction
of emotional distress is dismissed. 26
III. Damages
*19 The Armor defendants make three damages-related
arguments in their motion for summary judgment. First, they
claim that the plaintiffs cannot sustain a claim for attorneys'
fees under 42 U.S.C. § 1988 because the plaintiffs “cannot be
a prevailing party on any of the civil rights claims set forth
in this litigation.” (ECF No. 60-5, at 15.) As discussed above,
the plaintiffs' civil rights claims will be tried before a jury.
Accordingly, dismissing the plaintiffs' request for attorneys'
fees is premature.
Second, the defendants claim that the plaintiffs cannot recover
pecuniary losses beyond funeral expenses in connection
with their wrongful death claims. Damages in a wrongful
death action are limited to compensation for “pecuniary
loss,” which is defined as “the economic value of the
decedent to each distributee at the time decedent died,”
and includes “loss of income and financial support, loss of
household services, loss of parental guidance, as well as
funeral expenses and medical expenses incidental to death.”
Milczarski v. Walaszek, 108 A.D.3d 1190 (App. Div. 2013)
(internal citations omitted). “To recover on their wrongful
death claims, plaintiffs must present an evidentiary basis for
a reasonable expectation of pecuniary loss from decedent's
death.” Datskow v. Teledyne Continental Motors Aircraft
Products, 807 F. Supp. 941, 945 (W.D.N.Y. 1992) (quoting
Public Administrator of Kings County v. U.S. Fleet Leasing of
New York, Inc., 159 A.D.2d 331, 332 (N.Y. 1990)). Generally,
“because it is difficult to provide direct evidence of wrongful
death damages, the calculation of pecuniary loss is a matter
resting squarely within the province of the jury.” Milczarski,
108 A.D.3d at 1190 (quoting Parilis v. Feinstein, 49 N.Y.2d
984, 985 (1980)).
The plaintiffs have raised an issue of triable fact as to whether
the plaintiffs have a reasonable expectation of pecuniary
loss from Mr. Gleeson's death that exceed funeral expenses.
First, the plaintiffs established that Mr. Gleeson provided
household services to his parents, ex-wife, and children. (See,
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e.g., M.G. Dep. 21:8-13; ECF No. 61-5, 326:6-12.) Second,
the plaintiffs established that Mr. Gleeson provided financial
support to his children pursuant to a divorce judgment,
although he was in arrears at the time of his death, as well
as contributions for vacations, holiday gifts, back to school
clothing, sports equipment, and sports team fees. (ECF No.
61-5, 317:3-319:19.) Finally, the plaintiffs established that
Mr. Gleeson had a relationship with his children. (M.G. Dep.
298:11-20.) In light of these facts, I will not find as a matter of
law that the plaintiffs have suffered no pecuniary losses apart
from funeral expenses. See, e.g. Ryan, 2016 WL 11500151, at
*8 (“Although the record concerning potential pecuniary loss
is quite limited, the Court cannot find as a matter of law that
Plaintiff suffered no pecuniary injury beyond the recovery of
Ryan's funeral expenses.”)
Third, the Armor defendants claim that they cannot be sued
for punitive damages. Courts have held that entities acting
under color of state law “are not afforded the same immunities
from liability as are available to the municipality.” Phelan ex
rel. Phelan v. Torres, No. 04-CV-3538, 2005 WL 4655382, at
*16 (E.D.N.Y. Sept. 20, 2005) 27 (non-for-profit corporation
under contract with a municipality cannot be shielded from
punitive damages). Punitive damages may be awarded only
when the plaintiff has demonstrated that the defendants'
conduct was “motivated by evil motive or intent, or when
it involves reckless or callous indifference to the federally
protected rights of others.” Smith v. Wade, 461 U.S. 30, 56
(1983). Nevertheless, “[g]enerally, the issue of whether to
award punitive damages is an issue for the jury to decide
based on an evaluation of plaintiff's proof of ‘sufficiently
serious misconduct.’ ” Phelan, 2005 WL 4655382, at *15
(citation omitted). Accordingly, the Armor defendants can be
sued for punitive damages, and their motion for summary
judgment on the issue of punitive damages is dismissed.
CONCLUSION
*20 The Court grants summary judgment for Defendants
“John Does 1-10,” “John and Jane Does 11-20,” the Nassau
County Correctional Center, the Nassau County Sheriff's
Department, and Michael J. Sposato in his official capacity
as Sheriff of Nassau County, and dismisses them from the
case. The defendants' motion for summary judgment on
the intentional infliction of emotional distress claim is also
granted as to all remaining defendants. The Court denies
summary judgment to Sheriff Sposato in his individual
capacity, Nassau County, and Armor on all remaining claims.
SO ORDERED.
All Citations
Not Reported in Fed. Supp., 2019 WL 4754326
Footnotes
1 In deciding whether summary judgment is appropriate, the Court resolves all ambiguities and draws all
reasonable inferences in favor of the non-moving party, in this case, the plaintiffs. See Kaytor v. Elec. Boat
Corp., 609 F.3d 537, 545 (2d Cir. 2010); Salomon v. Our Lady of Victory Hosp., 514 F.3d 217, 226 (2d Cir.
2008).
2 On a motion for summary judgment, the Court's consideration is limited to factual material that would
be admissible in evidence at trial. Local Unions 20 v. United Brotherhood of Carpenters and Joiners of
America, 223 F. Supp. 2d 491, 496 (S.D.N.Y. 2002). Factual allegations that are disputed without a citation
to admissible evidence are deemed admitted, as long as they are also supported by the record. Local Civ. R.
56.1; Giannullo v. City of New York, 322 F.3d 139, 140 (2d Cir. 2003). Factual allegations that are not disputed
are deemed admitted, as long as they are also supported by the record. Id. I will disregard any arguments
in the Rule 56.1 statements. Pape v. Dircksen & Talleyrand Inc., No. 16-CV-5377, 2019 WL 1435882, at *2
(E.D.N.Y. Feb. 1, 2019), report and recommendation adopted, 2019 WL 1441125 (E.D.N.Y. Mar. 31, 2019).
The parties' 56.1 submissions are not helpful in determining whether there are material disputes of fact. By
way of example only, the parties spend far more time disputing the procedural history of this litigation than in
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developing the chronology of Mr. Gleeson's treatment and death at the NCCC. Nevertheless, I have reviewed
the entire record, including Mr. Gleeson's medical records, to determine the extent to which there are factual
disputes.
3 The Armor defendants are foreign corporations authorized to conduct business in the state of New York.
(ECF No. 72), Pls.' Counter-Statement in Response to Armor defendants (“Pls.' 56.1 (Armor)” ¶ 50)
4 The Nassau University Medical Center provided medical care to inmates at the NCCC before Armor. (ECF
No. 71-4, Report of Nassau County Comptroller George Maragos (“Comptroller Report”), at i.)
5 The Medical Review Board consists of six members appointed by the governor, with the advice and consent
of the senate. N.Y. Correct. Law § 43 (McKinney 2019). Three of the six members must be physicians.
Id. Among its duties, the Board “investigate[s] and review[s] the cause and circumstances surrounding the
death of any inmate of a correctional facility,” and submits a report to the Commission of Correction and the
administrator of the correctional facility. Id. § 47.
6 Mr. Gleeson also disclosed his alcohol and heroin use. (Id.)
7 The parties did not include in their 56.1 statements the details of Mr. Gleeson's treatment in the weeks leading
up to his death. Accordingly, I have reviewed the handwritten medical records, which are difficult to read,
and in some cases, completely illegible. The parties did not depose the medical personnel who authored
the records.
8 ECF No. 57-22, ¶ 12.
9 Neither side includes the full details of the conversation, nor mentions Mr. Gleeson's reference to the
rheumatologist.
10 The County defendants challenge the declaration of Morgan Smith, another inmate, as inadmissible hearsay.
(ECF No. 80-1, § F.) Rule 56(c)(4) of the Federal Rules of Civil Procedure permits the Court to consider
a declaration on summary judgment if it is made on personal knowledge and includes facts that would be
admissible in evidence. While some of the statements in the Smith declaration may be inadmissible hearsay,
the statement that he and other inmates were yelling for help is not offered for the truth of its content, but
simply as evidence that the inmates called for help.
11 According to Mr. Smith, Mr. Gleeson's neck was “two times its normal size.” (ECF No. 74-39, ¶ 4.)
12 In their reply to the plaintiffs' 56.1 counter-statement, the County defendants make a general challenge to
the admissibility of some of the plaintiffs' evidence, but do not make a specific objection to the NYSCOC
reports. In any event, the NYSCOC reports are admissible as public records under Federal Rule of Evidence
803(8)(A)(iii) because they contain factual findings from a legally authorized investigation, and the defendants
have not suggested that the reports lack trustworthiness. See Moses v. Westchester County Department of
Correction, No. 10-CV-9468, 2017 WL 4386362, at *10-11 (S.D.N.Y. Sept. 29, 2017).
13 None of the defendants challenge the admissibility of the Comptroller Report. The County defendants argue
that I should disregard the Comptroller Report because it was “created in 2016 and has no bearing on the
death of the decedent ...” (ECF No. 80-1, § F.) I address this argument in section I.b.iv of this Opinion.
14 In a letter responding to the Comptroller's report, Sheriff Sposato noted that an Interim Health Contract
Administrator had been appointed in 2016, and that the Sheriff's Department had published a job
announcement for a permanent replacement. (Comptroller Report at 53.) The Comptroller's views were
unchanged: “[we] reiterate that this position was vacant from 2011 to 2016 and reemphasize the importance
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of having a medical professional on site at the Correctional Center to oversee the medical care provided by
the contractor.” (Id. at 59.)
15 The National Commission on Correction Health Care (“NCCHC”) establishes nationally recognized standards
and benchmarks. (Comptroller Report at n. 27.)
16 I take judicial notice of the lawsuit filed in state court. See Liberty Mut. Ins. Co. v. Rotches Pork Packers,
Inc., 969 F.2d 1384, 1388 (2d Cir. 1992).
17 The County defendants object to the admissibility of the affirmation because the settlement agreement
provides that it is “not intended for use by any third party in any other action or proceeding[.]” (ECF No. 80
at 8) (quoting ECF No. 80-3, ¶ 10). The affirmation is admissible as a public record under Federal Rule of
Evidence 803(8)(A)(iii) because it contains factual findings from a legally authorized investigation, and the
defendants have not suggested that it lacks trustworthiness. See Bradford Trust Co. v. Merrill Lynch, 805
F.2d 49, 54-55 (2d Cir. 1986) (FBI reports prepared for related criminal action fall under the public records
hearsay objection).
18 Before the Second Circuit's decision in Darnell, a pretrial detainee had to prove that the defendant official was
subjectively aware of the harms associated with the constitutional deprivation. In Darnell, the Second Circuit
changed the culpability standard for conditions-of-confinement cases in light of the Supreme Court's decision
in Kingsley v. Hendrickson, 135 S. Ct. 2466 (2015), which applied an objective standard for excessive force
claims brought by pretrial detainees under the Fourteenth Amendment. Darnell, 849 F.3d at 35.
19 See generally Ramey v. Perez, No. 13-CV-00017, 2014 WL 407097, at *4 (S.D.N.Y. Jan. 31, 2014) (“There
has been considerable division among the district courts of the Second Circuit as to whether Iqbal abrogates
several factors of the Colon test and if so to what extent.... Colon remains the standard in this Circuit for
deciding whether personal involvement by supervisory officials is sufficiently alleged in the context of the
Eighth Amendment.”).
20 The AAG affirmation references three other deaths—before Mr. Gleeson's—where the Medical Review Board
found that Armor was responsible for egregious lapses in medical care. (AAG Affirmation ¶ 9.) These findings
support the conclusion that Sheriff Sposato should have known about the risk of constitutional violations, a
question that is ultimately for a jury.
21 The plaintiffs also have sued Sheriff Sposato in his official capacity. “[A]n official-capacity suit is, in all respects
other than name, to be treated as a suit against the [governmental] entity.” Kentucky v. Graham, 473 U.S.
159, 166 (1985). “[T]hus, within the Second Circuit, where a plaintiff names both the municipal entity and an
official in his or her official capacity, district courts have consistently dismissed the official capacity claims
as redundant.” Stancati v. County of Nassau, No. 14-CV-2694, 2015 WL 1529859, at *2 (E.D.N.Y. Mar. 31,
2015) (quotation marks and citation omitted). A suit against Sheriff Sposato in his official capacity will be
treated and analyzed as a suit against Nassau County, and the claim against Michael J. Sposato as Sheriff
of Nassau County is dismissed as duplicative and redundant.
22 There is substantial evidence in the record that Mr. Gleeson would not have died if he had been seen by
a rheumatologist. (ECF No. 71-6 ¶ 22; NYCOC Report ¶ 13 (“Had Gleeson been appropriately referred to
a specialist, received a correct diagnosis, and received the proper treatment, his terminal event may have
been prevented.”)).
23 Armor's proposed electronic medical records system, which it did not implement, could, for example, generate
reports of “[p]atients' pending consultations with specialists.” (2011 Armor Contract at 231.)
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24 The plaintiffs also argue that the County's approval and renewal of its contract with Armor constitutes an
official policy. (ECF No. 70 at 22.) A decision adopted by a municipal body is, of course, an officially
promulgated policy for the purposes of Monell liability. Monell, 436 U.S. at 690. But the County's approval of
the Armor contract is too far removed from Mr. Gleeson's treatment to support the requisite causal connection.
Pipitone, 57 F. Supp. 3d at 194 (“Municipalities can only be liable under § 1983 when they are a ‘moving
force’ behind the constitutional deprivation.”) (citing Kentucky v. Graham, 473 U.S. 159, 166 (1985)).
25 The AAG affirmation references three other deaths, before Mr. Gleeson's, in which the Medical Review Board
found that Armor engaged in egregious lapses in medical care. (AAG Affirmation ¶ 9.) These repeated findings
of civil rights violations buttress the conclusion that by the time of Mr. Gleeson's detention, the County had
notice of serious problems of unconstitutional conduct requiring better supervision.
26 Even if the plaintiffs could sustain the intentional infliction of emotional distress claim, it would be dismissed
as to the County defendants. See J.H. v. Bratton, 248 F. Supp. 3d 401, 416 n.10 (E.D.N.Y. 2017) (“It is
well settled that public policy bars claims sounding in intentional infliction of emotional distress against a
government entity.”) (quoting Lauer v. City of N.Y., 240 A.D.2d 543 (N.Y. 1997)).
27 The Honorable Edward Korman adopted the report and recommendation in an unpublished order on
November 28, 2005.
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Glover v. Goord, Not Reported in F.Supp.2d (2007)
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2007 WL 2454193
Only the Westlaw citation is currently available.
United States District Court,
N.D. New York.
Philip GLOVER, Plaintiff,
v.
Glenn S. GOORD, et al., Defendant.
No. 9:06-CV-1037 (LEK/DEP).
|
Aug. 22, 2007.
Attorneys and Law Firms
PHILIP GLOVER, pro se.
Hon. Andrew M. Cuomo, Attorney General of the State of
New York, Office of the Attorney General, Syracuse Regional
Office, Maria Moran, Esq., Assistant Attorney General, of
Counsel, Syracuse, NY, for Defendants.
DECISION AND ORDER
LAWRENCE E. KAHN, U.S. District Judge.
*1 This matter comes before the Court following a Report-
Recommendation filed on July 3, 2007, by the Honorable
David E. Peebles, United States Magistrate Judge, pursuant to
28 U.S.C. § 636(b) and L.R. 72.3(c) of the Northern District
of New York. Report-Rec. (Dkt. No. 20).
Within ten days, excluding weekends and holidays, after a
party has been served with a copy of a Magistrate Judge's
Report-Recommendation, the party “may serve and file
specific, written objections to the proposed findings and
recommendations,” FED. R. CIV. P. 72(b), in compliance
with L.R. 72.1. No objections have been raised in the allotted
time with respect to Judge Peebles' Report-Recommendation.
Furthermore, after examining the record, the Court has
determined that the Report-Recommendation is not subject to
attack for plain error or manifest injustice.
Accordingly, it is hereby
ORDERED that the Report-Recommendation (Dkt. No. 20)
is APPROVED and ADOPTED in its ENTIRETY; and it
is further
ORDERED that Defendant Goord's Motion to dismiss (Dkt.
No. 16) is GRANTED; and it is further
ORDERED that Plaintiff's Complaint (Dkt. No. 1) be
DISMISSED as against Defendant Goord, without
prejudice to the right to replead; and it is further
ORDERED that the Motions of Defendants Canfield and
Coniglio to transfer the action to the Western District of New
York (Dkt.Nos.8, 16) are GRANTED; and it is further
ORDERED that the Clerk serve a copy of this Order on all
parties.
IT IS SO ORDERED.
REPORT AND RECOMMENDATION
DAVID E. PEEBLES, U.S. Magistrate Judge.
Plaintiff Philip Glover, a New York State prison inmate
who is proceeding pro se and in forma pauperis, has
commenced this civil rights action against Glenn S. Goord,
the former Commissioner of the New York State Department
of Correctional Services (“DOCS”), and two physicians-one a
DOCS employee stationed at the Elmira Correctional Facility,
and the other an orthopedic surgeon at the Wyoming County
Community Hospital-alleging deprivation of his rights under
the Eighth Amendment to the United States Constitution.
In his complaint, plaintiff asserts that during the course of
treatment of his broken arm, extending over a significant
period and requiring at least two surgeries, defendants were
deliberately indifferent to his serious medical needs, resulting
in his experiencing cruel and unusual punishment. Plaintiff's
complaint seeks recovery of compensatory and punitive
damages.
In response to plaintiff's complaint, the defendants have
moved seeking its dismissal, claiming improper venue or, in
the alternative, a transfer of the action to the Western District
of New York. In that motion, defendant Goord also requests
dismissal of plaintiff's claims against him based upon lack
of personal involvement. For the reasons set forth below, I
recommend that defendant Goord's motion to dismiss for lack
of personal involvement be granted, and that the action be
transferred to the Western District of New York, where the
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remaining defendants are located and the events relevant to
plaintiff's claims took place.
I. BACKGROUND 1
*2 Plaintiff is a New York State prison inmate entrusted to
the custody of the DOCS. At the times relevant to his claims,
plaintiff was confined within the Elmira Correctional Facility
(“Elmira”). On or about May 30, 2004, while at Elmira,
plaintiff suffered a broken arm. As a result of his examination
of the injury Dr. Wesley Canfield, a DOCS physician at
Elmira, determined that Glover needed to undergo the surgical
insertion of a K-wire and screw in order to repair the
break. Arrangements were therefore made for surgery, to be
performed by Dr. Gerald Coniglio at the Wyoming County
Community Hospital.
Following his operation, which was performed on July
13, 2004, and extending until October 20, 2004, plaintiff
experienced severe pain and ongoing leakage of infected
puss at the site of his surgery. According to the plaintiff,
he was examined by defendants Canfield and Coniglio “on
numerous occasions” to address the problems with his arm
and ascertain the cause of his pain and infection. After
several consultations, a second operation was scheduled to
be performed on October 20, 2004, again at the Wyoming
County Community Hospital. In that second operation, which
plaintiff maintains was performed despite testing revealing
that he had a high glucose level, Dr. Coniglio removed the K-
wire.
Following his second operation, plaintiff's arm continued
to leak infected puss. Plaintiff was again examined by
defendants Canfield and Coniglio multiple times between
October 20, 2004 and the end of that year. After determining
that stronger antibiotics had failed to cure plaintiff's arm,
medical officials scheduled a third operation.
Before the third scheduled surgery could take place, plaintiff
was examined by a Dr. Angus, at the Arnot Ogden Medical
Center, located in Elmira, New York, in connection with an
apparently unrelated potential circumcision. Noting plaintiff's
high level of glucose, Dr. Angus refused to perform that
procedure. When Dr. Angus alerted defendants Canfield and
Coniglio of plaintiff's high glucose level, they immediately
prescribed metformin and glipizide for level two diabetes.
Once those prescription drugs were administered, the wound
on plaintiff's arm healed within two weeks.
In November of 2005 Dr. Richard Boch x-rayed plaintiff's
arm. Upon reviewing the resulting x-rays, Dr. Boch
determined that the screw placed in Grover's arm was too
large, and additionally that it was inserted backwards. Dr.
Boch subsequently removed the screw and placed it in a
medical evidence bag.
II. PROCEDURAL HISTORY
Plaintiff commenced this action on August 28, 2006, alleging
that by their actions defendants were deliberately indifferent
to his serious medical needs in violation of his constitutional
rights under the Eighth Amendment. Dkt. No. 1. In response
to plaintiff's complaint, defendants have lodged two separate
motions seeking dismissal of the action on the ground that
it is improperly venued in this district or, alternatively,
requesting a transfer of the action to the Western District of
New York. 2 Dkt. Nos. 8, 16. Defendant Goord also seeks
dismissal of plaintiff's claims against him based upon the lack
of his personal involvement in the constitutional violations
alleged. Id. Plaintiff has since responded to both motions,
arguing that because defendant Goord is alleged to have
directly supervised the defendants in the action at the relevant
times, and was purportedly required to approve all medical
procedures performed, there is an adequate basis for finding
personal liability against him. Plaintiff also asserts that the
Northern District of New York is an appropriate venue, but
requests a transfer of the action to the Western District of
New York in the event that the court agrees that venue in this
district is inappropriate. Dkt. Nos. 14, 19.
*3 The pending dismissal motions, which are now ripe for
determination, have been referred to me for the issuance of a
report and recommendation, pursuant to 28 U.S.C. § 636(b)
(1)(B) and Northern District of New York Local Rule 72.3(c).
See also Fed.R.Civ.P. 72(b).
III. DISCUSSION
A. Dismissal Motion Standard
Plaintiff's motion to dismiss, brought pursuant to Rule 12(b)
(6) of the Federal Rules of Civil Procedure, calls upon the
court to gauge the facial sufficiency of that pleading, utilizing
as a backdrop a pleading standard which is particularly
unexacting in its requirements. Rule 8 of the Federal Rules
of Civil Procedure requires only that a complaint contain
“a short and plain statement of the claim showing that the
pleader is entitled to relief.” Fed.R.Civ.P. 8(a)(2). Absent
applicability of a heightened pleading requirement such as
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that imposed under Rule 9, a plaintiff is not required to
plead specific factual allegations to support the claim; rather,
“the statement need only ‘give the defendant fair notice of
what the ... claim is and the grounds upon which it rests.’
“ Erickson v. Pardus, --- U.S. ----, 127 S.Ct. 2197, 2200
(2007) (quoting Bell Atlantic Corp. v. Twombly, --- U.S. ----,
127 S.Ct. 1955, 1964 (2007) (other quotations omitted));
cf. Iqbal v. Hasty, 490 F.3d 143, 2007 WL 1717803, at
*11 (2d Cir. June 14, 2007) (acknowledging that a plaintiff
may properly be required to illuminate a claim with some
factual allegations in those contexts where amplification is
necessary to establish that the claim is “plausible”). Once the
claim has been stated adequately, a plaintiff may present any
set of facts consistent with the allegations contained in the
complaint to support his or her claim. Twombly, 127 S.Ct. at
1969 (observing that the Court's prior decision in Conley v.
Gibson, 355 U.S. 41, 78 S.Ct. (1957), “described the breadth
of opportunity to prove what an adequate complaint claims,
not the minimum standard of adequate pleading to govern a
complaint's survival”).
In deciding a Rule 12(b)(6) dismissal motion, the court must
accept the material facts alleged in the complaint as true, and
draw all inferences in favor of the non-moving party. Cooper
v. Pate, 378 U.S. 546, 546, 84 S.Ct. 1722, 1734 (1964); Miller
v. Wolpoff & Abramson, LLP, 321 F.3d 292, 300 (2d Cir.),
cert. denied, 540 U.S. 823, 124 S.Ct. 153 (2003); Burke v.
Gregory, 356 F.Supp.2d 179, 182 (N.D.N.Y.2005) (Kahn, J.).
The burden undertaken by a party requesting dismissal of
a complaint under Rule 12(b)(6) is substantial; the question
presented by such a motion is not whether the plaintiff is likely
ultimately to prevail, “ ‘but whether the claimant is entitled
to offer evidence to support the claims.’ “ Log On America,
Inc. v. Promethean Asset Mgmt. L.L.C., 223 F.Supp.2d 435,
441 (quoting Gant v. Wallingford Bd. of Educ., 69 F.3d 669,
673 (2d Cir.1995) (other quotations omitted)). Accordingly, a
complaint should be dismissed on a motion brought pursuant
to Rule 12(b)(6) only where the plaintiff has failed to provide
some basis for the allegations that support the elements of his
or her claim. See Twombly, 127 S.Ct. at 1969, 1974.
*4 When assessing the sufficiency of a complaint against
this backdrop, particular deference should be afforded to a pro
se litigant whose complaint merits a generous construction
by the court when determining whether it states a cognizable
cause of action. Erickson, 127 S.Ct. at 2200 (“ ‘[A] pro
se complaint, however inartfully pleaded, must be held to
less stringent standards than formal pleadings drafted by
lawyers.’ ”) (quoting Estelle v. Gamble, 429 U.S. 97, 106, 97
S.Ct. 285, 292 (1976) (internal quotations omitted)); Davis
v. Goord, 320 F.3d 346, 350 (2d Cir.2003) (citation omitted);
Donhauser v. Goord, 314 F.Supp.2d 119, 121 (N.D.N.Y.2004)
(Hurd, J.). In the event of a perceived deficiency in a pro
se plaintiff's complaint, a court should not dismiss without
granting leave to amend at least once if there is any indication
that a valid claim might be stated. Branum v. Clark, 927 F.2d
698, 704-05 (2d Cir.1991); see also Fed.R.Civ.P. 15(a) (leave
to amend “shall be freely given when justice so requires”).
B. Sufficiency of Plaintiff's Allegations Against
Commissioner Goord
In his motion, defendant Goord argues that plaintiff's
complaint is devoid of any allegations of his involvement in,
or even awareness of, the constitutional violations alleged.
Defendant Goord maintains that because plaintiff's claim
appears to be grounded solely on the theory of respondeat
superior-an assumption largely confirmed by plaintiff's
opposition papers-he is entitled to dismissal of plaintiff's
complaint based upon lack of personal involvement.
Personal involvement of a defendant in an alleged
constitutional deprivation is a prerequisite to an award of
damages under section 1983. Wright v. Smith, 21 F.3d 496,
501 (2d Cir.1994) (citing Moffitt v. Town of Brookfield, 950
F.2d 880, 885 (2d Cir.1991); McKinnon v. Patterson, 568
F.2d 930, 934 (2d Cir.1977), cert. denied, 434 U.S. 1087,
98 S.Ct. 1282 (1978)). In order to prevail on a section 1983
cause of action against an individual, a plaintiff must show
some tangible connection between the constitutional violation
alleged and that particular defendant. See Bass v. Jackson, 790
F.2d 260, 263 (2d Cir.1986).
A supervisor cannot be liable for damages under section 1983
solely by virtue of being a supervisor; there is no respondeat
superior liability under section 1983. Richardson v. Goord,
347 F.3d 431, 435 (2d Cir.2003); Wright, 21 F.3d at 501. A
supervisory official can, however, be liable in one of several
ways: 1) the supervisor may have directly participated in
the challenged conduct; 2) the supervisor, after learning of
the violation through a report or appeal, may have failed
to remedy the wrong; 3) the supervisor may have created
or allowed to continue a policy or custom under which
unconstitutional practices occurred; 4) the supervisor may
have been grossly negligent in managing the subordinates
who caused the unlawful event; or 5) the supervisor may have
failed to act on information indicating that unconstitutional
acts were occurring. Iqbal, 2007 WL 1717803, at *6; see also
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Richardson, 347 F.3d at 435; Wright, 21 F.3d at 501; Williams
v. Smith, 781 F.2d 319, 323-24 (2d Cir.1986).
*5 When viewed in isolation, the allegations set forth
in plaintiff's complaint are completely devoid of any
connection between Commissioner Goord and plaintiff's
alleged injuries. Plaintiff simply notes that defendant Goord
was the Commissioner during the relevant time period, and
was therefore “responsible ultimately for [his] care, custody,
and control, and under the respondent superior doctrine is
liable for actions of his respondents who act out of the color
of state law.” Complaint (Dkt. No. 1) ¶ 6. These allegations
are facially insufficient to implicate Commissioner Goord in
the constitutional violation alleged, since they fail to allege a
tangible connection between his actions and plaintiff's alleged
injuries. See, e.g., Gill v. Mooney, 824 F.2d 192, 196 (2d.
Cir.1987) (finding dismissal appropriate where plaintiff did
no more than allege that defendant was in charge of prison);
Ayers v. Coughlin, 780 F.2d 205, 210 (2d Cir.1985) (same).
In his response dated Feb. 2, 2007, in opposition to
Commissioner Goord's dismissal motion, plaintiff writes
that he is “including Commissioner Goord; under the color
of State Law because Defendants Dr. Wesley Canfield;
and Defendant Gerald Conglio; Is [sic] under the direct
supervision of Commissioner Goord.” Plaintiff's Affidavit
(Dkt. No. 14) ¶ 1. From this it appears that plaintiff is
attempting to justify the inclusion of Commissioner Goord
in the action based solely on his supervisory position over
defendants Canfield and Coniglio. This allegation alone is
insufficient to implicate defendant Goord in the constitutional
violation alleged, since it fails to establish a nexus between
Commissioner Goord and the alleged injuries. “[M]ere
‘linkage in the prison chain of command’ is insufficient to
implicate a state commissioner of corrections or a prison
superintendent in a § 1983 claim.” Richardson, 347 F.3d at
435 (quoting Ayers, 780 F.2d at 210).
In his later response, filed on May 2, 2007, in opposition to
defendant Canfield's dismissal motion, plaintiff interjects a
new argument, asserting that
[a]ll medical procedures done in New
York State Department Correctional
Services; Must first be approved by the
Commissioner of Corrections; Who
was Glenn S. Goord at the time of both
of Plaintiffs operations; So therefore
Commissioner Goord was Directly
involved. And should be kept on as a
defendant. [sic]
Plaintiff's Affidavit (Dkt. No. 19) ¶ 2(C). 3 This statement
moves well beyond the original assertions set forth in
plaintiff's complaint. From this, plaintiff's position now
appears to be that because Commissioner Goord would have
had to approve any medical procedure before the plaintiff
could undergo medical treatment for his arm injury, he was
thus personally involved in the treatment decisions at issue.
Plaintiff's assertion regarding Commissioner Goord's
authority to approve all medical procedures which, despite the
court's skepticism, must be accepted as true for purposes of
defendants' motion, gives room for pause. Such an allegation
would potentially form the basis for a finding of personal
involvement in a situation, for example, where an inmate
plaintiff alleges the complete denial of medical treatment.
Thus, by way of illustration, had plaintiff alleged that
additional surgery was recommended, but denied by the
DOCS, then defendant Goord's liability could potentially
be implicated under the circumstances now asserted by the
plaintiff. In this instance, by contrast, plaintiff's claim is not
that he has been denied requested surgery, but rather that the
surgeries were performed negligently and that his operating
and treating doctors failed to discern the existence of a
high glucose level and to prescribe medication to eliminate
his infections. It is difficult to imagine how Commissioner
Goord's authority to approve medical procedures could
expose him to personal liability in this setting. In deference to
plaintiff's pro se status, however, and to permit clarification of
the basis for plaintiff's claims of personal involvement on the
part of defendant Goord, as well as to allow defendant Goord
to respond to and defend against that claim, I recommend that
plaintiff's claims against defendant Goord be dismissed for
lack of personal involvement, though without prejudice and
with leave to replead.
C. Improper Venue 4
*6 In their motions, defendants assert that venue in this
action is improperly laid in the Northern District of New York,
and that as such they are entitled to dismissal of plaintiff's
complaint pursuant to Rule 12(b)(3) of the Federal Rules of
Civil Procedure. As an alternative to dismissal, defendants
request that the matter be transferred to the Western District
of New York. Plaintiff opposes defendants' dismissal motion
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but, in the event of a finding of improper venue, urges that the
action be transferred to the Western District.
Venue in an action such as this is governed by 28 U.S.C. §
1391(b), which provides, in pertinent part, that
[a] civil action wherein jurisdiction
is not founded solely on diversity of
citizenship may, except as otherwise
provided by law, be brought only in (1)
a judicial district where any defendant
resides, if all defendants reside in the
same State, [or] (2) a judicial district in
which a substantial part of the events
or omissions giving rise to the claim
occurred....
28 U.S.C. § 1391(b). In the event of a finding that venue
is improper, a court is empowered to dismiss the action or,
alternatively, if the interest of justice dictates, to transfer the
case to any district in which it could have been brought. 28
U.S.C. § 1406(a); see also Goldlawr, Inc. v. Heiman, 369 U.S.
463, 465-67, 82 S.Ct. 913, 915-16 (1962).
Since I have already determined that Commissioner Goord's
motion to dismiss based on lack of personal involvement
should be granted, the factors informing the venue
examination now focus upon the residence of defendants
Canfield and Coniglio, as well as where the relevant events
occurred. Plaintiff's complaint lists defendant Canfield's
address as Elmira, Chemung County, New York. It further
lists defendant Coniglio's address as Warsaw, Wyoming
County, New York. At all times relevant to this action,
plaintiff was incarcerated at the Elmira Correctional Facility,
located in Elmira, Chemung County, New York. The two
surgeries and related medical treatment at issue in plaintiff's
complaint took place at the Wyoming County Community
Hospital in Warsaw, Wyoming County, New York. Both
Chemung and Wyoming Counties are located within the
Western District. Since it appears that the Western District
is the appropriate forum in which this case, as currently
configured, should be litigated, and both parties have
requested a transfer in the event of such a finding, I
recommend that this matter be transferred to that district as the
most appropriate forum for litigation of plaintiff's claims. 5
See, e.g., Chet Baker Enterprises, L.L.C. v. Fantasy, Inc., 257
F.Supp.2d 592, 595-98 (S.D.N.Y.2002).
IV. SUMMARY AND RECOMMENDATION
Plaintiff's complaint in this action, which alleges that
defendants were deliberately indifferent to his serious medical
needs in violation of his Eighth Amendment right to be
free from cruel and unusual punishment, fails to demonstrate
the requisite personal involvement of former Commissioner
Goord in the constitutional violation alleged. Accordingly,
I recommend that defendants' motion to dismiss plaintiff's
claims against defendant Goord be granted, with leave to
replead.
*7 Turning to defendants' venue-based motion, because the
remaining defendants reside in the Western District of New
York, and the relevant events occurred there, I recommend
transfer of the action to that district.
Based upon the foregoing it is hereby
RECOMMENDED that defendant Goord's motion to dismiss
(Dkt. No. 8) be GRANTED, and that plaintiff's complaint be
dismissed as against defendant Goord, without prejudice to
the right to replead within an appropriate, specified period of
time; and it is further
RECOMMENDED that the motions of defendants Canfield
and Coniglio to transfer venue (Dkt.Nos.8, 16) be
GRANTED, and that the action be transferred to the Western
District of New York.
Pursuant to 28 U.S.C. § 636(b)(1), the parties have ten
(10) days within which to file written objections to the
foregoing report. Such objections shall be filed with the Clerk
of the Court. FAILURE TO OBJECT TO THIS REPORT
WITHIN TEN (10) DAYS WILL PRECLUDE APPELLATE
REVIEW. 28 U.S. § 636(b)(1); Fed.R.Civ.P. 6(a), 6(e), 72;
Roldan v. Racette, 984 F.2d 85 (2d Cir.1993).
It is further ORDERED that the Clerk of the Court serve a
copy of this report and recommendation upon the parties in
accordance with this court's local rules.
All Citations
Not Reported in F.Supp.2d, 2007 WL 2454193
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Footnotes
1 In light of the procedural posture of the case, the following recitation is drawn principally from plaintiff's
complaint, the allegations of which are accepted as true for purposes of defendants' motion. See Erickson
v. Pardus, --- U.S. ----, 127 S.Ct. 2197, 2200 (2007) (citing Bell Atlantic Corp. v. Twombly, --- U.S. ----, 127
S.Ct. 1955, 1965 (2007)); see also Cooper v. Pate, 378 U.S. 546, 546, 84 S.Ct. 1733, 1734 (1964).
2 The first dismissal motion, filed on January 11, 2007, was interposed on behalf of defendants Goord and
Coniglio, the only two defendants who until that point in time had been served. Dkt. No. 8. On February 5,
2007, after being served with the summons and complaint in the action, defendant Canfield moved seeking
similar relief. Dkt. No. 16.
3 Although plaintiff raises arguments relating to Commissioner Goord's dismissal motion in his papers in
response to defendant Canfield's later motion, I will consider the argument nonetheless. Cf. Estelle v. Gamble,
429 U.S. 97, 106, 97 S.Ct. 285, 292 (1976) (holding that a pro se complaint, “however inartfully pleaded,”
must be held to less stringent standards than formal pleadings drafted by lawyers).
4 While as a magistrate judge I lack the authority, absent consent of the parties, to order dismissal of an
action, a venue transfer is regarded as a non-dispositive matter which falls within the scope of my non-
consensual jurisdiction under 28 U.S.C. § 636(b) (1)(A). See White Mop Wringer Co. of Canada Ltd. v. BT
Capital Partners, Inc., No. 95-CV-565, 1997 WL 222380, at *1 (N.D.N.Y. Apr. 29, 1997) (Pooler, J.); Pemrick v.
Stracher, No. 90-CV-849, 1992 WL 697636, at *1 (N.D.N.Y. Mar. 27, 1992) (McAvoy, C.J.); see also Advance
Relocation & Storage, Inc. v. Wheaton Van Lines, Inc., No. CV 99-2491, 2000 WL 33155640, at *1 (E.D.N.Y.
Sept. 15, 2000) (decision of magistrate judge ordering a venue transfer under 28 U.S.C. § 1404(a)); Tenen
v. Winter, 15 F.Supp.2d 270 (W.D.N .Y.1998) (decision by district judge affirming the order of a magistrate
judge denying a motion for a change of venue). Because defendants' motion to transfer venue is raised in
conjunction with their motion to dismiss, however, I have chosen to format my response to that motion as
a recommendation to Judge Kahn.
5 Even if defendant Goord remained in the action, the court would nonetheless retain the authority to transfer
the case to the Western District of New York under, inter alia, 28 U.S.C. § 1404(a) as the far more convenient
forum for litigation. Viacom Int'l, Inc. v. Melvin Simon Productions, Inc., 774 F.Supp. 858, 868 (S.D.N.Y.1991).
When considering whether to order a transfer under a provision such as section 1404(a), a court must weigh
several relevant factors, including 1) the place where the operative facts occurred; 2) convenience of the
parties; 3) convenience of witnesses; 4) the relative ease of access to sources of proof; 5) the availability of
process to compel attendance of unwilling witnesses; 6) plaintiff's choice of forum; 7) the forum's familiarity
with the governing law; and 8) trial efficiency and the interests of justice. Id. (citations omitted); see Excelsior
College v. Frye, 306 F.Supp.2d 226, 231 (N.D.N.Y.2004) (Hurd, J .). Courts routinely transfer cases when
the principal events occurred, and accordingly the key witnesses are located, in another district. Viacom, 774
F.Supp. at 868 (citing Computer Horizons Corp. v. Knauer, 483 F.Supp. 1272, 1273 (S.D.N.Y.1980)).
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Gonzalez v. City of New York, Not Reported in F.Supp. (1998)
© 2026 Thomson Reuters. No claim to original U.S. Government Works. 1
1998 WL 382055
Only the Westlaw citation is currently available.
United States District Court, S.D. New York.
Angel GONZALEZ, Plaintiff,
v.
THE CITY OF NEW YORK; New York
City Department of Correction; Warden, Otis
Bantum Correctional Center; Corrections
Officer Summer, Shield No. 11856, Defendants.
No. 97 CIV. 2246(MGC).
|
July 9, 1998.
MEMORANDUM OPINION AND ORDER
CEDARBAUM, J.
*1 Plaintiff pro se, Angel Gonzalez, brings this action under
42 U.S.C. § 1983. He alleges that while in the custody of the
New York City Department of Correction (“NYC DOC”), he
was beaten by Correction Officer Summer. This is a motion
to dismiss the complaint as against the City of New York,
Warden of Otis Bantum Correctional Center (the “Warden”)
and NYC DOC pursuant to Fed.R.Civ.P. 12(b)(6).
On April 22, 1998, a letter was sent to Gonzalez directing him
to respond to this motion by June 22, 1998. The letter advised
Gonzalez that if he did not respond by June 22, the motion
would be decided on the basis of the existing record, and the
City of New York, New York City Department of Correction
and Warden of Otis Bantum Correctional Facility might be
dismissed from the action. Gonzalez has not responded. For
the reasons that follow, the motion to dismiss is granted.
BACKGROUND
The complaint alleges that plaintiff was assaulted by
Correction Officer Summer while he was incarcerated at Otis
Bantum Correctional Center on Rikers Island, New York City.
According to the complaint, as plaintiff was coming into the
facility's recreation area from the “yard,” he passed through
a metal detector which registered that he had a metal object
on his person. Defendant Summer then swore at plaintiff
and told him to hurry up. As plaintiff passed through the
metal detector a second time, he said to Summer, “You don't
have to act like that!” Summer then struck plaintiff in the
face repeatedly until he lost consciousness. According to the
complaint, when plaintiff regained consciousness, he found
Summer “still abusing” him and swearing at him. Plaintiff
left, found his way back to the housing area and felt as if he
“had been hit with a bat to the face .” Plaintiff alleges that
he suffered a cut under his left eye, serious swelling of his
face and head, and lacerations of his scalp. He alleges that
black and blue shadows still show under his eyes, and that he
suffers from headaches. He seeks damages in the amount of
three million dollars.
DISCUSSION
On a motion to dismiss pursuant to Rule 12(b)(6), the
factual allegations of the complaint must be accepted as
true, Leatherman v. Tarrant County Narcotics Intelligence &
Coordination Unit, 507 U.S. 163, 164, 113 S.Ct. 1160, 122
L.Ed.2d 517 (1993), and all reasonable inferences must be
drawn in favor of the plaintiff, Bolt Elec., Inc. v. City of New
York, 53 F.3d 465, 469 (2d Cir.1995). A complaint should not
be dismissed “unless it appears beyond doubt that the plaintiff
can prove no set of facts in support of his claim which would
entitle him to relief.” Conley v. Gibson, 355 U.S. 41, 45–46,
78 S.Ct. 99, 2 L.Ed.2d 80 (1957).
1. NYC DOC and the City of New York
Defendants argue that Gonzalez cannot assert a claim against
NYC DOC based on any legal theory because it is not a suable
entity. They also contend that the complaint fails to state a
claim against the City of New York because it does not allege
that the actions complained of were the result of an official
policy, custom or practice of the City of New York.
*2 In addition to the defect that NYC DOC is an agency
of the City of New York that is not a suable entity, 1 the
complaint fails to state a claim upon which relief can be
granted against either NYC DOC or the City. To state a claim
under § 1983, a plaintiff must allege that a person acting
under color of state law deprived him of a right, privilege or
immunity guaranteed by federal law. To state a claim against
a municipality, a plaintiff must also plead that the wrongful
action alleged was the result of an official policy, custom
or practice of the municipality, and that that policy caused
plaintiff's injury. Monell v. Department of Social Services, 436
U.S. 658, 690–95, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978).
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Gonzalez v. City of New York, Not Reported in F.Supp. (1998)
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The complaint, however, alleges no official policy, custom or
practice resulting in injury to Gonzalez. Indeed, the complaint
does not even mention the City of New York or NYC DOC,
except to the extent that they are listed as parties.
2. Warden of Otis Bantum Correctional Center
Defendants also urge dismissal of the complaint against the
Warden, on the ground that there are no allegations in the
complaint concerning that defendant. When an individual
defendant is sued under § 1983, that defendant's personal
involvement in the alleged constitutional deprivation is a
prerequisite to an award of damages. See Wright v. Smith,
21 F.3d 496, 501 (2d Cir.1994). For a claim under § 1983,
a complaint sufficiently alleges personal involvement of a
supervisory official if it alleges one of the following: (a) direct
participation in the alleged wrong; (b) failure to remedy a
violation after receiving notice of it; (c) creation of a policy or
custom under which unconstitutional practices occur; or, (d)
grossly negligent management of subordinates who cause the
constitutional violation. See Black v. Coughlin, 76 F.3d 72, 74
(2d Cir.1996).
A § 1983 claim against a municipal official in his official
capacity is treated as a claim against the municipality itself.
Brandon v. Holt, 469 U.S. 464, 471–72, 105 S.Ct. 873, 83
L.Ed.2d 878 (1985). As noted above, § 1983 imposes liability
on a municipality only when the action that is alleged to be
unconstitutional implements or executes an official policy or
custom. See Monell, 436 U.S. at 690–91.
From the complaint, it is unclear whether the warden is being
sued in his personal or official capacity. However, pro se
complaints, if possible, should be construed as asserting both
claims. Jackson v. Dinkins, 1995 WL 657075, at *1 (S.D.N.Y.
Nov.8, 1995) (citing Frank v. Relin, 1 F.3d 1317, 1326 (2d
Cir.), cert. denied, 510 U.S. 1012, 114 S.Ct. 604, 126 L.Ed.2d
569 (1993)).
The complaint does not allege the personal involvement of
the Warden. The complaint mentions the Warden only in the
caption, and fails to allege any act or omission by that party.
See Crown v. Wagenstein, 1998 WL 118169, at *1 (S.D.N.Y.
Mar.16, 1998) (mere inclusion of warden's name in complaint
insufficient to allege personal involvement); Taylor v. City of
New York, 953 F.Supp. 95, 99 (S.D.N.Y.1997) (same).
*3 Finally, to the extent that the complaint asserts an official-
capacity claim against the Warden, the claim fails for the
same reason that the claims against the City of New York and
NYC DOC fail. There are no allegations of any municipal
policy or custom that the Warden was executing, or that such a
policy or custom caused the alleged violation of the plaintiff's
constitutional rights, as required by Monell. The absence of
any such allegation precludes a finding of liability against the
Warden in his official capacity.
Accordingly, the complaint fails to the state a claim against
the Warden upon which relief can be granted.
CONCLUSION
For the foregoing reasons, the motion to dismiss the complaint
as against defendants the City of New York, New York
City Department of Correction, and Warden of Otis Bantum
Correctional Facility is granted.
SO ORDERED.
All Citations
Not Reported in F.Supp., 1998 WL 382055
Footnotes
1 Defendants correctly point out that New York City agencies, such as NYC DOC, are organizational
subdivisions of the City of New York lacking independent legal existence and are not themselves subject to
suit. See, e.g., Adams v. Galletta, 966 F.Supp. 210, 212 (S.D.N.Y.1997) (“where a plaintiff has named the
Department of Corrections as a defendant, he has sued a non-suable entity”).
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Hall v. Clinton County, Not Reported in Fed. Supp. (2020)
© 2026 Thomson Reuters. No claim to original U.S. Government Works. 1
2020 WL 1923236
Only the Westlaw citation is currently available.
United States District Court, N.D. New York.
Milan HALL, Plaintiff,
v.
CLINTON COUNTY, Defendant.
8:18-CV-1405 (GTS/CFH)
|
Signed 04/21/2020
Attorneys and Law Firms
MILAN HALL, Plaintiff, Pro Se, 36 Bell Road, Chazy, NY
12921.
OF COUNSEL: THOMAS K. MURPHY, ESQ., MURPHY
BURNS LLP, Counsel for Defendant, 407 Albany Shaker
Road, Loudonville, NY 12211.
DECISION and ORDER
GLENN T. SUDDABY, Chief United States District Judge
*1 Currently before the Court, in this pro se civil rights
action filed by Milan Hall (“Plaintiff”) against Clinton County
(“Defendant”), is Defendant's motion to dismiss Plaintiff's
Amended Complaint for failure to state a claim upon which
relief can be granted. (Dkt. No. 13.) For the reasons set forth
below, Defendant's motion is granted.
I. RELEVANT BACKGROUND
A. Plaintiff's Amended Complaint
Plaintiff filed an Amended Complaint in accordance with this
Court's Decision and Order of August 26, 2019. (Dkt. No.
11 [Decision and Order filed Aug. 26, 2019].) Generally, in
his Amended Complaint, Plaintiff alleges that, “commencing
on the 28 th day of June 2012,” Defendant has violated his
rights in five ways by using his marriage license as proof of
paternity: (1) Defendant has stripped him of his status as a
man and termed him a non-custodial parent and obligor; (2)
Defendant has wrongfully denied him the right to raise his
child as he pleases and to do so in privacy; (3) Defendant
has damaged his reputation in his community; (4) Defendant
has denied him the right to a trial by jury before ordering
him to pay child support; and (5) Defendant denied him
his right to due process when it failed to disclose to him
the legal consequences that would result from the signing
of his marriage license. (Dkt. No. 12 [Pl.’s Am. Compl.].)
Generally, based on these factual allegations, and construed
with special liberality, Plaintiff's Amended Complaint claims
that Defendant violated his rights to due process under the
Fifth and Fourteenth Amendments, and his right to a jury trial
under the Sixth and/or Seventh Amendments to the United
States Constitution and 42 U.S.C. § 1983. (Id.)
B. Parties’ Briefing on Defendant's Motion to Dismiss
1. Defendant's Memorandum of Law
Generally, in its motion to dismiss Plaintiff's Amended
Complaint, Defendant makes two arguments. (Dkt. No. 13,
Attach. 2 [Def.’s Mem. of Law].) First, Defendant argues that
Plaintiff's Amended Complaint fails to state a claim upon
which relief can be granted. (Id. at 7-8.) More specifically,
Defendant argues that Plaintiff has not pled facts plausibly
suggesting the existence of any municipal custom, policy, or
practice that caused his alleged constitutional deprivations,
but rather has merely alleged that New York's valid paternity
laws are not fair. (Id.) Defendant also argues that Plaintiff
is essentially seeking a nullification of a New York State
Family Court Order of Child Support against him, triggering
the domestic relations exception to federal court jurisdiction,
and thus, even if the Court were to find that Plaintiff has
stated a claim, the Court would not possess subject-matter
jurisdiction over any such claim. (Id.)
Second, Defendant argues that, based on the Amended
Complaint's own factual allegations, Plaintiff's claims are
untimely as a matter of law. (Id. at 8-9.) More specifically,
Defendant argues that the statute of limitations for personal
injury actions in New York is three years from when the
plaintiff knew or had reason to know of the injury, and that the
Amended Complaint expressly alleges that the child support
proceedings were initiated on June 28, 2012; yet Plaintiff did
not file this lawsuit until December 2018. (Id.) Defendant
argues that any allegations that the injury is ongoing (because
Plaintiff is under a continuous obligation to pay child support)
would not render his claim timely under the continuing
violation doctrine because, based on the factual allegations of
the Amended Complaint, he was (or reasonably should have
been) aware of that injury as early as June 28, 2012. (Id.)
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2. Plaintiff's Opposition Memorandum of Law
*2 Generally, in opposition to Defendant's motion, Plaintiff
makes four arguments. (Dkt. No. 15, at 4-5 [Pl.’s Opp'n
Mem. of Law].) First, Plaintiff argues that he is not alleging
that Defendant failed to inform him of the responsibilities
that could possibly result from children born during his
marriage at the time he signed the marriage license, but
that “Defendants failed to employ Due Process Safeguards
to ensure that the rights of the Plaintiff were protected,
and as a result the Plaintiff was defaulted into a Title IV-
D case from which he now suffers the deprivation of his
inherent rights”; however, he concedes that “[t]his deprivation
is extrinsically linked to the Defendants failure to employ
due process safeguards when presenting the Plaintiff with a
marriage certificate, the legal instrument that would later be
used to default the Plaintiff into a Title IV-D case.” (Id. at 4.)
Pointing to a federal statute requiring a state to have a civil
process for voluntarily acknowledging paternity that includes
the provision of due process and an explanation by the state of
the individual's rights and responsibilities of acknowledging
paternity, he appears to argue that Defendant violated his
right to due process by summoning him to a “fact finding”
hearing before a “Family Court Support Magistrate” because
the Federal Manual of Child Support requires that such a
proceeding should not have been presided over by “a judge
of the court.” (Id.)
Second, Plaintiff argues that he is not merely asking the Court
to overturn the child support order as Defendant suggests,
but is seeking a remedy for the violation of his constitutional
rights. (Id. at 4-5.)
Third, Plaintiff argues that it is a crime to deprive an
individual of his or her constitutional rights. (Id. at 5.)
Fourth, Plaintiff argues that his claims should not be found to
be untimely because he promptly filed his original Complaint
in 2018 as soon as he discovered that his rights had been
violated. (Id. at 5.)
II. GOVERNING LEGAL STANDARDS
It has long been understood that a dismissal for failure to
state a claim upon which relief can be granted, pursuant to
Fed. R. Civ. P. 12(b)(6), can be based on one or both of two
grounds: (1) a challenge to the “sufficiency of the pleading”
under Fed. R. Civ. P. 8(a)(2); or (2) a challenge to the legal
cognizability of the claim. Jackson v. Onondaga Cnty., 549
F. Supp.2d 204, 211 nn. 15-16 (N.D.N.Y. 2008) (McAvoy, J.)
(adopting Report-Recommendation on de novo review).
Because such dismissals are often based on the first ground,
some elaboration regarding that ground is appropriate. Rule
8(a)(2) of the Federal Rules of Civil Procedure requires
that a pleading contain “a short and plain statement of the
claim showing that the pleader is entitled to relief.” Fed. R.
Civ. P. 8(a)(2) [emphasis added]. In the Court's view, this
tension between permitting a “short and plain statement” and
requiring that the statement “show[ ]” an entitlement to relief
is often at the heart of misunderstandings that occur regarding
the pleading standard established by Fed. R. Civ. P. 8(a)(2).
On the one hand, the Supreme Court has long characterized
the “short and plain” pleading standard under Fed. R. Civ. P.
8(a)(2) as “simplified” and “liberal.” Jackson, 549 F. Supp. 2d
at 212 n.20 (citing Supreme Court case). On the other hand,
the Supreme Court has held that, by requiring the above-
described “showing,” the pleading standard under Fed. R.
Civ. P. 8(a)(2) requires that the pleading contain a statement
that “give[s] the defendant fair notice of what the plaintiff's
claim is and the grounds upon which it rests.” Jackson, 549 F.
Supp. 2d at 212 n.17 (citing Supreme Court cases) (emphasis
added).
The Supreme Court has explained that such fair notice has
the important purpose of “enabl[ing] the adverse party to
answer and prepare for trial” and “facilitat[ing] a proper
decision on the merits” by the court. Jackson, 549 F. Supp.
2d at 212 n.18 (citing Supreme Court cases); Rusyniak v.
Gensini, 629 F. Supp. 2d 203, 213 & n.32 (N.D.N.Y. 2009)
(Suddaby, J.) (citing Second Circuit cases). For this reason,
as one commentator has correctly observed, the “liberal”
notice pleading standard “has its limits.” 2 Moore's Federal
Practice § 12.34[1][b] at 12-61 (3d ed. 2003). For example,
numerous Supreme Court and Second Circuit decisions exist
holding that a pleading has failed to meet the “liberal” notice
pleading standard. Rusyniak, 629 F. Supp. 2d at 213 n.22
(citing Supreme Court and Second Circuit cases); see also
Ashcroft v. Iqbal, 129 S. Ct. 1937, 1949-52 (2009).
*3 Most notably, in Bell Atlantic Corp. v. Twombly, the
Supreme Court reversed an appellate decision holding that
a complaint had stated an actionable antitrust claim under
15 U.S.C. § 1. Bell Atlantic Corp. v. Twombly, 550 U.S.
544 (2007). In doing so, the Court “retire[d]” the famous
statement by the Court in Conley v. Gibson, 355 U.S. 41,
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45-46 (1957), that “a complaint should not be dismissed for
failure to state a claim unless it appears beyond doubt that the
plaintiff can prove no set of facts in support of his claim which
would entitle him to relief.” Twombly, 127 S. Ct. at 560-61,
577. Rather than turn on the conceivability of an actionable
claim, the Court clarified, the “fair notice” standard turns on
the plausibility of an actionable claim. Id. at 555-70. The
Court explained that, while this does not mean that a pleading
need “set out in detail the facts upon which [the claim is
based],” it does mean that the pleading must contain at least
“some factual allegation[s].” Id. at 555. More specifically, the
“[f]actual allegations must be enough to raise a right to relief
above the speculative level [to a plausible level],” assuming
(of course) that all the allegations in the complaint are true. Id.
As for the nature of what is “plausible,” the Supreme Court
explained that “[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.” Ashcroft v. Iqbal, 129 S. Ct. 1937,
1949 (2009). “[D]etermining whether a complaint states a
plausible claim for relief ... [is] a context-specific task that
requires the reviewing court to draw on its judicial experience
and common sense.... [W]here the well-pleaded facts do not
permit the court to infer more than the mere possibility
of misconduct, the complaint has alleged–but it has not
show[n]–that the pleader is entitled to relief.” Iqbal, 129 S.
Ct. at 1950 (internal quotation marks and citations omitted).
However, while the plausibility standard “asks for more than
a sheer possibility that a defendant has acted unlawfully,” id.,
it “does not impose a probability requirement.” Twombly, 550
U.S. at 556.
Because of this requirement of factual allegations plausibly
suggesting an entitlement to relief, “the tenet that a court must
accept as true all of the allegations contained in the complaint
is inapplicable to legal conclusions. Threadbare recitals of
the elements of a cause of action, supported by merely
conclusory statements, do not suffice.” Iqbal, 129 S. Ct. at
1949. Similarly, a pleading that only “tenders naked assertions
devoid of further factual enhancement” will not suffice. Iqbal,
129 S. Ct. at 1949 (internal citations and alterations omitted).
Rule 8 “demands more than an unadorned, the-defendant-
unlawfully-harmed-me accusation.” Id. (citations omitted).
Finally, a few words are appropriate regarding what
documents are considered when a dismissal for failure to
state a claim is contemplated. Generally, when contemplating
a dismissal pursuant to Fed. R. Civ. P. 12(b)(6) or Fed. R.
Civ. P. 12(c), the following matters outside the four corners
of the complaint may be considered without triggering the
standard governing a motion for summary judgment: (1)
documents attached as an exhibit to the complaint or answer,
(2) documents incorporated by reference in the complaint
(and provided by the parties), (3) documents that, although
not incorporated by reference, are “integral” to the complaint,
or (4) any matter of which the court can take judicial notice
for the factual background of the case. 1
III. ANALYSIS
*4 After carefully considering whether Plaintiff's Amended
Complaint should be dismissed, the Court answers this
question in the affirmative for the reasons stated in
Defendant's memorandum of law. (Dkt. No. 13, Attach. 2, at
7-9 [Def.’s Mem. of Law].) To those reasons, the Court adds
the following analysis.
As an initial matter, the Court finds that Plaintiff's claims,
to the extent that they seek an invalidation of a Family
Court child support order, are barred by the Rooker-Feldman
doctrine. Under the Rooker-Feldman doctrine, a federal court
lacks subject-matter jurisdiction where the following four
elements are met: (1) the plaintiff has lost in state court;
(2) the plaintiff complains of injuries caused by the state
court judgment; (3) the plaintiff invites the district court
to review and reject the state court judgment; and (4) the
state court judgment was rendered before the district court
proceedings commenced. Ganiyu v. Lopez, 19-CV-11605,
2020 WL 1467356, at *2 (S.D.N.Y. Mar. 25, 2020) (citing
Hoblock v. Albany Cnty. Bd. of Elections, 422 F.3d 77, 85
[2d Cir. 2005]). It is evident from the Amended Complaint
that Plaintiff received a child support order against him, that
he now complains that the proceedings that resulted in that
order caused his alleged constitutional injuries, and that the
child support order was rendered before he commenced this
action. Additionally, although Plaintiff frames his argument
in terms of constitutional violations and inadequacies in the
proceedings underlying the support order, such arguments
amount to little more than a request for this Court to assess
whether the Family Court's reliance on the marriage license to
establish paternity was correct, something which this Court is
not permitted to do. See Kramer v. Dane, 17-CV-5253, 2018
WL 4489284, at *3 (E.D.N.Y. Sept. 19, 2018) (“[T]he fact that
plaintiffs assert that their constitutional rights were violated
during the state court proceedings does not except their claims
from the Rooker-Feldman doctrine.”); Davis v. Westchester
Cnty. Family Court, 16-CV-9487, 2017 WL 4311039, at *8
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(S.D.N.Y. Sept. 26, 2017) (finding “[t]he fact that Plaintiff is
challenging the constitutional adequacy of the proceedings is
of no help to him” in precluding application of the Rooker-
Feldman doctrine to his claims) (collecting cases). 2
*5 To the extent that Plaintiff seeks entitlement to relief
beyond a nullification of the child support order that would be
excepted from jurisdiction by the Rooker-Feldman doctrine,
the Court also finds that Plaintiff's claims pursuant to 42
U.S.C. § 1983 fail under Fed. R. Civ. P. 12(b)(6) as time-
barred. Plaintiff attached to the Amended Complaint a copy
of the Family Court's summons to a fact-finding hearing to
be held on July 30, 2012, before Support Magistrate Michael
J. Howley, and a copy of the Petition for Child Support filed
against Plaintiff that was the basis for that hearing. (Dkt.
No. 12, Attach. 1.) The Amended Complaint alleges that it
was the commencement of the proceedings against Plaintiff
through this petition in June 2012 that caused the deprivation
of his rights. (Dkt. No. 12, at 5 [Pl.’s Am. Compl.].) The
Supreme Court has held that, “[b]ecause § 1983 claims are
best characterized as personal injury actions ... a State's
personal injury statute of limitations should be applied in
all § 1983 claims.” Owens v. Okure, 488 U.S. 235, 240-41
(1989). The Supreme Court found in particular that New
York's general or residual statute related to personal injury
actions should be applied, which sets a three-year statute of
limitations. Owens, 488 U.S. at 249-50; accord, Phillips v.
City of New York, 304 F. Supp. 3d 305, 311 (E.D.N.Y. 2018).
Such statute of limitations begins “when a plaintiff has a
complete and present cause of action, that is when the plaintiff
can file suit and obtain relief,” or, in other words, “when the
wrongful act or omission results in damages, ... and once the
plaintiff knows or has reason to know of the injury which
is the basis of his action.” McDonough v. Smith, 898 F.3d
259, 265 (2d Cir. 2018) rev'd on other grounds McDonough
v. Smith, 139 S.Ct. 2149 (2019).
In this case, Plaintiff acknowledges in his Amended
Complaint that his alleged constitutional harms occurred as
a result of the child support proceedings against him in late
June 2012. (Dkt. No. 12, at 5 [Pl.’s Am. Compl.].) It is
therefore reasonable to find that Plaintiff knew or should have
known of the proceedings against him and the child support
order at the time those events occurred in 2012. Of note,
Plaintiff does not allege that he was never informed of either
the proceedings against him or of the child support order
itself until a later time. Nonetheless, Plaintiff did not file his
initial Complaint in this action until December 3, 2018, more
than six years later. (Dkt. No. 1 [Pl.’s Compl.].) Although
Plaintiff argues in his opposition memorandum of law that he
“promptly filed a complaint with the Federal District Court as
soon as he discovered his rights had indeed been violated,” he
offers no explanation in either the Amended Complaint or his
opposition memorandum of law as to why he seemingly did
not know of the alleged constitutional violations until 2018.
(Dkt. No. 15, at 5 [Pl.’s Opp'n Mem. of Law].) Additionally, it
does not matter when Plaintiff actually discovered a violation.
The relevant consideration is when he knew or had reason to
know of the alleged injury, and without any factual allegation
that Plaintiff was somehow left in the dark for six years
about the basis for the child support proceedings and order
against him (despite the factual statement in the order that
the proceeding against Plaintiff was authorized because he
and the child's mother had gotten married on July 24, 2010),
the Court cannot find that he has alleged facts plausibly
suggesting that he did not have reason to know of the alleged
injury as long ago as June of 2012. As a result, the Court finds
that Plaintiff's claims are barred by the statute of limitations.
The Court also finds that tolling is not warranted under
the circumstances alleged. Although the Second Circuit
recognizes the continuing violation doctrine, it has qualified
that the doctrine applies only to claims “composed of a
series of separate acts that collectively constitute one unlawful
practice,” or “claims that by their nature accrue only after
the plaintiff has been subjected to some threshold amount
of mistreatment.” Gonzalez v. Hasty, 802 F.3d 212, 220 (2d
Cir. 2015). Although Plaintiff alleges that the violations of
his rights “continue to this day” because he is still subject to
the child support order, the fact that he continues to suffer an
ongoing injury does not bring his claim under the auspices
of the continuing violation doctrine. In other words, each
payment Plaintiff is required to make under the child support
order is not a new and separate act and injury, but merely a
consequence of the initial act, namely, the proceedings and
the issuance of the child support order in 2012. Plaintiff had
a fully formed claim upon the occurrence of the relevant
proceedings and the issuance of the child support order. The
Court therefore declines to find that the continuing violation
doctrine applies to Plaintiff's claims, and finds instead that
there is no other apparent basis for tolling the statute of
limitations. Plaintiff's claims pursuant to 42 U.S.C. § 1983 are
therefore time-barred and must be dismissed.
*6 In the alternative to the finding that Plaintiff's claims are
time-barred and/or covered by the Rooker-Feldman doctrine,
the Court finds that he has not alleged facts plausibly stating
any claim upon which relief can be granted. As an initial
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matter, Defendant is correct that Plaintiff has again failed
to allege any facts plausibly suggesting a municipal custom,
policy, or practice to merit holding Defendant liable for the
alleged constitutional violations. The only apparent policy
identified by Plaintiff is the policy of allowing use of a
marriage license to create a presumption of paternity. (Dkt.
No. 12, at 5 [Pl.’s Am. Compl.].) However, as Defendant
argues, this “policy” is in fact a long-standing part of New
York common law, not merely a practice or rule put in
place by Defendant or the Clinton County Family Court.
See In re Findlay, 253 N.Y. 1, 6-7 (N.Y. 1930) (discussing
the presumption of legitimacy). Notably, Plaintiff has not
alleged facts plausibly suggesting that Defendant had a policy
of disallowing rebuttal of the presumption of legitimacy or
any other action of that nature that would have prevented
Plaintiff from providing evidence to rebut that presumption.
As a result, Plaintiff has not alleged facts plausibly suggesting
that the alleged constitutional violations were a result of any
policy imposed by Defendant, and the Court therefore finds
that Defendant cannot be held liable for the claims asserted
against it.
Even if Plaintiff had alleged facts plausibly suggesting the
existence of a municipal custom, policy, or practice, the Court
finds that Plaintiff has not stated a claim upon which relief
can be granted. Many of the claims asserted by Plaintiff
(i.e., that Defendant has stripped him of his status as a man,
violated his right to privacy, violated his right to raise his
child as he pleases, violated his right to trial by jury, and
defamed him) are either not facially viable legal claims under
the circumstances or are so vaguely asserted (i.e., without
sufficient supporting factual allegations) that they cannot be
found to plausibly state a claim upon which relief can be
granted. The Court therefore finds little need to discuss these
claims in any detail, but finds that they must be dismissed.
With regard to Plaintiff's due process claim, and particularly
Plaintiff's argument that Defendant's acceptance of the
marriage license as proof of paternity was a violation of
his right to due process, as the Court has previously found,
Plaintiff has not alleged facts plausibly suggesting that he
was denied the opportunity to present counter-evidence to
overcome the presumption that a child born in the context of
a marriage is the child of the married spouses. Rather, the
summons attached to the Amended Complaint notified him
of a fact-finding hearing that preceded the issuance of the
child support order. Plaintiff has not alleged facts plausibly
suggesting that he did not receive sufficient notice of the
commencement of the proceedings before the child support
order was enacted against him (or that he even attended
the hearing). Moreover, the summons specifically states that
“failure to appear will result in the entry of an order on default
unless service has been made by mail alone, in which event no
default may be entered without proof satisfactory to the court
that you have received actual notice of the commencement
of this proceeding.” (Dkt. No. 12, Attach. 1, at 1.) Without
any factual allegation plausibly suggesting that Plaintiff (a)
lacked notice of the hearing such that a default was improper,
or (b) attended the hearing but was denied the opportunity to
provide evidence to counter the presumption created by the
marriage license, the Court cannot find that he has alleged
facts plausibly suggesting that Defendant violated his due
process rights in relying on the marriage license when issuing
the child support order.
Plaintiff also argues that his due process rights were
violated by the fact that a Support Magistrate of the Family
Court granted the petition for child support because the
Federal Manual of Child Support requires that “[p]roceedings
conducted pursuant to either the expedited judicial or
expedited administrative process must be presided over an
individual who is not a judge of the court.” (Dkt. No. 15,
at 4 [Pl.’s Opp'n Mem. of Law].) However, even if Plaintiff
has alleged facts plausibly suggesting that Defendant violated
this provision of the Federal Manual of Child Support (a
finding that the Court does not make), he has made no factual
allegation plausibly suggesting how any such violation in
turn violated his due process rights under the United States
Constitution. 3
*7 Having already afforded Plaintiff an opportunity to
amend his Complaint, the Court finds that it need not grant
Plaintiff an opportunity to amend the Amended Complaint
to attempt to cure any of the above-mentioned deficiencies,
In any event, it finds those deficiencies to be substantive in
nature, due to the findings that the Court lacks subject-matter
jurisdiction to consider any claims that fall under the Rooker-
Feldman doctrine, and that any other potential claims are
untimely (and Plaintiff has not offered any indication that he
could allege facts to plausibly suggest that those claims were
in fact timely).
ACCORDINGLY, it is
ORDERED that Defendants’ motion to dismiss (Dkt. No. 13)
is GRANTED; and it is further
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ORDERED that Plaintiff's Amended Complaint (Dkt. No.
12) is DISMISSED. All Citations
Not Reported in Fed. Supp., 2020 WL 1923236
Footnotes
1 See Fed. R. Civ. P. 10(c) (“A copy of any written instrument which is an exhibit to a pleading is a part thereof
for all purposes.”); L-7 Designs, Inc. v. Old Navy, LLC, No. 10-573, 2011 WL 2135734, at *1 (2d Cir. June 1,
2011) (explaining that conversion from a motion to dismiss for failure to state a claim to a motion for summary
judgment is not necessary under Fed. R. Civ. P. 12[d] if the “matters outside the pleadings” in consist of [1]
documents attached to the complaint or answer, [2] documents incorporated by reference in the complaint
(and provided by the parties), [3] documents that, although not incorporated by reference, are “integral” to the
complaint, or [4] any matter of which the court can take judicial notice for the factual background of the case);
DiFolco v. MSNBC Cable L.L.C., 622 F.3d 104, 111 (2d Cir. 2010) (explaining that a district court considering
a dismissal pursuant to Fed. R. Civ. 12(b)(6) “may consider the facts alleged in the complaint, documents
attached to the complaint as exhibits, and documents incorporated by reference in the complaint.... Where
a document is not incorporated by reference, the court may neverless consider it where the complaint relies
heavily upon its terms and effect, thereby rendering the document ‘integral’ to the complaint.... However, even
if a document is ‘integral’ to the complaint, it must be clear on the record that no dispute exists regarding the
authenticity or accuracy of the document. It must also be clear that there exist no material disputed issues of
fact regarding the relevance of the document.”) [internal quotation marks and citations omitted]; Chambers
v. Time Warner, Inc., 282 F.3d 147, 152 (2d Cir. 2009) (“The complaint is deemed to include any written
instrument attached to it as an exhibit or any statements or documents incorporated in it by reference.”)
(internal quotation marks and citations omitted); Int'l Audiotext Network, Inc. v. Am. Tel. & Tel. Co., 62 F.3d
69, 72 (2d Cir. 1995) (per curiam) (“[W]hen a plaintiff chooses not to attach to the complaint or incorporate
by reference a [document] upon which it solely relies and which is integral to the complaint,” the court may
nevertheless take the document into consideration in deciding [a] defendant's motion to dismiss, without
converting the proceeding to one for summary judgment.”) (internal quotation marks and citation omitted).
2 The Court notes that, although Defendant argues that subject-matter jurisdiction is lacking over Plaintiff's
claims based on the domestic relations exception, the Second Circuit recently held that the domestic relations
exception does not apply in federal-question cases. Deem v. DiMell-Deem, 941 F.3d 618, 621 (2d Cir. 2019).
Although the Second Circuit also found that, notwithstanding the inapplicability of the domestic relations
exception, the separate domestic relations abstention doctrine does apply to federal-question cases, the
Court need not determine whether abstention would be appropriate in this case based on its finding that
the Rooker-Feldman doctrine divests the Court of subject-matter jurisdiction over any claims that would be
covered by that abstention. Finally, the Court notes that it may sua sponte consider the Rooker-Feldman
doctrine (even though Defendant never invoked it) because pursuant to Fed. R. Civ. P. 12(h)(3), the Court
may sua sponte consider whether it lacks subject-matter jurisdiction over a claim.
3 Of note, the New York Family Court Act indicates that support magistrates are in fact not “a judge of the
court” as Plaintiff appears to assert. See N.Y. Fam. Ct. § 439(a) (indicating that, although support magistrates
are appointed to have authority over certain matters related to support proceedings, their findings in many
cases are limited or overseen by “a judge of the court”). Given that Plaintiff himself acknowledges that the
decision-maker on the support petition was a “Family Court Support Magistrate” (an acknowledgment that is
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confirmed by the attachment to the Amended Complaint), the Court finds that Plaintiff has not alleged facts
plausibly suggesting that the use of a support magistrate was in anyway contrary to federal law or policy.
End of Document © 2026 Thomson Reuters. No claim to original U.S. Government Works.
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Kweller v. County of Broome, Slip Copy (2025)
© 2026 Thomson Reuters. No claim to original U.S. Government Works. 1
2025 WL 3280821
Only the Westlaw citation is currently available.
United States District Court, N.D. New York.
Leor KWELLER and Zoe Liberman, Plaintiffs,
v.
The COUNTY OF BROOME et al., Defendants.
3:25-CV-343 (AJB/ML)
|
Signed November 25, 2025
Attorneys and Law Firms
Andrea L. Zellan, Sarafa Zellan PLLC, New York, NY, Karen
A. Newirth, Newirth Linehan PLLC, New York, NY, Oscar
Michelen, Michelen Law, P.C., Mineola, NY, for Plaintiffs.
James C. Knox, Alishah Elena Bhimani, Hacker Murphy LLP,
Troy, NY, for Defendant Alyssa Congdon.
Kavitha Janardhan, Lawrence M. Ordway, Jr., Bousquet
Holstein PLLC—Syracuse Office, Syracuse, NY, for
Defendant Samantha Herceg.
DECISION and ORDER
Anthony J. Brindisi, United States District Judge:
I. INTRODUCTION
*1 On March 18, 2025, Leor Kweller (“plaintiff”) and
his wife, Zoe Liberman (“Ms. Liberman”) filed this 42
U.S.C. § 1983 action against defendants Hailey Demkovich,
Samantha Herceg, the City of Binghamton (the “City”),
City Police Chief Joseph Zikuski (“Chief Zikuski”), City
Police Captain Cory Minor (“Captain Minor”), City Police
Investigator Amanda Miller (“Investigator Miller”), the
County of Broome (the “County”), County District Attorney
Michael Korchak (“DA Korchak”), County Chief Assistant
District Attorney Mark Loughran (“Chief ADA Loughran”),
County Assistant District Attorneys Alyssa Congdon (“ADA
Congdon”) and Amanda Cronin (“ADA Cronin”), Broome
County District Attorney's Office Investigator Jeff Wagner
(“BCDA Investigator Wagner”), and unidentified Broome
County District Attorney's Office and City Police Department
employees numbered one through ten (the “Does”). Dkt. No.
1.
In short, plaintiff alleges that Hailey Demkovich and
Samantha Herceg falsely accused him of rape, the
Binghamton Police Department (“BPD”) inadequately
investigated those false allegations, and the Broome
County District Attorney's Office (the “BCDA”) deliberately
disregarded exculpatory evidence and chose to prosecute him
anyway. See generally Dkt. No. 1. The Broome County Court
ultimately granted plaintiff's motion to dismiss all criminal
charges against him on May 31, 2023, and the BCDA's appeal
of that decision was withdrawn on February 20, 2024. Id. ¶¶
191–92.
The twelve-count complaint asserts § 1983 claims for “False
Arrest and Malicious Prosecution” (Count I), “Due Process
and Denial of the Right to a Fair Trial” (Count II), “Failure
to Intervene” (Count III), “Supervisory Liability” (Count
IV), “Monell Liability” (Counts V & VI), “Civil Rights
Conspiracy” (Count VII), as well as related state law claims
for “False Arrest and Malicious Prosecution” (Count VIII),
“Intentional, Reckless, or Negligent Infliction of Emotional
Distress” (Count IX), violations of Article I, sections 6 and 12
of the New York State Constitution (Count X), “Respondeat
Superior” (Count XI), and “Abuse of Process” (Count XII).
Dkt. No. 1, ¶¶ 191–302. 1
Defendants Hailey Demkovich and Samantha Herceg
answered the complaint, Dkt. Nos. 37, 39, but the remaining
defendants moved to dismiss the pleading pursuant to Federal
Rule of Civil Procedure 12(b)(6). Dkt. Nos. 19, 27, 29–31, 37
Defendants’ motions have been fully briefed, 2 see Dkt. Nos.
43–44, 46–47, 53–54, 56, 58, 61, and will be considered on
the basis of the submissions without oral argument.
II. BACKGROUND
The following facts are taken from the complaint and will
be assumed true for the purpose of assessing defendants’
motions to dismiss.
On the night of November 26, 2021, plaintiff accompanied his
brother, Yaron Kweller (“Yaron”), to downtown Binghamton,
New York, to visit “several of the bars and restaurants
Yaron ... owns in partnership with others,” including Dos
Rios Cantina, the Colonial, and the Stone Fox. Dkt. No. 1
(“Compl.”) ¶ 28.
*2 Around 10:00 p.m., the brothers arrived at Dos Rios
Cantina, staying for some time before going to the Colonial
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and, eventually, the Stone Fox. Compl. ¶ 30. At the Stone Fox,
the brothers met up with Jordan Rindgen (“Rindgen”). Id. ¶
31. Rindgen was the general manager of the Stone Fox, the
Colonial, and Dos Rios Cantina. Id.
After Rindgen completed his shift at the Stone Fox, he and the
brothers went to Dillinger's, a nearby bar not owned by Yaron.
Compl. ¶ 31. The three arrived at Dillinger's sometime after
midnight. Id. ¶ 32. There, an unknown woman, later identified
as Samantha Herceg (“Herceg”), approached plaintiff, Yaron,
and Rindgen. Id. Herceg purchased a round of alcoholic
beverages and shots of alcohol for the men. Id.
Around 2:00 a.m., plaintiff, Yaron, Rindgen, and Herceg
walked to the Stone Fox. Compl. ¶¶ 32–33. The Stone Fox
had closed for the night, but Rindgen went inside to retrieve
a bottle of wine and canned alcoholic seltzers for the group.
Id. at 33. The four then traveled to Yaron's business office,
which was located nearby. Id. ¶ 34. While at Yaron's office,
Herceg texted her friends in a group message and invited them
to come to the office. Id. ¶ 35. Among those invited was
Demkovich, who agreed to join, arriving at Yaron's office a
short time later. Id. ¶¶ 37–38.
Once Demkovich arrived, the group—now consisting of
plaintiff, Yaron, Rindgen, Herceg, and Demkovich—returned
to the Colonial. Compl. ¶ 41. There, Herceg and Demkovich
(the “complainants”) ordered shots of alcohol and began to
kiss each other. Id. ¶ 43. The complainants approached and
kissed Rindgen, who was socializing with plaintiff and Yaron.
Id. ¶ 44. Then, the complainants “danced together in a sexual
manner,” and “danced sexually with Yaron.” Id. At some
point, Herceg kissed plaintiff. Id. ¶ 59. Surveillance cameras
inside the Colonial captured footage of these events. Id. ¶ 45.
Around 3:00 a.m., the Colonial closed for the night, and the
five returned to Yaron's office. Compl. ¶ 46. The complainants
went into the bathroom together, emerging partially undressed
before disrobing completely and engaging in sexual contact
with one another in front of plaintiff, Yaron, and Rindgen.
Id. ¶¶ 49–50. After that, Rindgen and the complainants used
cocaine together. Id. ¶ 51.
Then, Ringden and Demkovich “began kissing and touching
each other sexually.” Compl. ¶ 53. “Herceg [went] over to
the couch where [plaintiff] was sitting and tried to kiss him.”
Id. ¶ 52. Herceg “stated that she wanted [plaintiff] to have
sex with her and ejaculate inside her,” but plaintiff “took no
action towards ... Herceg at that time or at any time during the
encounter.” Id. Meanwhile, “Demkovich initiated oral sex on
Yaron.” Id. ¶ 53. Rindgen moved away from Demkovich and
Yaron and “began having consensual contact with ... Herceg.”
Id. ¶ 54.
“[A]pproximately forty-five minutes after the group had
returned to the office for the second time ... Herceg and
Demkovich told [p]laintiff, his brother Yaron, and ... Rindgen
that they were ready to go home.” Compl. ¶ 55. Before
leaving, the complainants “appeared to be in a good mood
and were joking with [plaintiff], Yaron ..., and [ ] Rindgen.”
Id. ¶ 56. Surveillance footage showed complainants leaving
plaintiff's office and walking toward a parking garage at 3:48
a.m. on November 27, 2021. Id. ¶ 91.
*3 Later that day, the complainants reported to the New
York State Police that they had been sexually assaulted and
underwent rape examinations. Compl. ¶¶ 76, 175(a). The
State Police advised the complainants to contact BPD. Id. ¶
76. That evening, Demkovich's boyfriend called the Colonial
to report that the owners had drugged and raped Demkovich
the night before. Id. ¶ 62. Rindgen, who was also the general
manager of the Colonial, informed Yaron that Demkovich's
boyfriend had called, and Yaron contacted a friend in BPD,
Detective Bob Fimbres, who confirmed that a report had been
filed against the men. Id. ¶¶ 64–65. Yaron advised plaintiff of
the complaint, and both men retained counsel. Id. ¶¶ 66–67.
On November 28, 2021, BPD Investigator Miller was
assigned to investigate the complainants’ allegations.
Compl. ¶ 77. Investigator Miller separately interviewed the
complainants, who restated their accusations and provided
text messages and photographs from the night of the alleged
assault. Id. ¶¶ 78–79. Demkovich allegedly told Investigator
Miller that she was questioning if she was, in fact, raped,
or if the physical or sexual contact was consensual, but
this statement was never recorded. Id. ¶ 82. Two days
later, plaintiff's attorney provided Investigator Miller with
surveillance footage from inside the Colonial. Id. ¶ 88.
One week after the alleged sexual assaults, Investigator Miller
and her supervisor, Captain Minor, executed a search warrant
at Yaron's office, where the alleged assaults occurred, but they
did not recover any physical evidence. Compl. ¶ 90. BPD also
obtained surveillance footage from third parties that covered
the street area surrounding Yaron's office. Id. ¶ 91.
On December 8, 2021, newly hired ADA Congdon attended
a meeting with DA Korchak, Chief ADA Loughran, Captain
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Minor, and Investigator Miller to discuss the complainants’
allegations and the ongoing investigation. Compl. ¶¶ 103–
04. Chief ADA Loughran suggested that BPD and the BCDA
attempt to obtain the complainants’ phones. Id. ¶ 105. After
the meeting, DA Korchak and Chief ADA Loughran assigned
ADA Congdon to the investigation. Id. ¶ 106. ADA Congdon
had previously worked as a criminal defense lawyer for nearly
a decade, but she had no experience working as a prosecutor.
Id. ¶ 103(f).
Meanwhile, rumors of the complainants’ allegations spread
throughout the Binghamton community. Compl. ¶ 96. Public
outrage intensified as local news outlets picked up the story.
Id. On December 10, 2021, BPD issued a press release
stating that it was “investigating a[n] ... incident involving the
owners of the Colonial,” and that it was “aware of additional
allegations being made on social media.” Id. ¶ 98. Likewise,
DA Korchak issued a video statement, acknowledging that
“his office received ‘numerous’ emails and phone calls
regarding ‘several incidents that occurred recently’ in Broome
County,” and “encourag[ing] those with knowledge to contact
the BCDA[ ] or local police departments.” Id. ¶ 99. The
next day, “more than 500 protestors gathered in front of the
Colonial and Dos Rios and marched to the Stone Fox.” Id. ¶
100.
On December 14, 2021, Chief ADA Loughran, Investigator
Miller, and ADA Congdon met separately with the
complainants, seeking consent to access their electronic data,
but the complainants refused. Compl. ¶ 109. On December 22,
2021, plaintiff's defense attorney filed an order to show cause
in county court requesting preservation of the complainants’
cell phone data. Id. ¶ 113. The BCDA opposed this motion,
but continued its own attempts to obtain the complainants’
consent to access this data. Id. ¶¶ 114–15. Plaintiff's motion
was denied on January 21, 2022, because, at that time, there
was no criminal action pending against plaintiff or Yaron. Id.
¶ 121.
*4 Sometime during the investigation, the complainants
retained attorney Thomas Saitta. Compl. ¶ 114. On January
14, 2022, Saitta informed ADA Congdon that he had a folder
containing printouts of the complainants’ electronic data (the
“Saitta folder”). Id. ¶ 115. ADA Congdon directed BCDA
Investigator Jeff Wagner to pick up the Saitta folder, but he
never did. Id. ¶¶ 116–17. Throughout January 2022, members
of the BCDA, including ADA Congdon and Chief ADA
Loughran, continued to request the complainants’ consent to
extract electronic data from their phones. Id. ¶ 118. Those
attempts were unsuccessful. Id.
Though ADA Congdon held “ultimate decision-making
authority” over the investigation, she met with DA Korchak
and Chief ADA Loughran multiple times between November
2021 and February 2022. Compl. ¶¶ 123–25. ADA Congdon
also worked closely with BPD during the investigation. Id.
¶ 120. For instance, she worked with Investigator Miller to
draft a search warrant for plaintiff's DNA. Id. According
to the complaint, “[ADA] Congdon did not know that she
could apply directly to a court to obtain a suspect's DNA and
neither she, ... [Investigator] Miller, or anyone at BCDA[ ]
or BPD knew how to draft an appropriate application.” Id.
Consequently, “[n]o search warrant or motion to compel a
buccal swab or a DNA sample was ever completed.” Id. ¶ 121.
Eventually, on February 22, 2022, ADA Congdon met with
BPD officers and decided to file criminal charges against
plaintiff, Yaron, and Rindgen in local court. Compl. ¶ 131.
Members of the press were present at the courthouse when
the three were arrested and charged. Id. ¶ 133. Plaintiff was
charged with “Rape in the Third Degree in violation of New
York Penal Law section 130.25(d),” a Class E felony. Id. ¶
134. He entered a plea of not guilty. Id. ¶ 131.
At some point, the BCDA hired ADA Cronin to assist ADA
Congdon with plaintiff's prosecution. Compl. ¶ 127. By that
time, ADA Cronin had worked as a sex crimes prosecutor for
several years. Id.
Even after his arrest, plaintiff continued to urge members of
BPD and the BCDA to obtain the complainants’ electronic
data. Compl. ¶ 144. On or around March 10, 2022, plaintiff
“filed a motion pursuant to C.P.L. § 245.50(3) seeking to
compel preservation and disclosure of forensic images of
[the complainants’] cell phones.” Id. ¶ 144(b). But BPD
and the BCDA opposed, and plaintiff's motion was denied,
“based, in part, on the allegedly speculative nature of
[plaintiff]’s arguments that the phones would contain relevant,
material, admissible evidence and due in part to the lack of
jurisdiction over what was at that time a local court matter.”
Id. Plaintiff also subpoenaed cell phone carriers and social
media companies in an attempt to independently obtain the
complainants’ electronic data. Id. ¶ 144(c). Unbeknownst to
plaintiff at that time, Herceg had obtained a new phone and
iCloud account sometime in March 2022. Id. ¶ 185.
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At the end of March 2022, ADA Congdon presented the case
to the grand jury with assistance from Chief ADA Loughran
and ADA Cronin. Compl. ¶¶ 167, 169. According to plaintiff,
ADA Congdon inaccurately instructed the grand jury on the
law. Id. ¶ 169(a). The grand jury returned an indictment as
to plaintiff, charging him with: “Rape in the First Degree in
violation of New York Penal Law § 130.35(2), a Class ‘B’
violent felony... and Sexual Abuse in the First Degree, in
violation of New York Penal Law § 130.65(2), [a] [C]lass ‘D’
violent felony.” Id. ¶ 170. Plaintiff was arraigned in Broome
County Court and pleaded not guilty to all charges on March
31, 2022. Id. ¶ 171.
*5 In June 2022, plaintiff consented to a buccal DNA swab.
Compl. ¶ 175. His DNA was compared with the material
obtained during Herceg's rape examination. Id. ¶ 175(a). A
two-male DNA profile mixture was obtained from Herceg's
sample, despite her earlier claim that she had not had any other
sexual partners for more than a month prior to the alleged
assault. Id. ¶ 175(b). At some point during the investigation,
though, Herceg informed authorities of a possible consensual
sexual partner from the relevant period, but investigators
excluded that person as a contributor. Id. ¶ 175 (d). Plaintiff
was also excluded as a contributor to the mixture obtained
from Herceg's rape kit. Id. ¶ 175(c).
On July 11, 2022, counsel for plaintiff, Yaron, and Rindgen
moved to compel production of the complainants’ phones.
Compl. ¶ 177. On August 5, 2022, while the motion to compel
was still pending, ADA Congdon notified the defense that the
complainants agreed to let BPD image their phones. Id. ¶ 178.
Three months later, the BCDA received a hard drive with the
extractions of the complainants’ electronic data. Id. ¶ 179.
The BCDA insisted that plaintiff's counsel review the data
at BCDA's office, despite lacking the technology needed to
review the materials efficiently. Id. ¶ 181. Plaintiff's counsel
repeatedly requested access to the hard drive, but the BCDA
refused to do so absent a protective order. Id. ¶ 182.
In January 2023, plaintiff's counsel sought court intervention,
and the presiding judge ordered ADA Congdon and ADA
Cronin to turn over the hard drive. Compl. ¶ 183. The parties
executed a protective order, and ADA Congdon tendered a
report containing the data extracted from Demkovich's phone
(the “BCDA report”). Id. ¶ 186. Plaintiff never received a
copy of the relevant data from Herceg's phone because she
had obtained a new phone and iCloud account in March 2022.
Id. ¶ 185.
On February 14, 2023, plaintiff's attorney and private
investigators began reviewing the BCDA report. Compl. ¶
186. They discovered relevant exculpatory and impeaching
text messages. Id. They also learned that both complainants
turned over their electronic data from the relevant period
to their attorney, Saitta, before Herceg obtained a new cell
phone. Id. ¶ 188. For some reason, though, the BCDA still
had not retrieved the Saitta folder. Id. ¶ 189.
According to plaintiff, the following messages were
exchanged between the complainants and third parties and
between the complainants themselves: 3
a. November 27, 2021 - Defendant Demkovich to a Third
Party: “I don't want anyone to know....” “And it was
consensual. I knew what was happening. But those guys
should be fucking disgusted with themselves.”
b. November 27, 2021 - Defendant Demkovich to
Defendant Herceg: “And I remember saying to Jordan I
was like I better not get denied at any of ur bars.”
c. November 27, 2021 - Defendant Herceg to Defendant
Demkovich: “Like I can't have this get out...”
d. November 28, 2021 - Exchange between Defendant
Herceg and Defendant Demkovich (referencing
Defendant Miller): “I am not gonna show her those”
Herceg: “I don't think you should” Demkovich: “I am
100% not going to” Herceg: “I am worried about her
calling stupid f**king Bianca”
e. November 29, 2021 - Defendant Herceg to Defendant
Demkovich and a Third Party: “I'm settling for nothing
Less then a million”
f. November 29, 2021 - Defendant Herceg to Defendant
Demkovich and a Third Party: (referring to Plaintiff and
Mr. Rindgen) “I want the Benz and the Beamer” “And
both their houses”
g. November 29, 2021 - Defendant Herceg and Defendant
Demkovich and a Third Party: (referring to Plaintiff and
Mr. Rindgen) “I want all their bars ...”
h. November 29, 2021 - Defendant Herceg to Defendant
Demkovich: “Yup 100% but i do remember being at
Alisha's and when she said we were at Jordan's i was like
wtf we were w them? And she was like yeah haikey said
u guys got raped and obviously I'm still drunk I'm like
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whattt no way it doesn't even feel like I've had sex i don't
think anything happened and Alisha was like exactly”
*6 i. November 30, 2021 - Defendant Demkovich to
Defendant Herceg and Third Parties: “the reason i had
to call 911 is because when i told my parents my
dad literally got in the car and was headed straight to
downtown”
j. December 3, 2021 - Defendant Demkovich instant
messages to Defendant Herceg and Third Parties: “if you
guys have any photos of us drinking if u could delete
them that would be good” “we can't erase everything
but minimize it as much as possible” “Danayah maybe
archive ur disposals of them on insta” “i might just delete
any risky pics” “i need to go on my computer to delete
my vsco”
k. December 3, 2021 - Defendant Herceg instant message
to Defendant Demkovich: “I've deleted all my posts and
changed my user name to no lastnight and trying to
delete all my republishes”
l. December 3, 2021 from a Third Party to Defendant
Demkovich, Defendant Herceg, and Third Parties:
“i already deleted everything w [Herceg] in it and
everything hailet sent me to delete”
m. December 7, 2021 from a Third Party (“T.P.”) to
Defendant Demkovich: T.P.: “it da took me 5 mins of
silence to go all the way back up to the messages that
night” Demkovich.: “mad far and i don't even have them
bc i think i accidentally deleted them that night” T.P.:
“yeah i deleted them all out of your phone bc u were
going to dylan's [Demkovich's then boyfriend]”
n. December 7, 2021 from a Third Party to Defendant
Demkovich: “and then i told her that when [Herceg]
came over she told me she didn't have sex but she turned
the corner and saw you but thats all she could remember”
“bro yeah she [Herceg] was like that whole night i would
know if i got fucked i don't feel anything in my vagina
but it was prob bc bitch was numb af”
o. December 8, 2021 - Defendant Demkovich. to Defendant
Herceg: “okay so i'm”
p. slightly panicking at work because i was just reading
my texts from the day after the incident and i said to
danayah that it was consensual and that i knew what
was happening. but the whole day after the incident i
was questioning if i got raped and i thought it might be
classified as consensual because i didn't say no.”
q. December 8, 2021 - Defendant Herceg to Defendant
Demkovich: “Trust me i was panicking too [about the
text messages] Bc i said in the groupchat that night “I'd
fuck”
r. December 8, 2021 - Defendant Herceg to Defendant
Demkovich: “I don't think you have anything to worry
about. Bc if she did get the subpoena [for the phone
messages] I'm sure she only got it from the times of like
1-4am”
s. December 8, 2021 - from Defendant Herceg. to
Defendant Demkovich and Third Parties: “Yes i deleted
everything then made it private and changed everything”
t. December 27, 2021 - Defendant Demkovich to her
mother - (after defense counsel served and filed an
Order to Show Cause on December 22, 2021, requesting
preservation of the Defendants Herceg and Demkovich's
cell phones): “i told you i have a message of me saying
it was consensual the day after, because i was confused
and not in the right head space if the defense sees it, i'm
done”
u. December 27, 2021 - Defendant Demkovich. to
Defendant Herceg.: “and i have a message of me saying
it's consensual” “the day after”
v. December 27, 2021 - Defendant Herceg to Defendant
Demkovich: “I have messages w Alisha saying I'd fuck
ring ding [Jordan Rindgen]”
*7 w. December 27, 2021 - Defendant Demkovich. to
Defendant Herceg: “yeah they will take the message of
me saying it's consensual and i'm done” “the lawyer tom
[Saitta] needs to make it so they can't get our phones
period”
x. December 28, 2021 - Defendant Demkovich to her
mother: “I told them [BPD] the next day I was
questioning if what happened to me was actually rape ...”
y. December 28, 2021 - Defendant Demkovich to her
mother: “i accidentally deleted one text it was in the
group text”
z. December 28, 2021 - text message from Defendant
Demkovich to Defendant Herceg: “i told him i said it
was consensual” “i'm just worried that I said more than
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once it was consensual” “i said something about it being
consensual”
aa. January 13, 2022 - Defendant Demkovich to her
mother: “I just don't want [Herceg's] parents to judge me
for saying it was consensual”
bb. January 14, 2022 - Defendant Demkovich to Defendant
Herceg: “i really don't see why they'd still want to
supoena our phones after i've provided all of That” “so
fingers crossed”
cc. June 6, 2022 - Defendant Demkovich to her mother:
“and the text messages i sent really fuck me up” “i didn't
know because i didn't say no”
dd. June 13, 2022 - Defendant Herceg to Defendant
Demkovich: “... Fuck you hailey you're a piece of shit.
You think you sit in a high horse bc you ‘came looking
for me’ that night ‘only one who cared’ no you didn't. If
you thought I was in such danger like you say then you
would've called the cops you would've brought everyone
there w you to get me out. You came for what you
thought was gonna be a good time. You're a garbage
human who see nothing wrong w their actions.”
ee. June 15, 2022 - Defendant Herceg to a Third Party: “She
[Demkovich] told Bianca on FaceTime on her walk to
‘save me’ that she wanted to fuck Jordan [Rindgen], she
wanted to go because she wanted to sleep w Jordan. Not
to come save me” ... “And she came for what she thought
was going to be a good time” ... “I don't remember
anything from that night” “Everything I know is from
he[r] [Demkovich]”
ff. July 25, 2022 - Defendant Demkovich to her mother:
“i wanna drop the charges” Demkovich's mother:
“[Herceg] got a new phone...” “No access to her old
cloud” Demkovich: “and i texted [Herceg] and she got a
new phone so they didn't subpoena hers”
Compl. ¶ 74(a)–(ff) (errors in original).
On February 24, 2023, counsel for plaintiff, Yaron, and
Rindgen filed a joint motion seeking dismissal of all charges.
Compl. ¶ 191. Plaintiff's motion was granted, and the Broome
County Court dismissed all charges against him. Id. ¶ 192.
“In June 2023, [DA] Korchak and [ADA] Congdon filed a
notice of appeal of the decision dismissing the indictment
as to [p]laintiff.” Compl. ¶ 196. Plaintiff's attorney “made
repeated attempts to contact [DA] Korchak and [ADA]
Congdon ... to try to meet to discuss the case and lack of any
evidence against the [p]laintiff and to urge the BCDA[ ]not to
perfect the appeal of the criminal case dismissal.” Id. ¶ 197.
“On October 31, 2023, Yaron ... and ... Rindgen were
acquitted of all charges” after a jury trial. Compl. ¶ 200.
Thereafter, Yaron's former defense attorney, Paul Battisti,
was elected Broome County District Attorney, and a special
prosecutor was appointed to handle the BCDA's appeal of
plaintiff's case. Id. ¶ 202. The special prosecutor withdrew the
appeal on or about February 20, 2024. Id. ¶ 203.
III. LEGAL STANDARD
*8 The Federal Rules of Civil Procedure permit a party
to move to dismiss a pleading for “failure to state a claim
upon which relief can be granted.” Fed. R. Civ. P. 12(b)(6).
To survive dismissal, “a complaint must contain sufficient
factual matter, accepted as true, ‘to state a claim to relief that
is plausible on its face.’ ” Ashcroft v. Iqbal, 556 U.S. 662,
678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009) (quoting Bell
Atl. Corp. v. Twombly, 550 U.S. 544, 570, 127 S.Ct. 1955, 167
L.Ed.2d 929 (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.” Id.; see also Ginsburg v. City of Ithaca,
839 F. Supp. 2d 537, 540 (N.D.N.Y. 2012) (“[T]he ‘[f]actual
allegations must be enough to raise a right to relief above the
speculative level.’ ”) (quoting Twombly, 550 U.S. at 555, 127
S.Ct. 1955).
To assess this facial plausibility requirement, the court “must
accept as true all of the factual allegations contained in the
complaint,” Erickson v. Pardus, 551 U.S. 89, 94, 127 S.Ct.
2197, 167 L.Ed.2d 1081 (2007), and draw all reasonable
inferences in favor of the plaintiff, Chambers v. Time Warner,
Inc., 282 F.3d 147, 152 (2d Cir. 2002). In doing so, the court
generally confines itself to the facts alleged in the pleading,
documents attached to the complaint or incorporated into it by
reference, and matters of which judicial notice may be taken.
Goel v. Bunge, Ltd., 820 F.3d 554, 559 (2d Cir. 2016).
IV. DISCUSSION
Chief Zikuski, Captain Minor, Investigator Miller, DA
Korchak, Chief ADA Loughran, ADA Cronin, ADA
Congdon, the City, and the County have moved to dismiss all
of plaintiff's claims against them. See Dkt. No. 40, 57, 65, 67,
74.
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Plaintiff asserts a number of § 1983 claims against the moving
defendants, including:
(1) False arrest against Chief Zikuski, Captain Minor,
Investigator Miller (collectively, the “individual BPD
defendants”), DA Korchak, ADA Cronin, ADA
Congdon, and BCDA Investigator Wagner, Compl. ¶¶
220–27;
(2) Malicious prosecution against the individual BPD
defendants, DA Korchak, ADA Cronin, ADA Congdon,
and BCDA Investigator Wagner, id.;
(3) Violations of his fair trial and due process rights
against Captain Minor, Investigator Miller, DA Korchak,
ADA Cronin, ADA Congdon, and BCDA Investigator
Wagner, id. ¶¶ 228–36;
(4) Failure to intervene against the individual BPD
defendants, DA Korchak, Chief ADA Loughran, ADA
Congdon, ADA Cronin, (collectively, the “prosecutor
defendants”), BCDA Investigator Wagner, the City, and
the County, id. ¶¶ 237–42;
(5) Supervisory liability against Chief Zikuski, Captain
Minor, DA Korchak, and Chief ADA Loughran, id. ¶¶
243–50;
(6) Municipal liability against Chief Zikuski, Captain
Minor, the City, and the County, id. ¶¶ 251–95; and
(7) Civil rights conspiracy claims against the individual
BPD defendants, the prosecutor defendants, BCDA
Investigator Wagner, the City, and the County, id. ¶¶
296–301.
Along with his § 1983 claims, plaintiff brings several related
state law claims including:
(1) False arrest against the individual BPD defendants, the
prosecutor defendants, BCDA Investigator Wagner, the
City, and the County, Compl. ¶¶ 302–16;
(2) Malicious prosecution against the individual
BPD defendants, the prosecutor defendants, BCDA
Investigator Wagner, the City, and the County, id.;
(3) Intentional, reckless, or negligent infliction of
emotional distress against the individual BPD
defendants, the prosecutor defendants, BCDA
Investigator Wagner, the City, and the County, id. ¶¶
316–21;
(4) Violations of Article I, sections 6 and 12 of the
New York State Constitution against the individual
BPD defendants, the individual BCDA defendants, the
BCDA, the City, and the County, id. ¶¶ 322–26;
*9 (5) Respondeat superior against the City and the
County, id. ¶¶ 327–31; and
(6) Abuse of process against Chief Zikuski, DA Korchak,
and the City, id. ¶¶ 332–39.
Plaintiff's wife, Ms. Liberman, is also a plaintiff in this action,
and she brings a claim for damages that she allegedly suffered
“as a ... result of her husband's wrongful arrest and malicious
prosecution.” Compl. ¶ 9.
Defendants primarily argue that plaintiff has failed to
plausibly allege any of his claims against them, and that
Ms. Liberman has similarly failed to state an actionable
claim for damages. See generally, Dkt. Nos. 19-1 (“Korchak
& Loughran Mem.”); 27-1 (“County Mem.”); 29-1 (“BPD
Mem.”); 30 (“Cronin Mem.”); 31-1 (“Congdon Mem.”); 37-1
(“Wagner Mem.”).
In addition, the prosecutor defendants contend that, to the
extent plaintiff might have plausibly alleged any of his claims
against them, they are entitled to absolute or, alternatively,
qualified immunity. Korchak & Loughran Mem. at 11–17;
Cronin Mem. at 10–14; Congdon Mem. at 7–21.
In opposition, plaintiff contends that he has plausibly
alleged his claims against each of the moving defendants,
and maintains that neither absolute nor qualified immunity
applies. See Dkt. No. 44 (“Pl.’s First Opp.”); Dkt. No. 47
(“Pl.’s Second Opp.”).
A. Absolute Immunity
The prosecutor defendants argue that absolute prosecutorial
immunity bars plaintiff's federal and state law claims against
them. Korchak & Loughran Mem. at 11–16; Cronin Mem.
at 10–12; Congdon Mem. at 7–18. In opposition, plaintiff
maintains that the prosecutor defendants’ alleged conduct
falls “outside the scope of absolute immunity.” Pl.’s Second
Opp. at 41.
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As the Second Circuit has repeatedly acknowledged,
the principles affording prosecutors absolute prosecutorial
immunity from § 1983 claims for damages are the same as
those that protect prosecutors from civil liability under state
law. Shmueli v. City of N.Y., 424 F.3d 231, 237–38 (2d Cir.
2005) (citing Rudow v. City of N.Y., 822 F.2d 324, 329 (2d
Cir. 1987)).
Absolute prosecutorial immunity is broad, applying even
in situations where a prosecutor is alleged to have acted
maliciously. Johnson v. Town of Colonie, 102 A.D.2d 925,
925, 477 N.Y.S.2d 513 (N.Y. App. Div. 3d Dep't 1984)
(“Actions performed by the prosecutor which are associated
with the prosecutorial phase of the criminal process ... bar
civil liability for such action, even if it be assumed that such
actions were done maliciously.”); Giraldo v. Kessler, 694
F.3d 161, 166 (2d Cir. 2012) (“[A]bsolute immunity applies
to protect the prosecutor even in the face of a complaint's
allegations of malicious or corrupt intent behind the acts.”).
“In determining whether absolute prosecutorial immunity
attaches, [courts] apply a ‘functional approach.’ ” Giraldo,
694 F.3d at 165 (quoting Hill v. City of N.Y., 45 F.3d 654,
660 (2d Cir. 1995)); see also Rodrigues v. City of N.Y., 193
A.D.2d 79, 86, 602 N.Y.S.2d 337 (N.Y. App. Div. 1st Dep't
1993) (“[L]ike federal courts, the courts of [New York] take
a functional approach when analyzing claims of immunity.”).
1. Advocacy Function
*10 Consistent with this functional approach, courts
routinely find prosecutors are absolutely immune for actions
taken in connection with their advocacy function. Johnson
v. Kings Cnty. Dist. Att'y’s Off., 308 A.D.2d 278, 285, 763
N.Y.S.2d 635 (N.Y. App. Div. 2d Dep't 2003) (“District
Attorneys are immune from civil liability for activities
‘intimately associated with the judicial phase of the criminal
process,’ meaning ‘initiating a prosecution and in presenting
the State's case.’ ”) (quoting Imbler v. Pachtman, 424 U.S.
409, 430–31, 96 S.Ct. 984, 47 L.Ed.2d 128 (1976)).
For instance, “a prosecutor enjoys absolute immunity
when determining which offenses to charge, initiating a
prosecution, presenting a case to a grand jury, and preparing
for trial.” Anilao v. Spota, 27 F.4th 855, 864 (2d Cir. 2022);
see also Blake v. City of N.Y., 148 A.D.3d 1101, 1104
(N.Y. App. Div. 2d Dep't 2017) (holding prosecutors entitled
to absolute immunity for “activities in processing criminal
charges after ... arrest ... based upon evidence assembled by
police”); Giraldo, 694 F.3d at 167 (same, for interviewing
putative victim after suspect was arrested); Flagler v. Trainor,
663 F.3d 543, 550 (2d Cir. 2011) (same, “for withholding/
preserving evidence to be used in connection with a criminal
prosecution”).
2. Investigative Function
However, absolute prosecutorial immunity does not shield
a prosecutor's investigative activities from liability. See
Simon v. City of N.Y., 727 F.3d 167, 172 (2d Cir. 2013)
(“Investigation, arrest, and detention have historically and
by precedent been regarded as the work of police, not
prosecutors, and ‘they do not become prosecutorial functions
merely because a prosecutor has chosen to participate.’
”) (quoting Day v. Morgenthau, 909 F.2d 75, 77–78 (2d
Cir.1990)).
“Although all investigative activity could be considered in
some sense to be ‘preparing for the initiation of judicial
proceedings,’ ... the Supreme Court has sought to draw a
line between ... preparatory steps that a prosecutor takes
to be an effective advocate of a case already assembled
and ... investigative steps taken to gather evidence.” Smith v.
Garretto, 147 F.3d 91, 94 (2d Cir. 1998) (quoting Buckley v.
Fitzsimmons, 509 U.S. 259, 273, 113 S.Ct. 2606, 125 L.Ed.2d
209 (1993)).
In doing so, “[t]he Court has identified ‘evaluating evidence
and interviewing witnesses’ as falling on the absolute
immunity side of the line, leaving ‘searching for the clues
and corroboration’ that might lead to a recommendation for
an arrest on the qualified immunity side.” Smith v. Garretto,
147 F.3d at 94 (quoting Buckley, 509 U.S. at 273, 113 S.Ct.
2606); Sculti v. Finley, 167 A.D.3d 796, 797 (N.Y. App. Div.
2d Dep't 2018) (“Conduct in connection with the application
for a search warrant is investigative in nature and, therefore, is
governed by qualified immunity.”); Buckley, 509 U.S. at 275,
113 S.Ct. 2606 (holding prosecutor not absolutely immune
for fabricating evidence during preliminary investigation);
Kirchner v. Cnty. of Niagara, 107 A.D.3d 1620, 1624, 969
N.Y.S.2d 277 (N.Y. App. Div. 4th Dep't 2013) (same, for
coaching witness to provide false information to police in
effort to reopen closed investigation).
3. Functional Analysis
The Court must look to the prosecutor defendants’ alleged
conduct to determine which acts, if any, are advocative in
nature and shielded by absolute prosecutorial immunity.
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i. DA Korchak & Chief ADA Loughran
DA Korchak and Chief ADA Loughran argue that they
are entitled to absolute immunity from plaintiff's claims
because “their alleged activities were entirely prosecutorial in
nature and were not of an investigatory nature.” Korchak &
Loughran Mem. at 11. Plaintiff disagrees, arguing that “[DA]
Korchak and [Chief ADA] Loughran personally approved
and authorized [p]laintiff's arrest.” Pl.’s Second Opp. at 45.
*11 “The directing of an investigation by police and other
law enforcement personnel[,]” is an investigative activity,
falling outside the scope of absolute immunity. Barbera v.
Smith, 836 F.2d 96, 101 (2d Cir. 1987); Claude H. v. Cnty. of
Oneida, 214 A.D.2d 964, 965, 626 N.Y.S.2d 933, 935 (1995)
(“Where a prosecutor goes outside his quasi-judicial role[,]
and acts as an investigator or police officer, he is entitled
only to qualified immunity.”). Here, the complaint contains a
number of allegations that detail DA Korchak and Chief ADA
Loughran's involvement in the investigation.
First, plaintiff alleges that DA Korchak and Chief ADA
Loughran worked together with ADA Congdon and police to
plan and execute the investigation, Compl. ¶¶ 103–06, 123,
and that Chief ADA Loughran also allegedly met with the
complainants in an attempt to gather evidence. Id. ¶¶ 109,
118. These actions fall outside the scope of DA Korchak's
and Chief ADA Loughran's prosecutorial function and are not
shielded by absolute prosecutorial immunity.
Second, plaintiff alleges that DA Korchak issued a video
statement “assert[ing] that his office received ‘numerous’
emails and phone calls regarding ‘several incidents that
occurred recently’ in Broome County ... and encourag[ing]
those with knowledge to contact the BCDA[ ] or local
police departments.” Compl. ¶ 99. Because a prosecutor's
“statements to the media are not entitled to absolute
immunity[,]” Buckley, 509 U.S. at 277, 113 S.Ct. 2606, DA
Korchak is not entitled to absolute immunity for his alleged
video statement.
Third, plaintiff alleges that DA Korchak and Chief ADA
Loughran failed to (1) supervise and train ADA Congdon; (2)
advise ADA Congdon of her discovery obligations; and (3)
correct her various mistakes of law. Compl. ¶¶ 121–22, 165–
66. However, prosecutors are absolutely immune for failing to
train or supervise their subordinates as to their prosecutorial
duties and obligations. See Van de Kamp v. Goldstein, 555
U.S. 335, 344, 129 S.Ct. 855, 172 L.Ed.2d 706 (2009)
(“[P]rosecutors involved in such supervision or training or
information-system management enjoy absolute immunity
from the kind of legal claims at issue here.”); see also
Crawford v. N.Y. Cnty. Dist. Att'y, 99 A.D.3d 600, 601, 953
N.Y.S.2d 23 (N.Y. App. Div. 1st Dep't 2012) (holding district
attorney entitled to absolute immunity where he allegedly
“discourage[d] ADAs from being respectful of individuals’
constitutional rights when prosecuting gun possession cases”)
(citing Van de Kamp, 555 U.S. at 344–46, 129 S.Ct. 855).
Accordingly, DA Korchak and Chief ADA Loughran are
absolutely immune from liability for their alleged failure
to instruct and advise ADA Congdon on her prosecutorial
responsibilities.
Absolute prosecutorial immunity also protects the remainder
of plaintiff's allegations against DA Korchak and Chief
ADA Loughran because they concern activities routinely
recognized as “intimately associated with the judicial
process.” Compl. ¶¶ 169 (presenting case to grand jury), 172
(filing certificate of compliance), 175(d) (failing to disclose
evidence), 176 (failing to preserve evidence after plaintiff's
indictment), 180 (failing to review evidence); 196 (filing
notice of appeal).
In sum, DA Korchak and Chief ADA Loughran are shielded
from liability for their involvement in plaintiff's prosecution
following his arrest, but not for their earlier investigative
conduct.
ii. ADA Cronin
Like DA Korchak and Chief ADA Loughran, ADA Cronin
argues that she is entitled to absolute prosecutorial immunity
because the complaint contains “no allegation that [ADA]
Cronin, at any point, worked outside of her prosecutorial
function.” Cronin Mem. at 11. Plaintiff disagrees, arguing
that he has plausibly alleged that ADA Cronin “participated
in investigative acts and decision[-]making pertaining to the
investigation.” Pl.’s Second Opp. at 45.
*12 “Among the acts for which a prosecutor is absolutely
immune is the initiation of a prosecution.” Schloss v. Bouse,
876 F.2d 287, 289 (2d Cir. 1989) (citing Imbler, 424 U.S.
at 430, 96 S.Ct. 984). A prosecutor also “enjoys absolute
immunity for failure to disclose exculpatory evidence,
because deciding what disclosure to make is part of
a prosecutor's role as advocate, and constitutes a core
prosecutorial function.” Schnitter v. City of Rochester, 556 F.
App'x 5, 7 (2d Cir. 2014) (summary order) (citing Warney v.
Monroe Cnty., 587 F.3d 113, 125 (2d Cir.2009)).
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Consequently, a prosecutor is protected by absolute immunity
for withholding exculpatory evidence from a grand jury. 4
See Hill, 45 F.3d at 653 (holding absolute immunity protected
assistant district attorney's decision to initiate prosecution and
withhold alleged Brady material); Drake v. City of Rochester,
96 Misc.2d 86, 408 N.Y.S.2d 847, 857 (N.Y. Sup. Ct. 1978)
(“[A] district attorney alleged to have withheld exculpatory
evidence from a Grand Jury, given improper advice to a
Grand Jury, suppressed and concealed evidence and conspired
with others to obtain a Grand Jury indictment, permitted the
presentation of false and misleading testimony to a Grand
Jury, and took no action to correct the same was immune from
liability.”), aff'd, 74 A.D.2d 996, 429 N.Y.S.2d 394 (N.Y. App.
Div. 4th Dep't 1980).
Plaintiff's allegations against ADA Cronin concern wholly
prosecutorial functions for which she enjoys absolute
immunity. Specifically, Plaintiff alleges that ADA Cronin
failed to identify and disclose exculpatory evidence, Compl.
¶¶ 137, 163, 166, 175(d), 187, withheld exculpatory evidence
from the grand jury, id. ¶ 168, filed a certificate of compliance,
id. ¶¶ 172–73, failed to preserve evidence, id. ¶ 176, and failed
to review evidence, id. ¶ 180.
Contrary to plaintiff's assertions, none of these allegations
plausibly suggest that ADA Cronin had any involvement in
the pre-arrest investigation or the decision to arrest plaintiff.
Id. ¶¶ 125 (“Beginning in December 2021, [DA] Korchak
and [Chief ADA] Loughran ceded ultimate decision-making
authority over the investigation to ... Congdon.”); 131 (“ADA
Congdon ... decided with BPD to file criminal charges against
[p]laintiff.”) (emphases added).
In sum, ADA Cronin's alleged conduct is protected by
absolute immunity, warranting dismissal of all claims against
her.
iii. ADA Congdon
Finally, ADA Congdon argues that she is entitled to absolute
immunity from plaintiff's claims. Congdon Mem. at 7–
18. Plaintiff disagrees, arguing that the complaint plausibly
alleges ADA Congdon's extensive role in investigative acts
and decision-making. Pl.’s Second Opp. at 45–46.
“[W]here the prosecutor advises the police [Burns v. Reed,
500 U.S. 478, 493–95, 111 S.Ct. 1934, 114 L.Ed.2d 547
(1991)] or performs investigative work in order to decide
whether a suspect should be arrested [Buckley, 509 U.S.
at 273–75, 113 S.Ct. 2606], the prosecutor is not entitled
to absolute immunity.” Kirchner, 107 A.D.3d at 1623, 969
N.Y.S.2d 277.
*13 Plaintiff alleges that, as early as December 8, 2021,
ADA Congdon met with members of BPD and the BCDA
to discuss the complainants’ allegations and the ongoing
investigation. Compl. ¶ 104. DA Korchak and Chief ADA
Loughran assigned ADA Congdon to the investigation that
same day, id. ¶ 106, and “ceded ultimate decision-making
authority over the investigation” to her. Id. ¶ 125. On
December 14, 2021, ADA Congdon and others met separately
with the complainants and tried, unsuccessfully, to obtain
the complainants’ consent to extraction of their electronic
data. Id. ¶ 109. On January 14, 2022, the complainants’
attorney informed ADA Congdon “that he had a folder
containing printouts of electronic data from the complainants’
phones.” Id. ¶ 115. ADA Congdon allegedly instructed
BCDA Investigator Wagner to retrieve the folder, but he never
did, and ADA Congdon continued to seek the complainants’
consent to an extraction of their data throughout January
2022. Id. ¶¶ 116–18. At some point during the investigation,
ADA Congdon also allegedly assisted Investigator Miller
with trying to draft a search warrant for plaintiff's DNA. Id.
¶ 120.
Taken together, the complaint plausibly alleges that ADA
Congdon worked alongside police to gather evidence during
the pre-arrest investigation. Accordingly, ADA Congdon is
not immune for her participation in the investigation in the
months preceding plaintiff's arrest.
Relatedly, plaintiff alleges that, at trial, complainant Herceg
testified that ADA Congdon allegedly instructed her “to
destroy electronic data relating to the night in question,”
Compl. ¶ 72, and “to delete her social media accounts,” id. ¶
110. But, notably, the complaint does not indicate when this
instruction allegedly occurred.
ADA Congdon argues that plaintiff has not plausibly alleged
that she instructed Herceg to delete electronic data during
the investigation. Congdon Mem. at 14. Indeed, ADA
Congdon posits that plaintiff “strategically sandwich[ed]”
these allegations “between ... paragraphs that do include
dates ... to induce the reader to conclude that it occurred
between December 14, 2022 [sic][,] and December 22, 2021.”
Id. 5
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Taking every reasonable inference in plaintiff's favor, the
complaint plausibly alleges that ADA Congdon instructed
Herceg to delete exculpatory data prior to plaintiff's
indictment. Plaintiff's allegation that Herceg obtained a new
phone prior to plaintiff's indictment provides additional
support for the inference that ADA Congdon instructed her
to delete exculpatory data before proceedings began. Compl.
¶ 185.
In any event, it is ADA Congdon's burden to demonstrate
entitlement to absolute immunity, Burns v. Reed, 500 U.S.
478, 478, 111 S.Ct. 1934, 114 L.Ed.2d 547 (1991), and:
Quite plainly, when it may not be
gleaned from the complaint whether
the conduct objected to was performed
by the prosecutor in an advocacy or an
investigatory role, the availability of
absolute immunity from claims based
on such conduct cannot be decided as
a matter of law on a motion to dismiss.
Hill, 45 F.3d at 663. Accordingly, at this early stage, the Court
cannot conclude that ADA Congdon is entitled to absolute
immunity as a matter of law for allegedly instructing Herceg
to delete exculpatory data.
ADA Congdon also argues that absolute prosecutorial
immunity protects her decision to arrest plaintiff. Congdon
Mem. at 10–14.
Plaintiff alleges that, “[o]n or about February 22, 2022,” ADA
Congdon “met ... and decided with BPD to file criminal
charges against [p]laintiff.” Compl. ¶ 131.
As the Supreme Court made clear in Buckley:
a prosecutor may not shield his
investigative work with the aegis of
absolute immunity merely because,
after a suspect is eventually arrested,
indicted, and tried, that work
may be retrospectively described as
“preparation” for a possible trial; every
prosecutor might then shield himself
from liability for any constitutional
wrong against innocent citizens by
ensuring that they go to trial.
*14 509 U.S. at 276, 113 S.Ct. 2606; see also Claude H,
214 A.D.2d at 965, 626 N.Y.S.2d 933 (holding prosecutor
acted “in an investigative, law-enforcement role when he
directed the police to arrest plaintiff”); Hill, 45 F.3d at
661 (holding that assistant district attorney entitled to only
qualified immunity for advising police to arrest). Thus, at
this stage, ADA Congdon has not demonstrated that she is
absolutely immune for advising BPD to arrest plaintiff.
ADA Congdon is entitled to absolute immunity for the
remainder of plaintiff's allegations, because they pertain
to actions taken in her role as advocate. See Compl. ¶¶
137, 163, 166, 175(d), 187 (failing to identify and disclose
exculpatory evidence); 167 (presenting case to grand jury);
168 (withholding exculpatory evidence from grand jury);
172–73 (filing certificate of compliance); 176 (failing to
preserve evidence); 180 (failing to review evidence).
The remaining prosecutor defendants (DA Korchak, Chief
ADA Loughran, and ADA Congdon) also argue that they
are entitled to qualified immunity for any alleged conduct
not protected by absolute immunity. Korchak & Loughran
Mem. at 16, Congdon Mem. at 18–21. But “the better
approach to resolving cases in which the defense of qualified
immunity is raised is to determine first whether the plaintiff
has alleged a deprivation of a constitutional right at all.” Cnty.
of Sacramento v. Lewis, 523 U.S. 833, 842 n.5, 118 S.Ct.
1708, 140 L.Ed.2d 1043 (1998).
B. Section 1983 Claims
Plaintiff asserts § 1983 claims for false arrest, malicious
prosecution, denial of the right to a fair trial, failure to
intervene, civil conspiracy, and supervisory liability against
the individual BPD defendants, the prosecutor defendants,
and BCDA Investigator Wagner. Compl. ¶¶ 220–50, 296–
301. He also brings those claims against the City and the
County under a theory of municipal liability pursuant to
Monell v. Dept. of Soc. Services of City of N.Y., 436 U.S. 658,
98 S.Ct. 2018, 56 L.Ed.2d 611 (1978). Compl. ¶¶ 251–95.
All have moved to dismiss the § 1983 claims asserted against
them.
1. Personal Involvement & Supervisory Liability 6
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Because “personal involvement of defendants in alleged
constitutional deprivations is a prerequisite to an award of
damages under § 1983,” Moffitt v. Town of Brookfield, 950
F.2d 880, 885 (2d Cir. 1991), the Court addresses it first.
Investigator Miller, Chief Zikuski, Captain Minor, DA
Korchak, Chief ADA Loughran, and BCDA Investigator
Wagner argue that plaintiff has not plausibly alleged their
personal involvement in any alleged constitutional violations.
Korchak & Loughran Mem. at 25; BPD Mem. at 18–24;
Wagner Mem. at 11–14. The City also argues that plaintiff
has not sufficiently alleged the personal involvement of the
unidentified BPD Doe defendants. BPD Mem. at 24 n.3.
“It is well settled that, in order to establish a defendant's
individual liability in a suit brought under § 1983, a plaintiff
must show, inter alia, the defendant's personal involvement in
the alleged constitutional deprivation.” Grullon v. City of New
Haven, 720 F.3d 133, 138 (2d Cir. 2013). The same applies
to supervisory officials. Tangreti v. Bachmann, 983 F.3d 609,
618 (2d Cir. 2020) (“[T]here is no special rule for supervisory
liability. Instead, a plaintiff must plead and prove ‘that each
Government-official defendant, through the official's own
individual actions, has violated the Constitution.’ ” (quoting
Iqbal, 556 U.S. at 676, 129 S.Ct. 1937)).
i. Investigator Miller
*15 Investigator Miller argues that plaintiff's § 1983 claims
against her must be dismissed, because plaintiff's allegations
against her are innocuous and demonstrate only that she
“participated in routine investigatory tasks.” BPD Mem. at
23. In opposition, plaintiff maintains that “the [c]omplaint
clearly specifies Investigator [ ] Miller's personal involvement
in investigative misconduct.” Pl.’s Second Opp. at 21.
At this stage, plaintiff has sufficiently pleaded Investigator
Miller's personal involvement in the allegedly violative
conduct. Specifically, plaintiff alleges that Investigator Miller
interviewed the complainants, Compl. ¶¶ 78, 109; collected
evidence, id. ¶¶ 79, 88; executed a search warrant at
plaintiff's office, id. ¶ 89; discussed the investigation at
meetings with members of the BCDA, id. ¶¶ 104–05;
assisted ADA Congdon in attempting to obtain a DNA
sample from plaintiff, id. ¶ 120; neglected to retrieve,
obtain, or otherwise preserve other evidence, id. ¶ 85; and
failed to document exculpatory statements, id. ¶¶ 82, 74(w).
Accordingly, Investigator Miller's motion to dismiss is denied
on this ground.
ii. Wagner
BCDA Investigator Wagner argues that plaintiff's § 1983
claims against him must be dismissed because plaintiff's
singular allegation against him cannot plausibly establish his
personal involvement in any alleged constitutional violation.
Wagner Mem. at 11. Plaintiff maintains that his allegation
concerning BCDA Investigator Wagner's “continuing failure
to collect the Saitta folder” is sufficient to avoid dismissal on
this ground. Pl.’s First Opp. at 10–12.
As defendant points out, plaintiff alleges only that ADA
Congdon directed him to retrieve the Saitta folder, but that
he failed to do so. Compl. ¶¶ 116–17. Notably, the pleading
does not allege that BCDA Investigator Wagner had any other
involvement in plaintiff's investigation or prosecution. See
generally id.
Absent additional non-conclusory allegations that Wagner
was aware of the contents of the Saitta folder and
intentionally suppressed it, plaintiff has not plausibly
alleged BCDA Investigator Wagner's personal involvement
in any constitutional violations. Accordingly, plaintiff's §
1983 claims against BCDA Investigator Wagner must be
dismissed.
iii. Supervisory Defendants
As an initial matter, Plaintiff asserts “Supervisory Liability”
as an independent cause of action against DA Korchak, Chief
ADA Loughran, Chief Zikuski, and Captain Minor. Compl.
¶¶ 243–50. Specifically, plaintiff claims that these defendants
“provided grossly inadequate training, supervision, and
discipline of the defendant assistant district attorneys
and police officers,” resulting in the deprivation of his
constitutional rights. Id. ¶ 246.
Defendants argue that this claim must be dismissed because
there is no longer a special rule for supervisory liability in the
Second Circuit, and plaintiff has not otherwise alleged that
they were personally involved in any alleged constitutional
violations. BPD Mem. at 37; Korchak & Loughran Mem. at
25–26. Plaintiff maintains that his supervisory liability claim
is proper, and, in any event, he has plausibly alleged that
defendants violated his constitutional rights through their own
individual actions. Pl.’s Second Opp. at 65–66.
Before the Second Circuit's decision in Tangreti v. Bachmann,
983 F.3d 609, 618 (2d Cir. 2020), a plaintiff could impose
supervisory liability by alleging one or more of the following:
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*16 (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 v. Keane, 341 F.3d 137, 145 (2d Cir. 2003) (citing
Colon v. Coughlin, 58 F.3d 865, 873 (2d Cir. 1995)). But this is
no longer good law. In Tangreti, the Second Circuit made clear
that “[t]here is no special rule for supervisory liability.” 983
F.3d at 618. “Instead, a plaintiff must plead and prove ‘that
each Government-official defendant, through the official's
own individual actions, has violated the Constitution.’ ” Id.
(quoting Iqbal, 556 U.S. at 676, 129 S.Ct. 1937).
Plaintiff improperly relies on the pre-Tangreti standard in
support of his supervisory liability claim. Pl.’s Second Opp.
at 65–66. Because such a claim is no longer cognizable,
plaintiff's fourth cause of action is dismissed.
Still, plaintiff contends that he has plausibly alleged
each supervisory defendant's personal involvement in the
underlying constitutional violations. Pl.’s Mem. at 20, 66.
Defendants disagree. BPD Mem. at 18–22; Korchak &
Loughran Mem. at 25–26.
“[A] defendant in a § 1983 action may not be held liable for
damages for constitutional violations merely because he held
a high position of authority.” Black v. Coughlin, 76 F.3d 72, 74
(2d Cir. 1996). Instead, “[t]he focus is on what the supervisor
did or caused to be done, ‘the resulting injury attributable
to his conduct, and the mens rea required of him to be held
liable, which can be no less than the mens rea required of
anyone else.’ ” Tangreti, 983 F.3d at 618 (quoting Porro v.
Barnes, 624 F.3d 1322, 1327–28 (10th Cir. 2010) (Gorsuch,
J.)) (emphasis in original).
a. Chief Zikuski and Captain Minor
Chief Zikuski and Captain Minor argue that plaintiff's §
1983 claims must be dismissed because “the [c]omplaint
barely mentions them and contains no allegations that they
individually engaged in unconstitutional conduct.” BPD
Mem. at 22. According to plaintiff, “the [c]omplaint explicitly
identifies Defendants Zikuski and Minor as personally
involved.” Pl.’s Second Opp. at 20.
The complaint contains just two nonconclusory allegations
concerning Captain Minor's individual actions: (1) on
December 6, 2021, Captain Minor executed a search warrant
on Yaron's office with Investigator Miller, Compl. ¶ 90;
and (2) on December 8, 2021, Captain Minor met with
DA Korchak, Chief ADA Loughran, ADA Congdon, and
Investigator Miller, to discuss the complainants’ allegations
and the ongoing investigations, id. ¶ 104. As for Chief
Zikuski, plaintiff alleges only that, sometime prior to
December 10, 2021, he told someone that he “recommended
against filing criminal charges” in plaintiff's case. Id. ¶ 98.
The remainder of plaintiff's factual allegations against Chief
Zikuski and Captain Minor are speculative, conclusory, or
based solely on their supervisory status, rather than their
individual actions. See Compl. ¶¶ 77, 121–22, 142, 180.
In sum, even taking his nonconclusory factual allegations as
true, plaintiff has not plausibly alleged that either Captain
Minor or Chief Zikuski were personally involved in any
alleged constitutional violations, warranting dismissal of
plaintiff's § 1983 claims against them.
b. DA Korchak and Chief ADA Loughran 7
*17 Of the remaining prosecutor defendants, only DA
Korchak and Chief ADA Loughran argue that plaintiff has
failed to plausibly allege their personal involvement in any
constitutional violations. Korchak & Loughran Mem. at 25;
Dkt. No. 99 (“Korchak & Loughran Reply”) at 21. Plaintiff
maintains that he has done so with the requisite specificity.
Pl.’s Second Opp. at 66–67.
As an initial matter, the Court considers only allegations
of investigative conduct, as DA Korchak and Chief ADA
Loughran are absolutely immune for any conduct taken as
advocates. See, supra Point IV.A.3.i. With that limitation
in mind, plaintiff's primary allegations against DA Korchak
and Chief ADA Loughran stem from their participation
in early investigative meetings, prior to “ced[ing] ultimate
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decision-making authority over the investigation to ADA
Congdon,” sometime in December 2021. Compl. ¶¶ 104–06,
109, 125. Beyond that, plaintiff also alleges that Chief ADA
Loughran and ADA Congdon agreed to continue seeking
the complainants’ permission to access their electronic data
throughout January 2022. Id. ¶ 118.
Absent more, these allegations do not support a reasonable
inference that either DA Korchak or Chief ADA Loughran
personally violated plaintiff's constitutional rights while
acting in an investigatory capacity. 8
Plaintiff's remaining allegations amount to little more than
supervision. For example, he alleges that DA Korchak and
Chief ADA Loughran met with ADA Congdon throughout
the investigation, but failed to correct her various mistakes of
law. Compl. ¶¶ 121–23.
As the Court noted supra, to impose liability under § 1983,
plaintiff must plausibly allege that DA Korchak and Chief
ADA Loughran individually violated his constitutional rights.
Because he has failed to do so, his § 1983 claims against them
must be dismissed.
iv. Doe Defendants
Plaintiff names ten Doe defendants who are “employees,
agents and officers of either the “BCDA[ ] or BPD whose
names are presently unknown but who violated Plaintiff's
civil rights.” Compl. ¶ 25. The BPD defendants argue that
plaintiff's claims against any BPD employee Doe defendants
should be dismissed, because plaintiff “fails to allege that any
specific BPD Defendant arrested or decided to arrest [him],
charged or decided to charge him, fabricated evidence that led
to his arrest or prosecution, participated in his prosecution,
or withheld any specific exculpatory evidence.” BPD Mem.
at 21, 24 n.3. In opposition, plaintiff maintains that “the
John Doe Officers are alleged to have actively participated in
investigative misconduct.” Pl.’s Second Opp. at 22.
“[W]here, as in this case, [plaintiff] is suing ‘John Doe’
defendants, the pleading must nevertheless contain plausible
allegations of wrongdoing by such defendants, even if their
actual names are presently unknown.’ ” James v. Monroe
Cnty., 2022 WL 17155831, at *7 (W.D.N.Y. Nov. 22, 2022)
(citing Antonetti v. City of N.Y., 2022 WL 1105172, at
*3 (E.D.N.Y. Apr. 13, 2022)). “The absence of allegations
against them and lack of personal involvement is fatal to
his claims against the John Does.” Azaryev v. City of N.Y.,
2021 WL 3861722, at *4 (E.D.N.Y. Aug. 27, 2021); see also
Johnson v. N.Y., 2019 WL 13563241, at *3 (E.D.N.Y. Nov.
20, 2019) (dismissing § 1983 claims where pleading did not
“provide any detail about the officers’ particular roles in his
arrest”).
*18 As the BPD defendants correctly point out, see BPD
Mem. at 19–20, plaintiff fails to attribute many of his
allegations regarding BPD officers to any of the named
BPD defendants or to any particular Doe defendant, instead
referring to “BPD” or “members of BPD,” generally. See
Compl. ¶¶ 71, 91, 94–95, 98, 102–03, 108, 128, 131–32, 178.
Plaintiff insists that this “limited use of collective allegations
is proper and permissible.” Pl.’s Second Opp. at 23.
Plaintiff has certainly alleged that other unknown BPD
officers were involved in his investigation and arrest, but he
has not plausibly alleged that any particular individual Doe
defendant violated his constitutional rights. Even taken as
true, allegations that some unnamed BPD officers “obtained
footage from security cameras” that was never shown to the
complainants, Compl. ¶ 91, failed to take steps to preserve
the complainants’ cell phone data, id. ¶ 108, and “effectuated
and processed” plaintiff's arrest, id. ¶ 128, are insufficient
to state a plausible § 1983 claim against any individual Doe
defendant.
Accordingly, plaintiffs’ § 1983 claims against the BPD Doe
defendants are dismissed.
The BCDA defendants have not explicitly moved for
dismissal of plaintiff's claims against the BCDA Doe
defendants. This is understandable, as it is unclear how many
of the Doe defendants are alleged to be BCDA employees and
which claims plaintiff has asserted against them. Compl. ¶ 25.
Of course, courts may sua sponte dismiss Doe defendants on
the pleadings where a plaintiff has failed to state a plausible
claim against them. See, e.g., Darby v. Greenman, 14 F.4th
124 (2d Cir. 2021) (affirming district court's dismissal of
Doe defendants who had not appeared in the action where
claims against them and appearing defendants were based on
identical legal theories); Baker v. Spinner, 2019 WL 3430918,
at *6 n.6 (N.D.N.Y. July 30, 2019) (dismissing unidentified
and unserved Doe defendants sua sponte where defendants
sought dismissal of entire complaint and their failure to
appear on behalf of Does was likely “an oversight”) aff'd,
826 F. App'x 105 (2d Cir. 2020); see also Hanks v. City of
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Syracuse, 2022 WL 4619877 (N.D.N.Y. Sept. 30, 2022), aff'd,
2023 WL 8889764 (2d Cir. Dec. 26, 2023).
Such is the case here. If anything, plaintiff's allegations
against the BCDA Doe defendants are more tenuous than
those asserted against the unidentified BPD officers. Plaintiff
repeatedly alleges that “the BCDA[ ],” generally, failed
to obtain or review certain evidence, failed to confront
the complainants with evidence that undermined their
allegations, and lacked fundamental knowledge as to certain
investigative procedures regularly employed by prosecutors.
Compl. ¶¶ 71, 94–95, 108, 113, 120, 146.
As with the BPD Doe defendants, plaintiff has failed to allege
that any individual BCDA Doe defendant was personally
involved in any constitutional violation. Accordingly, all Doe
defendants that are “employees, agents, [ ] [or] officers” of
the BCDA are dismissed.
2. False Arrest
The Court begins its assessment of the merits of plaintiff's §
1983 claims with plaintiff's “First Cause of Action,” which
he characterizes as a claim for “Fourth and Fourteenth
Amendment False Arrest and Malicious Prosecution.”
Compl. at 51. “Although they often accompany one
another, false arrest and malicious prosecution are distinct
causes of action.” Spearman v. Dutchess Cnty., 2008 WL
2945991, at *3 (N.D.N.Y. July 25, 2008) (citing Heck v.
Humphrey, 512 U.S. 477, 114 S.Ct. 2364, 129 L.Ed.2d 383
(1994)). Accordingly, the Court will address them separately,
beginning with false arrest.
*19 Of the remaining defendants to plaintiff's § 1983 claims,
plaintiff asserts a false arrest claim against Investigator Miller
and ADA Congdon. Compl. ¶¶ 220–27. Both moved to
dismiss. See Dkt. Nos. 29, 31.
As a threshold matter, Investigator Miller argues that
plaintiff's false arrest claim is time-barred. BPD Mem. at 26–
27. Plaintiff has not addressed this argument. See generally
Pl.’s Second Opp.
“Statutes of limitations establish the period of time within
which a claimant must bring an action.” Heimeshoff v.
Hartford Life & Acc. Ins. Co., 571 U.S. 99, 105, 134 S.Ct. 604,
187 L.Ed.2d 529 (2013). “Section 1983 does not provide a
specific statute of limitations. Thus, courts apply the statute of
limitations for personal injury actions under state law.” Hogan
v. Fischer, 738 F.3d 509, 517 (2d Cir. 2013). “[T]he applicable
statute of limitations for § 1983 actions in New York is three
years.” Murphy v. Lynn, 53 F.3d 547, 548 (2d Cir. 1995).
“[A] statute of limitations begins to run when the cause of
action accrues—that is, when the plaintiff can file suit and
obtain relief.” Heimeshoff, 571 U.S. at 105, 134 S.Ct. 604
(internal quotations omitted). “[A]lthough New York law
provides the applicable statute of limitations, federal law
governs the question of when a false arrest claim accrues.”
Covington v. City of N.Y., 171 F.3d 117, 121 (2d Cir. 1999).
Under federal law, “it is the standard rule that [accrual
occurs] when the plaintiff has a complete and present cause
of action,” Wallace v. Kato, 549 U.S. 384, 388, 127 S.Ct.
1091, 166 L.Ed.2d 973 (2007). As relevant here, “the statute
of limitations upon a § 1983 claim seeking damages for a
false arrest in violation of the Fourth Amendment, where
the arrest is followed by criminal proceedings, begins to run
at the time the claimant becomes detained pursuant to legal
process.” Id. at 397, 127 S.Ct. 1091. Put differently, the statute
of limitations begins to run when the claimant is “bound over
by a magistrate or arraigned on charges.” Id. at 389, 127 S.Ct.
1091. 9
The complaint alleges that, on February 22, 2022, “[d]espite
there being no probable cause ... [ADA] Congdon met ... and
decided with BPD to file criminal charges against [p]laintiff ...
in local court.” Compl. ¶ 131. The same day, plaintiff
appeared at city court, where he was “arrested, charged, and
arraigned.” Id. ¶ 132.
Therefore, the statute of limitations on plaintiff's false arrest
claim began to run once he was arraigned, on February 22,
2022. Plaintiff filed this action more than three years later,
on March 18, 2025. Consequently, his § 1983 claim for
false arrest is time-barred, and must be dismissed as to the
remaining moving defendants. 10
3. Malicious Prosecution
*20 Of the remaining defendants, plaintiff asserts malicious
prosecution claims against ADA Congdon and Investigator
Miller. Compl. ¶¶ 220–27. Both moved to dismiss, arguing
that plaintiff has failed to plausibly allege the elements of
his claim. BPD Mem. at 28–32; Congdon Mem. at 23–
24. Plaintiff maintains that his allegations state plausible
malicious prosecution claims against both. Pl.’s Second Opp.
at 19–20, 37–41, 54–56.
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“To state a 42 U.S.C. § 1983 claim for malicious prosecution,
a plaintiff must plead both ‘a violation of his rights under
the Fourth Amendment’ and ‘the elements of a malicious
prosecution claim under state law.’ ” Dettelis v. Sharbaugh,
919 F.3d 161, 163 (2d Cir. 2019) (quoting Manganiello v. City
of N.Y., 612 F.3d 149, 160–61 (2d Cir. 2010)). “Under New
York law, a malicious-prosecution claim requires a plaintiff
to show ‘(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 the
defendant's actions.’ ” Dettelis, 919 F.3d at 163–64 (quoting
Murphy v. Lynn, 118 F.3d 938, 947 (2d Cir. 1997)).
i. Initiation
“The first element of a malicious prosecution cause of action,
under state law or § 1983, is ... ‘that the defendant initiated
a prosecution against the plaintiff.’ ” Rohman v. N.Y. City
Trans. Auth. (NYCTA), 215 F.3d 208, 217 (2d Cir. 2000)
(quoting Posr v. Ct. Officer Shield # 207, 180 F.3d 409, 417
(2d Cir. 1999)). Both defendants argue that the complaint fails
to establish initiation, but their arguments are premised on
different theories.
Investigator Miller argues that plaintiff has not plausibly
alleged that she, or any of the BPD defendants, commenced
or continued the prosecution against plaintiff. BPD Mem. at
29–30. The Court disagrees.
“To initiate a prosecution, a defendant must do more than
report the crime or give testimony. [Sh]e must ‘play[ ]
an active role in the prosecution, such as giving advice
and encouragement or importuning the authorities to act.’ ”
Manganiello, 612 F.3d at 163 (quoting Rohman, 215 F.3d
at 217). “[P]olice officers can ‘initiate’ prosecution by filing
charges or other accusatory instruments.” Cameron v. City
of N.Y., 598 F.3d 50, 63 (2d Cir. 2010). “This element
might be satisfied by, for example, showing that an officer
generated witness statements or was regularly in touch with
the prosecutor regarding the case.” Bermudez v. City of N.Y.,
790 F.3d 368, 377 (2d Cir. 2015) (citing Manganiello 612 F.3d
at 163).
Collectively and taken as true, plaintiff's allegations satisfy
this requirement. According to plaintiff, Investigator Miller
was the BPD officer assigned to plaintiff's case. Compl. ¶
77. In this role, plaintiff alleges that Investigator Miller took
witness statements, id. ¶¶ 78, 109, gathered evidence, id. ¶¶
79, 88, 90, attended meetings with members of the BCDA,
id. ¶¶ 104, 109, and worked directly with ADA Congdon
on investigative tasks leading up to plaintiff's arrest and
prosecution, id. at 120.
Moreover, allegations that a police officer “forwarded
statements to a prosecutor without sharing that the statements
were suspect,” can also satisfy the initiation requirement of a
malicious prosecution claim. Dufort, 874 F.3d at 353 (citing
Manganiello, 612 F.3d at 163). Indeed, “New York law has
long equated the civil defendant's failure to make a full and
complete statement of the facts to the District Attorney or
the court ... with that defendant's initiation of a malicious
prosecution.” Ramos v. City of N.Y., 285 A.D.2d 284, 299–
300, 729 N.Y.S.2d 678 (N.Y. App. Div. 1st Dep't 2001) (citing
Hopkinson v. Lehigh Val. R. Co., 249 N.Y. 296, 164 N.E.
104 (N.Y. 1928)); see also Bailey v. City of N.Y., 79 F. Supp.
3d 424, 449 (E.D.N.Y. 2015) (holding that a police officer's
“fail[ing] to make a complete and full statement of facts” to
the prosecutor can constitute initiation).
*21 Plaintiff alleges that:
Demkovich told members of BPD that
she was questioning whether she was,
in fact, raped, or if the physical or
sexual contact was consensual. This
was not recorded by Defendant Miller
or anyone else from BPD.
Compl. ¶ 82.
Investigator Miller argues that this allegation does not
plausibly indicate that Demkovich told her that the sexual
contact was consensual. BPD Mem. at 23. Again, the Court
disagrees.
According to plaintiff, his encounter with the complainants
took place in the early morning hours of November 27,
2021, Compl. ¶¶ 28, 32–55, Investigator Miller interviewed
the complainants on November 28, 2021, id. ¶ 78, and
Demkovich sent a text to her mother on December 28,
2021, stating that she “told them [BPD] the next day I was
questioning if what happened to me was actually rape ...,” id.
¶ 74(w). From these facts, the Court can infer that Demkovich
told Investigator Miller, to whom she spoke the next day,
that she was questioning whether she had sufficiently denied
consent.
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In sum, because plaintiff plausibly alleged that Investigator
Miller was actively involved in the investigation, maintained
regular contact with ADA Congdon, and failed to make a full
and complete statement of the facts, he has plausibly alleged
the initiation element as to Investigator Miller.
ADA Congdon makes a different argument. She contends
that, as a prosecutor, she is absolutely immune for the
commencement and continuation of a criminal proceeding.
Congdon Mem. at 8.
As discussed supra, ADA Congdon is entitled to absolute
immunity for her prosecutorial conduct: that is, any conduct
undertaken as an advocate, in preparation for and during
the prosecution of the criminal case against plaintiff. See
supra Point IV.A.3.iii. Accordingly, the Court considers
only whether her investigative conduct violated plaintiff's
constitutional rights.
Plaintiff alleges that, while acting in an investigative capacity,
ADA Congdon (1) participated in meetings, (2) worked
closely with BPD, (3) met with the complainants, (4)
instructed Herceg to delete electronic data, and (5) directed
BPD to arrest plaintiff. Compl. ¶¶ 103–05, 120, 109–10, 131.
Ordinarily, “it would be impossible to satisfy the ‘initiation’
element of a malicious prosecution claim against the
prosecutor.” Harris v. Tioga Cnty., 663 F. Supp. 3d
212, 241 (N.D.N.Y. 2023), appeal dismissed, 2024 WL
4179651 (2d Cir. Sept. 13, 2024). “After all, ‘a prosecutor
unquestionably acts as an advocate—and therefore receives
absolute immunity—when she initiates and pursues a
criminal prosecution.’ ” Id. (quoting D'Alessandro v. City of
N.Y., 713 F. App'x 1, 5 (2d Cir. 2017) (summary order)).
But this protection ends “[w]hen a prosecutor performs the
investigative functions normally performed by a detective or
police officer[.]” Buckley, 509 U.S. at 273, 113 S.Ct. 2606.
“[T]he ‘initiation’ element of a malicious prosecution claim
may be satisfied if a defendant fabricates evidence that is
material to the probable cause determination.” Harris, 663
F. Supp. 3d at 241 (citing McDaniel v. City of N.Y., 585 F.
Supp. 3d 503, 516–17 (S.D.N.Y. 2022) (collecting cases)). As
relevant here, “government officials may be held liable for
fabricating evidence through false statements or omissions.”
Morse v. Fusto, 804 F.3d 538, 547 (2d Cir. 2015) (emphasis
added).
*22 Here, plaintiff alleges that ADA Congdon directed
Herceg to delete electronic data prior to plaintiff's arrest.
Compl. ¶¶ 66, 110, 185. Herceg's text messages from the
relevant period undoubtedly undermine the veracity of her
and Demkovich's allegations. Id. ¶ 74. Taken together,
plaintiff has plausibly alleged that suppressing Herceg's text
messages affected the probable cause analysis. Accordingly,
at this stage, plaintiff's allegations satisfy the initiation
element as to ADA Congdon.
ii. Probable Cause
Investigator Miller and ADA Congdon also argue that
plaintiff's malicious prosecution claim must be dismissed,
because he has failed to plausibly allege facts that rebut the
presumption of probable cause established by his grand jury
indictment. BPD Mem. at 27; Congdon Mem. at 23–24.
Because the third element of a malicious prosecution claim
requires a plaintiff to allege that they were prosecuted without
probable cause, “the existence of probable cause is a complete
defense to a claim of malicious prosecution.” Savino, 331 F.3d
at 72 (citing Colon v. City of N.Y., 60 N.Y.2d 78, 468 N.Y.S.2d
453, 455 N.E.2d 1248, 1250 (N.Y. 1983)). “ ‘Probable cause,
in the context of malicious prosecution, has ... been described
as such facts and circumstances as would lead a reasonably
prudent person to believe the plaintiff guilty.’ ” Kee v. City of
N.Y., 12 F.4th 150, 166 (2d Cir. 2021) (quoting Boyd v. City
of N.Y., 336 F.3d 72, 76 (2d Cir. 2003)).
“[U]nder New York law, indictment by a grand jury creates
a presumption of probable cause.” Savino, 331 F.3d at 72.
“[I]t is the plaintiff who bears the burden of proof in rebutting
the presumption of probable cause that arises from the
indictment.” Id. at 73.
Because plaintiff concedes that “[t]he Grand Jury returned an
indictment as to [him],” Compl. ¶ 170, the remaining inquiry
is whether plaintiff has alleged sufficient facts to overcome
the presumption of probable cause.
The presumption of probable cause “may only be rebutted
by evidence that the indictment was procured by ‘fraud,
perjury, the suppression of evidence or other police conduct
undertaken in bad faith.’ ” Savino, 331 F.3d at 72 (quoting
Colon, 468 N.Y.S.2d 453, 455 N.E.2d at 1250–51) (emphasis
in original). “The rule in New York differs in this respect from
that in some jurisdictions which permit the presumption to
be overcome by any evidence tending to show the absence
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of probable cause.” Colon, 468 N.Y.S.2d 453, 455 N.E.2d at
1251.
Plaintiff claims that he has rebutted the presumption of
probable cause because the complaint “identif[ies] specific
individuals, describe[s] the nature of the suppressed or
omitted evidence, and explain[s] how the suppression
affected the integrity of the grand jury process.” Pl.’s Second
Opp. at 39.
a. Investigator Miller
Broadly, plaintiff argues he has overcome the presumption
of probable cause with respect to Investigator Miller by
plausibly alleging that she failed to (1) show the complainants
surveillance footage that contradicted their statements,
Compl. ¶¶ 89, 91–94; (2) preserve the complainants’
electronic data, id. ¶ 85; and (3) document Demkovich's
statement that she was questioning whether the alleged sexual
assault had actually been consensual, id. ¶ 82.
Plaintiff alleges that Investigator Miller obtained security
camera footage from the Colonial depicting the complainants
“cognizant, in control of their actions, initiating and engaging
in consensual sexual contact ... with each other and with
[p]laintiff, Yaron ... and ... Rindgen,” in the hours preceding
the alleged sexual assault. Compl. ¶¶ 88–89. According to
plaintiff, Investigator Miller also possessed footage from
street cameras showing the complainants “walking on their
own and entering [a] car without assistance,” following the
alleged assault. Id. ¶¶ 57, 91. Investigator Miller allegedly
failed to confront Herceg with the footage at any point during
the investigation. Id. ¶ 94.
*23 Plaintiff reasons that Investigator Miller's failure
to confront the complainants with surveillance footage
“showing [them] acting freely and consensually” amounts
to bad faith misconduct sufficient to rebut the presumption
of probable cause. Pl.’s Second Opp. at 38. There are two
problems with this argument.
First, the surveillance footage, as described, does not
exculpate plaintiff or otherwise impugn the veracity of the
complainants’ statements. Indeed, the footage corroborates
the complainants’ allegations that they were with plaintiff,
Yaron, and Rindgen, at Yaron's office on the night in question.
Further, footage that depicted the complainants “smiling
and appearing in good spirits throughout the evening,” and
“walking through the basement area of their own free will,”
Compl. ¶ 81, did not undermine their allegations as to
offenses occurring later in the night and outside the view of
surveillance cameras. Likewise, footage of the complainants
walking to a parking garage did not invalidate their recitation
of events, absent an allegation that the complainants claimed
to be unconscious or unable to walk after the alleged assault.
Second, plaintiff does not allege that Investigator Miller
intentionally concealed or otherwise suppressed the footage
from the prosecution in an effort to paint an incomplete
picture of the facts and secure an indictment. He alleges only
that Investigator Miller did not confront the complainants
with the allegedly contradictory footage. Compl. ¶ 94.
Plaintiff's next allegation, that Investigator Miller failed to
take “any steps during the early days of the investigation
to obtain or preserve [the complainants’] electronic data,”
Compl. ¶ 85, similarly fails to rebut the presumption of
probable cause.
According to plaintiff, the complainants provided
Investigator Miller “with photographs and text messages from
the night in question.” Compl. ¶ 79. “The messages provided
represented selected, non-continuous accounts of the night
in question and did not provide a complete record of the
relevant period.” Id. ¶ 80. “The excluded text messages ...
included messages stating that the sexual contact between [the
complainants] and [p]laintiff ... had been consensual ...” Id.
¶ 81.
By plaintiff's own account, any exculpatory text messages
were excluded from those provided to Investigator Miller, and
plaintiff does not allege any facts suggesting that Investigator
Miller knew that the complainants failed to turn over
exculpatory text messages. Accordingly, her failure to obtain
or otherwise preserve those messages does not amount to a
suppression of evidence which could rebut the presumption
of probable cause.
Lastly, plaintiff argues that Investigator Miller intentionally
failed to document Demkovich's statement that she was
questioning whether the alleged assault would be “classified”
as consensual, thereby rebutting the presumption of probable
cause established by plaintiff's indictment. Compl. ¶¶ 74(o),
82.
Importantly, “[w]hen information is received from a putative
victim or an eyewitness, probable cause exists, [Martinez,
202 F.3d at 634], unless the circumstances raise doubt
as to the person's veracity.” Curley v. Vill. of Suffern,
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268 F.3d 65, 70 (2d Cir. 2001) (citing Singer v. Fulton
Cnty. Sheriff, 63 F.3d 110, 119 (2d Cir. 1995)). “[W]hile
vastly inconsistent statements by a victim might undermine
the victim's reliability, minor inconsistent statements do
not automatically vitiate probable cause based solely on
a victim's statements if the totality of the circumstances
support probable cause.” Davenport v. City of N.Y., 2017 WL
4356883, at *11 (E.D.N.Y. Sept. 28, 2017) (citing Crawford v.
City of N.Y., 477 F. App'x. 777, 779 (2d Cir. 2012) (summary
order)).
*24 Even assuming Demkovich told Investigator Miller
that she was questioning whether the alleged assault could
be classified as rape, this statement, absent more, is not so
“vastly inconsistent” that the remainder of her allegations
must be discredited. Plaintiff does not contend, for example,
that Demkovich told Investigator Miller that she and plaintiff
did not engage in sexual activity, or that she was a willing
participant in sexual activity. Compl. ¶ 74(w). Rather, it
appears that Demkovich told police that she was questioning
whether she had given sufficient indication that she did not
want to engage in sexual activity, such that the encounter
could be legally classified as “rape.” Id. ¶ 74(o).
The Second Circuit addressed a similar situation in Koester v.
Lanfranchi, 288 F. App'x 764, 766 (2d Cir. 2008) (summary
order). The plaintiff in that case, who had been falsely
accused of sexual abuse, similarly argued that “various
circumstances cast doubt as to whether the victim provided
a credible account of a forced, rather than consensual, sexual
encounter.” Id. The Second Circuit rejected that argument,
holding that plaintiff was “wrong to suggest that defendants
had to eliminate these doubts before reasonably relying on the
victim's statement to arrest him.” Id. The same logic applies
here.
Investigator Miller had no duty to resolve all doubts as
to Demkovich's statement before reasonably relying on it,
particularly as she provided text messages and photos that
corroborated other aspects of her account. Compl. ¶ 79. And,
in any case, “for probable cause to dissipate, the groundless
nature of the charges must be made apparent by the discovery
of some intervening fact.” Lowth v. Town of Cheektowaga, 82
F.3d 563, 571 (2d Cir. 1996), as amended (May 21, 1996).
Demkovich's alleged expression of uncertainty did not render
the charges against plaintiff groundless, particularly in light
of the other evidence Investigator Miller possessed. Compl.
¶¶ 65, 74(b)(b), 76, 79, 139.
In sum, plaintiff has failed to plausibly allege facts sufficient
to rebut the presumption of probable cause as to Investigator
Miller, and his § 1983 malicious prosecution claim against her
must be dismissed.
b. ADA Congdon
Plaintiff argues that he has rebutted the presumption of
probable cause as to ADA Congdon through his allegations
that she (1) suppressed exculpatory DNA evidence from
the grand jury, Compl. ¶ 168; (2) failed to obtain and
review exculpatory text messages, id. ¶¶ 167, 169(b); and (3)
instructed Herceg to delete exculpatory data, id. ¶ 72.
Plaintiff alleges that the grand jury did not “learn of
the exculpatory DNA results that were learned after the
Grand Jury returned a voted indictment,” because of ADA
Congdon's misconduct. Compl. ¶ 168.
This allegation concedes that ADA Congdon did not possess
the exculpatory DNA results until after plaintiff's indictment.
Accordingly, they could not have been “suppressed.” 11
Next, plaintiff contends that the presumption of probable
cause is rebutted by ADA Congdon's failure to timely obtain
and review the Saitta folder.
However, a plaintiff cannot “rebut the presumption of
probable cause with mere ‘conjecture’ and ‘surmise’ that his
indictment was procured as a result of conduct undertaken by
the defendants in bad faith.” Savino, 331 F.3d at 73. In that
regard, “[a]ny alleged failure to conduct further investigation
or apply all procedures that could have been followed does
not amount to fraud, bad faith or the suppression of evidence
and is insufficient to overcome the presumption.” Gil v. Cnty.
of Suffolk, 590 F. Supp. 2d 360, 370 (E.D.N.Y. 2008) (citing
Colon, 468 N.Y.S.2d 453, 455 N.E.2d at 1251).
*25 The complaint alleges that the complainants’ attorney
made ADA Congdon aware of the Saitta folder on January 14,
2022. Compl. ¶ 115. ADA Congdon allegedly directed BCDA
Investigator Wagner to retrieve the Saitta folder, but he never
did. Id. ¶¶ 115–17, 167, 169(b). At the end of March 2022,
“[o]verwhelmed by the amount of discovery ... and having
still not obtained the Saitta [folder], [ADA] Congdon ...
decided to present the case to the grand jury.” Id. ¶ 167.
Plaintiff admits that ADA Congdon directed BCDA
Investigator Wagner to retrieve the Saitta folder once she
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became aware of its existence. Her failure to follow up with
BCDA Investigator Wagner may constitute negligence, but,
without more, cannot support a plausible inference of bad
faith sufficient to rebut the presumption of probable cause. 12
Lastly, plaintiff argues that the presumption of probable cause
was rebutted by his allegation that ADA Congdon instructed
Herceg to destroy electronic data.
As discussed supra, plaintiff plausibly alleged that, during the
pre-arrest investigation, ADA Congdon directed Herceg to
delete electronic data, and Herceg's electronic data included
text messages that substantially undermined the veracity of
her and Demkovich's allegations against plaintiff. See supra
Point IV.A.3.iii. At this stage, these allegations suffice to rebut
the presumption of probable cause established by plaintiff's
indictment.
iii. Malice
ADA Congdon also argues that plaintiff failed to allege actual
malice, the final element of his malicious prosecution claim.
Congdon Mem. at 24. Specifically, ADA Congdon contends
that any allegations of malice against her are conclusory. Id. In
opposition, plaintiff maintains that the complaint “adequately
alleges malice, both due to the lack of probable cause as well
as the deliberate misconduct.” Pl.’s Second Opp. at 55.
Under New York law:
The “actual malice” element of a
malicious prosecution action does not
require a plaintiff to prove that the
defendant was motivated by spite or
hatred ... [r]ather, it means that the
defendant must have commenced the
prior criminal proceeding due to a
wrong or improper motive, something
other than a desire to see the ends of
justice served.
Id. at 976. “A lack of probable cause generally creates an
inference of malice.” Boyd, 336 F.3d at 78 (Ricciuti, 124 F.3d
at 131).
Plaintiff has plausibly alleged facts that rebut the presumption
of probable cause as to ADA Congdon, see supra
Point IV.B.3.ii.b, thereby creating an inference of malice.
Accordingly, at this stage, plaintiff has stated a plausible §
1983 malicious prosecution claim against ADA Congdon.
4. Due Process and Denial of the Right to a Fair Trial
Plaintiff's “Second Cause of Action,” is identified as:
“Fourteenth Amendment Deprivation of Liberty Without
Due Process of Law and Denial of a Fair Trial by
Fabricating Evidence, Withholding Material Exculpatory and
Impeachment Evidence, and Deliberately Failing to Conduct
a Constitutionally Adequate Investigation.” Compl. at p. 53.
Of the moving defendants, this claim remains only as to
Investigator Miller and ADA Congdon. Both have moved to
dismiss. BPD Mem. at 32–35; Congdon Mem. at 25.
“A fair trial claim is a civil claim for violations of a
criminal defendant's Fourteenth Amendment due process
rights.” Fappiano v. City of N.Y., 640 F. App'x 115, 118 (2d
Cir. 2016) (summary order) (citing Ramchair v. Conway, 601
F.3d 66, 73 (2d Cir. 2010)).
*26 Plaintiff's fair trial claim is based, in part, on defendants’
alleged failure to “conduct a constitutionally adequate
investigation.” However, “[a]s Defendants correctly argue,
‘there is no constitutional right to an adequate investigation.’ ”
Buari v. City of N.Y., 530 F. Supp. 3d 356, 389 (S.D.N.Y. 2021)
(quoting Newton v. City of N.Y., 566 F. Supp. 2d 256, 278
(S.D.N.Y. 2008)); see also Hicks v. Marchman, 719 F. App'x
61, 64 (2d Cir. 2018) (summary order) (affirming dismissal
of fair trial claim where plaintiff “cite[d] no authority for the
proposition that there is a stand-alone fair trial claim based
on officers’ failure to conduct an adequate investigation”).
Accordingly, plaintiff's fair trial claim based on defendants’
alleged “failure to investigate” must be dismissed.
The remainder of this claim can reasonably be understood as
a claim for denial of the right to a fair trial premised on two
theories: (1) fabrication of evidence; 13 and (2) withholding
of exculpatory and impeachment evidence in violation of
Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d
215 (1963).
Defendants argue that plaintiff has failed to state a plausible
fair trial claim under either theory. BPD Mem. at 32–35;
Congdon Mem. at 25. Plaintiff disagrees. Pl.’s Second Opp.
at 56–57.
i. Fabrication of Evidence
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“When a police officer creates false information likely to
influence a jury's decision and forwards that information to
prosecutors, he violates the accused's constitutional right to a
fair trial, and the harm occasioned by such an unconscionable
action is redressable in an action for damages under 42 U.S.C.
§ 1983.” Ricciuti, 124 F.3d at 130. To state a fair trial claim
premised on the fabrication of evidence, a plaintiff must
allege that “ ‘an (1) investigating official (2) fabricate[d]
information (3) that is likely to influence a jury's verdict,
(4) forward[ed] that information to prosecutors, and (5) the
plaintiff suffer[ed] a deprivation of life, liberty, or property
as a result.’ ” Garnett v. Undercover Officer C0039, 838 F.3d
265, 279 (2d Cir. 2016) (quoting Ricciuti, 124 F.3d at 130).
a. Investigator Miller
Investigator Miller argues that plaintiff's allegations in
support of his fabrication claim are boilerplate and do not state
a plausible claim against her. BPD Mem. at 33–34.
Crucially, the Second Circuit has consistently held that “the
second element of a fair trial claim based on fabricated
evidence requires a plaintiff to prove that a defendant's
use of inaccurate information was ‘knowing, as opposed to
mistaken.’ ” Davis-Guider v. City of Troy, 2024 WL 5199294,
at *3 (2d Cir. Dec. 23, 2024) (summary order) (quoting
Barnes v. City of N.Y., 68 F.4th 123, 129 (2d Cir. 2023)); see
also Ashley v. City of N.Y., 992 F.3d 128, 143 (2d Cir. 2021)
(“The fabrication element requires only that the defendant
knowingly make a false statement or omission.”).
“[T]he requirements that the information be both false and
likely to influence a jury's decision constrain the types of
information that can serve as the basis for a denial of the right
to a fair trial claim.” Garnett, 838 F.3d at 280. “Information
may be ‘false’ if material omissions render an otherwise true
statement false.” Morse, 804 F.3d at 548.
*27 Plaintiff does not allege that Investigator Miller
personally testified falsely before any jury or affirmatively
fabricated any evidence. Instead, plaintiff alleges that
“Demkovich told members of BPD that she was questioning
whether she was, in fact, raped, or if the physical or sexual
contact was consensual” and, because that statement “was
not recorded by Defendant Miller,” “the Grand Jury did not
learn that ... Demkovich had reported that she was questioning
whether a rape had occurred.” Compl. ¶¶ 82, 168.
Investigator Miller's omission of that portion of Demkovich's
statement did not render the rest of her statement “false.” Even
if it did, plaintiff has not plausibly alleged that Miller had
reason to know that Demkovich's allegations were false. See
Davis-Guider, 2024 WL 5199294, at *3 (rejecting argument
that “relie[d] on the speculation that because Defendants
provided prosecutors with inaccurate information, they must
have fabricated evidence,” and concluding that “[t]he mere
fact that the parties present conflicting evidence does not
mean that one side's evidence was fabricated.”).
Indeed, at the time Investigator Miller interviewed the
complainants, Herceg's allegations, the complainants’ text
messages and photos, and the surveillance footage all
corroborated aspects of Demkovich's allegations. See supra
Point IV.B.3.b; see also Brown v. Vill. of Endicott, 2025 WL
863105, at *30 (N.D.N.Y. Mar. 19, 2025) (“Insofar as the
parties agree that [the complainant] provided inconsistent
statements... the failure to present this inconsistency to the
grand jury does not make the testimony ‘false.’ This is
particularly true when [the complainant] made numerous
other, consistent, statements concerning the alleged abuse.”).
In sum, plaintiff has failed to state factual allegations that
could support a reasonable inference that Investigator Miller
knowingly fabricated evidence, either affirmatively or by
omission. Therefore, plaintiff's fabrication claim against her
must be dismissed.
b. ADA Congdon
ADA Congdon argues that absolute prosecutorial immunity
bars plaintiff's fabrication-of-evidence claim against her, as
her allegedly violative conduct falls within the scope of her
role as an advocate. Congdon Mem. at 25. Plaintiff disagrees,
insisting that his “allegations detail a pattern of exculpatory
evidence being deliberately destroyed or withheld by both
police and prosecutors, well before any formal prosecution
commenced.” Pl.’s Second Opp. at 58.
In Zahrey v. Coffey, the Second Circuit explicitly recognized a
constitutional “right not to be deprived of liberty as a result of
the fabrication of evidence by a government officer acting in
an investigating capacity.” 221 F.3d 342, 349 (2d Cir. 2000).
This includes prosecutors, as “a subsequent immunized act of
a single official does not break the chain of causation traceable
to his initial misconduct occurring in another capacity.” Id. at
353 (citing White v. Frank, 855 F.2d 956, 961 (2d Cir. 1988)).
Thus, a prosecutor, acting in her investigative capacity,
deprives a criminal defendant of the constitutional right to a
fair trial where she deliberately omits material information
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from evidence that would likely influence a jury's decision.
See Morse, 804 F.3d at 547–49 (finding prosecutor and
investigator, acting in investigative capacities, deprived
dentist of fair trial right through deliberate material omissions
in billing summaries material to grand jury's decision to
indict).
In November 2022, the BCDA allegedly “received a hard
drive with the extractions of the cell phones of [the
complainants].” Compl. ¶ 179. Three months later, the BCDA
turned this information over to plaintiff's attorney in a report,
but “none of ... Herceg's communications from November
27, 2021[,] through March 2022 were present” in the BCDA
report, because Herceg obtained a new phone and iCloud
account in March 2022. Id. ¶ 185. Herceg later testified
that ADA Congdon instructed her to “destroy electronic
data relating to the night in question ... and that she did in
fact destroy that evidence.” Id. ¶ 72. In July 2023, plaintiff
obtained the Saitta folder, which contained Herceg's messages
from that period, including “numerous exculpatory and
impeaching text messages,” not included in the BCDA report.
Id. ¶ 117(e). Saitta also informed plaintiff that ADA Congdon
had been aware of the Saitta folder at least two months prior to
his indictment (and Herceg's alleged destruction of evidence),
but she never retrieved it. Id. ¶¶ 115–17.
*28 Collectively, plaintiff has plausibly alleged that ADA
Congdon (1) instructed Herceg to delete material electronic
data prior to plaintiff's arrest and indictment; (2) failed
to retrieve existing copies of that material electronic data,
despite knowing of its availability before plaintiff's arrest and
indictment; and (3) subsequently produced a hard drive of the
complainants’ electronic data that necessarily omitted the data
Herceg destroyed at her request.
Thus, plaintiff has plausibly alleged that ADA Congdon
fabricated or otherwise omitted material evidence.
Accordingly, plaintiff's fabrication claim survives as to ADA
Congdon.
ii. Brady Violation
Plaintiff also alleges that defendants deprived him “of his
right to due process by directing the destruction of material
exculpatory and impeachment evidence in order to hide it
from [plaintiff]’s defense counsel and the Court.” Compl.
¶ 232. This “theory of liability is essentially a civil claim
seeking damages for a Brady violation.” Fappiano, 640
F. App'x at 118 (citing Bermudez, 790 F.3d at 376 n.4).
“A classic Brady violation contains three elements: ‘The
evidence at issue must be favorable to the accused, either
because it is exculpatory, or because it is impeaching; that
evidence must have been suppressed by the State, either
willfully or inadvertently; and prejudice must have ensued.’ ”
Fappiano, 640 F. App'x at 118 (quoting United States v. Rivas,
377 F.3d 195, 199 (2d Cir. 2004)).
“To prevail on such a claim, a plaintiff must show the
materiality of the nondisclosed evidence.” Bellamy v. City
of N.Y., 914 F.3d 727, 751 (2d Cir. 2019). To determine
materiality, “[t]he question is not whether the defendant
would more likely than not have received a different verdict
with the evidence, but whether in its absence he received a
fair trial, understood as a trial resulting in a verdict worthy of
confidence.” Kyles v. Whitley, 514 U.S. 419, 434, 115 S.Ct.
1555, 131 L.Ed.2d 490 (1995).
Because “Brady is rooted in the constitutional right to a fair
trial,” a plaintiff “fails to allege any violation of his rights
under Brady,” where “the charges ... were dropped before any
trial began.” Schnitter v. City of Rochester, 556 F. App'x 5,
8 (2d Cir. 2014) (summary order) (affirming dismissal of §
1983 Brady claim); see also Malik. v. City of N.Y., 2020 WL
2747979 (E.D.N.Y. May 27, 2020) (dismissing § 1983 Brady
claim where charges were dismissed before trial), aff'd sub
nom. Malik v. City of N.Y., 841 F. App'x 281 (2d Cir. 2021)
(summary order).
Plaintiff concedes that the charges were dismissed against
him without a trial, Compl. ¶ 192, and that the BCDA
ultimately withdrew their appeal of this dismissal, id. ¶¶ 6–7.
Accordingly, plaintiff has failed to allege a Brady violation,
and his fair trial claim premised on this theory must be
dismissed as to the remaining moving defendants.
5. Failure to Intervene
Plaintiff's “Third Cause of Action” is identified as a “failure
to intervene” claim. Compl. ¶¶ 237–242. As a threshold
matter, failure to intervene is not a standalone cause of
action, but rather a form of individual “bystander” liability
imposed where a government official could have, but did not,
intervene in a constitutional violation committed by another
government official in his or her presence. See Ellis v. City
of Elmira, 2018 WL 6047070, at *8 n.1 (W.D.N.Y. Nov.
19, 2018) (“[F]ederal courts uniformly have recognized a
theory of ‘bystander liability’ based on a defendant's failure
to intervene in § 1983 actions.”) (citing Anderson v. Branen,
17 F.3d 552, 557 (2d Cir. 1994)). In that regard, it may be
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asserted even where a defendant did not directly participate
in an alleged constitutional violation.
*29 Accordingly, this claim remains as to the individual
BPD defendants, DA Korchak, Chief ADA Loughran, ADA
Congdon, and BCDA Investigator Wagner. Plaintiff also
asserts this claim against the City and the County. All have
moved to dismiss.
Liability for failure to intervene may attach “if ‘(1) the officer
had a realistic opportunity to intervene and prevent the harm;
(2) a reasonable person in the officer's position would know
that the victim's constitutional rights were being violated; and
(3) the officer does not take reasonable steps to intervene.’ ”
Jackson v. City of N.Y., 939 F. Supp. 2d 219, 231–32 (E.D.N.Y.
2013) (quoting Jean–Laurent v. Wilkinson, 540 F.Supp.2d
501, 512 (S.D.N.Y. 2008)).
As for the municipal defendants, the County argues that
plaintiff has failed “fail to allege or articulate how the County,
as a municipal entity, was positioned to prevent or remedy ...
[alleged] violations in real time.” County Mem. at 13. Plaintiff
concedes this point in his opposition papers and voluntarily
“withdraws the failure to intervene claim against the County
only.” Pl.’s Opp. at 65. But the City of Binghamton is also a
municipal entity. Compl. ¶ 17. To the extent plaintiff attempts
to impose individual liability for failure to intervene against
the City, that claim must be dismissed for substantially the
same reasons.
Turning to the individual defendants, they argue that (1)
plaintiff has not plausibly alleged an underlying constitutional
violation; or (2) alternatively, plaintiff has not plausibly
alleged that defendants had a realistic opportunity to intervene
in any constitutional violations. Korchak & Loughran Mem.
at 24–25; BPD Mem. at 36–37; Congdon Mem. at 25–26;
Wagner Mem. at 22–24. Additionally, ADA Congdon argues
that she “could never have had a reasonable opportunity to
intervene in her own actions.” Congdon Mem. at 26.
A failure to intervene claim “is predicated on there being an
underlying violation of [plaintiff]’s constitutional rights that
the defendants could have prevented.” McIntosh v. City of
N.Y., 722 F. App'x. 42, 46 (2d Cir. 2018) (summary order)
(citing Terebesi v. Torreso, 764 F.3d 217, 243 (2d Cir. 2014)).
Here, plaintiff has plausibly alleged constitutional violations
against ADA Congdon. His surviving § 1983 claims against
her are for malicious prosecution and the denial of the right to
a fair trial premised on the fabrication of evidence. See supra
Points IV.3–4.
“It is widely recognized that all law enforcement officials
have an affirmative duty to intervene to protect the
constitutional rights of citizens from infringement by other
law enforcement officers in their presence.” Anderson, 17
F.3d at 557 (citing O'Neill v. Krzeminski, 839 F.2d 9, 11 (2d
Cir. 1988)). 14 But, “[o]bviously, a person who is held liable
under a theory of direct participation in the constitutional
violation cannot also be held liable for a failure to intervene.”
Rizk v. City of N.Y., 462 F. Supp. 3d 203, 226 (E.D.N.Y.
2020) (citing Jackson, 939 F. Supp. 2d at 231–32). Because
plaintiff has only plausibly stated § 1983 claims against ADA
Congdon, she cannot also be liable for failure to intervene in
her own conduct.
*30 The remaining individual defendants argue that plaintiff
has not alleged that they had a realistic opportunity
to intervene in any constitutional violations. Korchak &
Loughran Mem. at 24–25; BPD Mem. at 36–37; Wagner
Mem. at 22–24.
Both of plaintiff's surviving § 1983 claims are premised on
plaintiff's allegation that, prior to his arrest and indictment,
ADA Congdon instructed Herceg to destroy electronic data
related to the night of the alleged assault. Compl. ¶¶ 72,
110. Yet, plaintiff does not allege that any other individual
defendant was present for, aware of, or had any realistic
opportunity to intervene in or prevent ADA Congdon from
instructing or directing Herceg to destroy the allegedly
exculpatory electronic data. See generally Compl.
Accordingly, he fails to state a plausible § 1983 claim under
a failure to intervene theory as to any moving defendant.
6. Monell Liability
Plaintiff's fifth and sixth causes of action are identified as
“Monell Claim” and “Monell Claim for the Unconstitutional
BPD Custom or Policy,” respectively. Compl. ¶¶ 251–95.
His first Monell claim is asserted against the County and his
second, against the City, Chief Zikuski, and Captain Minor.
All have moved to dismiss plaintiff's Monell claims. County
Mem. at 8–11; BPD Mem. at 15–17.
As the Second Circuit has explained:
In Monell v. Department of Social Services, 436 U.S.
658, 98 S. Ct. 2018, 56 L.Ed.2d 611 (1978), the Supreme
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Court established that “[l]ocal governing bodies ... can
be sued directly under [42 U.S.C.] § 1983 for monetary,
declaratory, or injunctive relief where, as here, the action
that is alleged to be unconstitutional implements or
executes a policy statement, ordinance, regulation, or
decision officially adopted and promulgated by that body's
officers.”
Amnesty Am. v. Town of W. Hartford, 361 F.3d 113, 124–25
(2d Cir. 2004) (quoting Monell, 436 U.S. at 690, 98 S.Ct.
2018).
Plaintiffs proceeding under a Monell theory must “ ‘plead and
prove three elements: (1) an official policy or custom that
(2) causes the plaintiff to be subjected to (3) a denial of a
constitutional right.’ ” Lucente v. Cnty. of Suffolk, 980 F.3d
284, 297 (2d Cir. 2020) (quoting Wray v. City of N.Y., 490 F.3d
189, 195 (2d Cir. 2007)). “In other words, municipalities may
not be held liable ‘unless action pursuant to official municipal
policy of some nature caused a constitutional tort.’ ” Friend
v. Gasparino, 61 F.4th 77, 93 (2d Cir. 2023) (quoting Monell,
436 U.S. at 691, 98 S.Ct. 2018).
The Court addresses plaintiff's Monell claims in turn.
i. County
Plaintiff alleges that the BCDA “failed to implement
policies and procedures including training and supervision
to ensure that criminal defendants ... would not have their
constitutional rights violated,” and “had unconstitutionally
infirm policies and procedures that led to assistant district
attorneys not knowing their obligations under Brady, Giglio,
and discovery.” Compl. ¶¶ 267–68.
The County argues that this claim must be dismissed, because
plaintiff has not plausibly alleged a custom or policy of the
County that caused any alleged violations. County Mem. at
9–10. Plaintiff disagrees. Pl.’s Second Opp. at 70–75.
“ ‘Official municipal policy includes the decisions of
a government's lawmakers, the acts of its policymaking
officials, and practices so persistent and widespread as to
practically have the force of law.’ ” Friend, 61 F.4th at 93
(quoting Connick v. Thompson, 563 U.S. 51, 61, 131 S.Ct.
1350, 179 L.Ed.2d 417 (2011)).
*31 A plaintiff can satisfy the official policy element by
alleging, inter alia, that (1) “a municipal policy or ordinance
is itself unconstitutional,” Amnesty Am., 361 F.3d at 125;
(2) a municipality's persistent and widespread “practice, as
opposed to its formal policy, is to engage in the constitutional
violation at issue,” Green v. City of N.Y., 465 F.3d 65,
80 (2d Cir. 2006); (3) an official with final policymaking
authority makes a “a deliberate choice to follow a course of
action ... from among various alternatives,” Pembaur v. City
of Cincinnati, 475 U.S. 469, 483, 106 S.Ct. 1292, 89 L.Ed.2d
452 (1986); or (4) “the municipality is aware that its policy
for handling a given situation, although not unconstitutional
in itself, may be applied unconstitutionally, but nevertheless
consciously chooses not to train its employees in proper
application of the policy,” Green, 465 F.3d at 80.
First, plaintiff argues that the County is liable under Monell
for the acts of the prosecutor defendants, because they are all
alleged to be “final policymakers.” Pl.’s Second Opp. at 70–
75 (citing Compl. ¶¶ 252, 274).
“Where a plaintiff seeks to hold a municipality liable for
a ‘single decision by [a] municipal policymaker[ ],’... the
plaintiff must show that the official had final policymaking
power.” Roe v. City of Waterbury, 542 F.3d 31, 37 (2d Cir.
2008) (quoting Pembaur, 475 U.S. at 480, 106 S.Ct. 1292).
“Whether an official has final policymaking authority is a
legal question, determined on the basis of state law.” Roe
v. City of Waterbury, 542 F.3d at 37. “[T]he critical inquiry
is not whether an official generally has final policymaking
authority; rather, the court must specifically determine
whether the government official is a final policymaker with
respect to the particular conduct challenged in the lawsuit.”
Id.
As an initial matter, plaintiff has not plausibly alleged any
facts in support of his legal conclusion that DA Korchak,
Chief ADA Loughran, ADA Congdon, or ADA Cronin are
final policymakers. See generally Compl.
Setting that aside, the Second Circuit has held that a district
attorney acts as a final policymaker when the “district attorney
acts as the manager of the district attorney's office.” Walker
v. City of New York, 974 F.2d 293, 301 (2d Cir. 1992). Here,
the complaint plausibly alleges that DA Korchak acted as a
manager of the BCDA at various times. Compl. ¶¶ 103, 125.
Next, to prove the causation element, a plaintiff must
plausibly allege “either that the official who is a final
policymaker in the area directly committed or commanded
the violation of the plaintiff's federal rights ... or that ... he
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indirectly caused the misconduct of a subordinate municipal
employee.” Jeffes v. Barnes, 208 F.3d 49, 61 (2d Cir. 2000).
Plaintiff alleges that DA Korchak assigned plaintiff's case
to ADA Congdon, “whom [he] knew lacked the necessary
prosecutorial experience, knowledge, and training to handle
a serious felony investigation, and who repeatedly expressed
concern to [him] ... that she was being given more
responsibility than she could handle.” Compl. ¶ 125.
This is not enough. “The fact that inadequate scrutiny of
an applicant's background would make a violation of rights
more likely cannot alone give rise to an inference that a
policymaker's failure to scrutinize the record of a particular
applicant produced a specific constitutional violation.” Bd. of
Cnty. Comm'rs of Bryan Cnty., Okl. v. Brown, 520 U.S. 397,
410–11, 117 S.Ct. 1382, 137 L.Ed.2d 626 (1997) (emphasis
in original). Instead, “[a] plaintiff must demonstrate that a
municipal decision reflects deliberate indifference to the risk
that a violation of a particular constitutional or statutory right
will follow the decision.” Id. at 411, 117 S.Ct. 1382.
Plaintiff also points out that the BCDA hired ADA Congdon,
who had no prosecutorial experience, less than a month before
assigning her to his case. Compl. ¶ 103(a). According to
plaintiff, ADA Congdon was quickly promoted to Bureau
Chief of the Special Victims Bureau, even though she
had expressed “that she believed she lacked sufficient
prosecutorial experience for the role.” Id. ¶ 103(c). Plaintiff
further contends that, “[d]espite having been a member of the
Bar of the State of New York from 2012, and despite having
practiced criminal defense for nearly a decade, Congdon did
not understand her legal obligations as a prosecutor.” Id. ¶
103(f).
*32 Still, taken as true, these allegations could not
plausibly amount to an inference that defendants were
deliberately indifferent in hiring and assigning ADA Congdon
to plaintiff's case. An official's failure to adequately
scrutinize an applicant's background amounts to deliberate
indifference “[o]nly where adequate scrutiny of [the]
applicant's background would lead a reasonable policymaker
to conclude that the plainly obvious consequence of the
decision to hire ... would be the deprivation of a third party's
federally protected right.” Bd. of Cnty. Comm'rs of Bryan
Cnty., Okl., 520 U.S. at 411, 117 S.Ct. 1382. Here, that is not
the case.
Plaintiff admits that ADA Congdon had nearly ten years of
experience as a criminal defense attorney. Compl. ¶ 103(f).
The fact that she had never been a prosecutor and had
expressed some reluctance about taking on a leadership role,
without more, could not plausibly lead a policymaker “to
conclude that the plainly obvious consequence of the decision
to hire [ADA Congdon] ... would be the deprivation of
[plaintiff]’s federally protected right.” Bd. of Cnty. Comm'rs
of Bryan Cnty., Okl., 520 U.S. at 411, 117 S.Ct. 1382.
Next, plaintiff argues that the County should be held liable
under Monell because the BCDA employed inadequate
training procedures. Compl. ¶¶ 193, 268.
“A municipality's culpability for a deprivation of rights is at
its most tenuous where a claim turns on a failure to train.”
Connick, 563 U.S. at 61, 131 S.Ct. 1350. “Only where a
failure to train reflects a ‘deliberate’ or ‘conscious’ choice
by the municipality can the failure be properly thought of as
an actionable city ‘policy.’ ” City of Canton, Ohio v. Harris,
489 U.S. 378, 379, 109 S.Ct. 1197, 103 L.Ed.2d 412 (1989).
“Moreover, the identified deficiency in the training program
must be closely related to the ultimate injury.” Id.
First, Plaintiff alleges ADA Congdon failed to recognize and
disclose exculpatory evidence because the BCDA failed to
train its assistant district attorneys regarding their disclosure
obligations under Brady. Compl. ¶ 268. This allegation cannot
support a plausible Monell claim.
To establish Monell liability, there must be “a direct causal
link between a municipal policy or custom and the alleged
constitutional deprivation.” City of Canton, 489 U.S. at 385,
109 S.Ct. 1197. Because plaintiff has not plausibly alleged a
Brady violation, see supra Point IV.B.4.ii, he cannot impose
Monell liability on the County based on a custom or policy
that allegedly caused such a violation.
Plaintiff's allegation that ADA Congdon erroneously
instructed the grand jury because of the BCDA's “improper
practices and procedures,” Compl. ¶ 193, fails for largely
the same reasons. Plaintiff has plausibly alleged that his
constitutional rights were violated only when ADA Congdon
instructed Herceg to delete electronic data during the
investigation. See supra Point IV.B.3. There is no direct causal
link between this constitutional violation and the BCDA's
allegedly deficient training procedures with respect to grand
jury instructions.
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In sum, plaintiff has not plausibly alleged that an official
policy or practice of the BCDA caused any alleged
constitutional deprivation. Accordingly, plaintiff's Monell
claim against the County must be dismissed.
ii. City
Plaintiff's second Monell claim is asserted against
“Defendants City of Binghamton, Zikuski, and Minor.”
Compl. p. 61.
In Monell, the Supreme Court noted that:
Since official-capacity suits generally
represent only another way of pleading
an action against an entity of which
an officer is an agent ... local
government officials sued in their
official capacities are “persons” under
§ 1983 in those cases in which, as here,
a local government would be suable in
its own name.
*33 436 U.S. at 691 n.55, 98 S.Ct. 2018.
Conversely, “a suit against a government official in his or
her personal capacity cannot lead to ... liability upon the
governmental entity,” because “a municipality cannot be
made liable under 42 U.S.C. § 1983 on a respondeat superior
basis.” Graham, 473 U.S. at 167–68, 105 S.Ct. 3099. In
other words, a municipal official, sued only in their personal
or individual capacity, is not a proper defendant to a claim
premised on Monell liability.
Plaintiff appears to be suing the individual BPD defendants in
only their personal capacities, see Compl. at 1 (naming Chief
Zikuski and Captain Minor “in their individual capacities”),
warranting dismissal of his “Monell claim[s]” against them.
To the extent his claims are brought against either Chief
Zikuski or Captain Minor in their official capacities, “they are
redundant to the claims against the [City],” and are therefore
dismissed. Booker v. Bd. of Educ., Baldwinsville Cent. Sch.
Dist., 238 F. Supp. 2d 469, 475 (N.D.N.Y. 2002).
As to the City's liability, the Second Circuit has held that:
Where the plaintiff does proceed
against both the municipal actors
alleged to have inflicted the tort
and the municipality that promulgated
the offensive policy, the plaintiff's
failure to secure a judgment against
the individual actors would, indeed,
preclude a judgment against the
municipality if the ruling in favor
of the individual defendants resulted
from the plaintiff's failure to show that
they committed the alleged tort.
Askins v. Doe No. 1, 727 F.3d 248, 253–54 (2d Cir. 2013).
Plaintiff's Monell claim against the City necessarily depends
on his allegations against the individual BPD defendants.
Compl. ¶¶ 276–95. Fatally, plaintiff has not plausibly alleged
that any BPD defendant violated his constitutional rights. See
supra Points IV.B.1–5. Thus, plaintiff's Monell claim against
the City must be dismissed.
7. Civil Rights Conspiracy
Plaintiff's seventh cause of action is identified as a “Civil
Rights Conspiracy” claim against all defendants. Compl. ¶¶
296–301. Broadly, he alleges that defendants, “acting within
the scope of their employment and under color of state
law ... agreed among themselves and with other individuals
to act in concert in order to deprive [p]laintiff of his clearly
established” constitutional rights. Compl. ¶ 297.
Defendants argue that these claims must be dismissed because
(1) plaintiff has not plausibly alleged the existence of an
agreement between defendants; and (2) to the extent plaintiff's
claims are premised on conspiracies between actors wholly
within BPD or wholly within the BCDA, they are barred by
the intra-corporate conspiracy doctrine. Korchak & Loughran
Mem. at 28–30; County Mem. at 14–16; BPD Mem. at
37–39; Congdon Mem. at 26–28; Wagner Mem. at 24–26.
In opposition, plaintiff maintains that (1) he has plausibly
alleged all elements of his conspiracy claims; and (2) the intra-
corporate conspiracy doctrine is inapplicable, because “[t]he
Complaint sufficiently alleges that BPD defendants conspired
with BCDA[ ]defendants, and both conspired with Herceg
and Demkovich.” Pl.’s Second Opp. at 76–80.
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*34 “To survive a motion to dismiss, a conspiracy claim
under 42 U.S.C. § 1983 must allege facts plausibly suggesting
that (1) an agreement existed between two or more state
actors to act in concert to inflict an unconstitutional injury on
plaintiff, and (2) an overt act was committed in furtherance
of that goal.” Vega v. Artus, 610 F. Supp. 2d 185, 202
(N.D.N.Y. 2009) (citing Ciambriello v. Cnty. of Nassau, 292
F.3d 307, 324–25 (2d Cir. 2002)). “A complaint containing
only conclusory, vague, or general allegations of conspiracy
to deprive a person of constitutional rights cannot withstand a
motion to dismiss.” Sommer v. Dixon, 709 F.2d 173, 175 (2d
Cir. 1983).
Plaintiff alleges that either or both the BPD defendants
and the BCDA defendants conspired with the complainants
to fabricate the complainants’ allegations against plaintiff.
The Second Circuit addressed similar allegations in Betts v.
Shearman, 751 F.3d 78 (2d Cir. 2014). There, the § 1983
plaintiff alleged that two police officers conspired with a
private actor to arrest him based on a false allegation that
plaintiff assaulted the private actor. Id. at 86. The Second
Circuit affirmed a pre-answer dismissal of a conspiracy claim,
finding plaintiff's “allegation that [the private actor] was
coached by the Officers into making false accusations is not
plausible given that [the private actor] first called the police
and reported that she was assaulted prior to her interaction
with the officers.” Betts, 751 F.3d at 86 (emphasis added).
The logic of Betts applies with equal force to these facts. To
the extent plaintiff's conspiracy claim depends on the alleged
fabrication of the complainants’ allegations, it, too, must fail.
Plaintiff alleges that the complainants initially reported the
alleged sexual assault to the New York State Police, who
directed them to contact BPD. Compl. ¶ 76. Accordingly, he
has not plausibly alleged that the complainants conspired with
either BPD or the BCDA to generate their false allegations.
Plaintiff also argues that defendants conspired with one
another and the complainants to disregard and suppress
exculpatory evidence in order to arrest and prosecute him
without probable cause and deny him the right to a fair trial.
Compl. ¶¶ 297, 298(c).
As with failure to intervene, a plaintiff bringing “a § 1983
conspiracy claim must [plead and] prove an actual violation
of constitutional rights.” Singer, 63 F.3d at 119. Plaintiff has
plausibly alleged that ADA Congdon violated his rights by
instructing Herceg to delete electronic data relating to the
night of the alleged assault. See supra Point IV.B.3–4. But he
does not allege that any other defendants were aware of or
involved in this violative conduct.
While plaintiff does allege that ADA Congdon worked
closely with BPD officers and other BCDA employees during
the investigation, Compl. ¶ 120, this allegation, without more,
does not permit an inference that defendants entered an
agreement with ADA Congdon to violate plaintiff's rights.
Because plaintiff has alleged that just ADA Congdon and
Herceg were present at the time of the alleged violations,
plaintiff has only plausibly alleged his civil conspiracy claims
against them. Accordingly, plaintiff's civil conspiracy claims
are dismissed as to all other moving defendants.
8. Qualified Immunity
ADA Congdon argues that she is entitled to qualified
immunity for any alleged actions not protected by absolute
immunity. Congdon Mem. 18–21. In opposition, plaintiff
argues that courts generally deny qualified immunity where
prosecutors allegedly fabricated evidence while acting in an
investigative capacity. Pl.’s Second Opp. 50–53.
*35 “Qualified immunity is available to officials so long as
their actions do not violate ‘clearly established statutory or
constitutional rights of which a reasonable person would have
known.’ ” Chamberlain Est. of Chamberlain v. City of White
Plains, 960 F.3d 100, 110 (2d Cir. 2020) (quoting Harlow v.
Fitzgerald, 457 U.S. 800, 818, 102 S.Ct. 2727, 73 L.Ed.2d
396 (1982)).
“[A]s a general rule, ‘the defense of qualified immunity
cannot support the grant of a [Rule] 12(b)(6) motion.’ ”
Chamberlain Est. of Chamberlain, 960 F.3d at 110 (quoting
Green v. Maraio, 722 F.2d 1013, 1018 (2d Cir. 1983)). “Not
only must the facts supporting the defense appear on the face
of the complaint, but, as with all Rule 12(b)(6) motions, the
motion may be granted only where it appears [that the alleged
facts, if true, plausibly state a claim] that would entitle him
to relief.’ ” Chamberlain Est. of Chamberlain, 960 F.3d at
110 (quoting McKenna v. Wright, 386 F.3d 432, 436 (2d Cir.
2004)).
“Thus, a qualified immunity defense presented on a Rule
12(b)(6) motion ‘faces a formidable hurdle ... and is usually
not successful.’ ” Chamberlain Est. of Chamberlain, 960 F.3d
at 111 (quoting Field Day, LLC v. Cnty. of Suffolk, 463 F.3d
167, 191–92 (2d Cir. 2006)).
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As noted supra, plaintiff's surviving § 1983 claims against
ADA Congdon for malicious prosecution, fabrication of
evidence, and civil rights conspiracy are all premised on his
allegation that ADA Congdon instructed complainant Herceg
to delete exculpatory electronic data.
“Government officials may be held liable for fabricating
evidence through false statements or omissions,” Morse, 804
F.3d at 547 (emphasis added), and the Second Circuit has
explicitly held that the “right not to be deprived of liberty as
a result of any government officer's fabrication of evidence ...
was clearly established in 1996.” Zahrey, 221 F.3d at 357
(emphasis in original).
According to plaintiff, ADA Congdon allegedly violated this
clearly established right sometime during or after December
2021. Compl. ¶¶ 72, 110. Therefore, at this stage, ADA
Congdon is not entitled to qualified immunity.
C. State Law Claims
Plaintiff identifies his state law causes of action as: (1) false
arrest and malicious prosecution; (2) intentional, reckless,
or negligent infliction of emotional distress; (3) violation
of sections 6 and 12 of Article I of the New York State
Constitution; (4) respondeat superior; and (5) abuse of
process. Compl. ¶¶ 302–339. The moving defendants seek
dismissal of all state law causes of action asserted against
them. Korchak & Loughran Mem. 17–21, 30–31; County
Mem. at 17–26; BPD Mem. at 24–32, 35–36, 39–43;
Congdon Mem. at 21–25, 28–29; Wagner Mem. at 16–21, 26–
31.
As an initial matter, “[i]t is well-established ... that respondeat
superior ‘is not a cause of action at all, but a theory of
liability that must attach to a separate claim.’ ” Lederman v.
Benepe, 2016 WL 11588628, at *5 (S.D.N.Y. Mar. 11, 2016)
(quoting Alexander v. Westbury Union Free Sch. Dist., 829
F. Supp. 2d 89, 110 n.6 (E.D.N.Y. 2011)). Accordingly, the
Court addresses respondeat superior liability in tandem with
the underlying cause(s) of action for which it is asserted.
1. False Arrest
Plaintiff's eighth cause of action is identified as “false arrest
and malicious prosecution” and is asserted against “All
Defendants.” Compl. ¶¶ 302–16.
*36 False arrest and malicious prosecution are distinct
causes of action under state law. See Broughton, 373 N.Y.S.2d
87, 335 N.E.2d at 313 (“Although [false imprisonment
and malicious prosecution] are kindred actions, each
protects a different personal interest and is composed of
different elements.”). Accordingly, the Court addresses them
separately.
Beginning with false arrest, the City and the individual BPD
defendants argue that plaintiff's state law false arrest claim
must be dismissed because it is time-barred. BPD Mem. at
26–28. In response, plaintiff has “withdraw[n] his cause[ ] of
action for ... false arrest.” Pl.’s Second Opp. at 80 n. 20.
Accordingly, plaintiff's state law false arrest claims are
dismissed as to all moving defendants.
2. Malicious Prosecution
Defendants have moved to dismiss plaintiff's state law
malicious prosecution claims, arguing that they are time-
barred, BPD Mem. at 25–26, 28–29, and insufficiently
pleaded. Korchak & Loughran Mem. at 19–21; County Mem.
at 18–21; BPD Mem. at 28–32; Congdon Mem. at 23–24;
Wagner Mem. at 18–21. The City also contends that plaintiff
has failed to plead compliance with New York's notice of
claim requirements. BPD Mem. at 24–26.
The City argues that plaintiff's state law malicious prosecution
claims are time-barred because they accrued when Broome
County Court dismissed the criminal charges against him, on
May 20, 2023, and he filed this action more than one year and
ninety days later. BPD Mem. at 25, 28–29.
Although, under New York law, “causes of action to recover
damages for intentional torts ... are generally subject to
a one-year period of limitations ... intentional tort causes
of action asserted against municipal defendants must be
commenced within the one–year–and–90–day statute of
limitations contained in General Municipal Law § 50–i.”
Williams v. City of N.Y., 153 A.D.3d 1301, 1305 (N.Y. App.
Div. 2d Dep't 2017).
“Under New York law, the cause of action for malicious
prosecution accrues ‘when plaintiff first becomes entitled to
maintain the action, (namely, when there is a determination
favorable to plaintiff).’ ” Riverhead Park Corp. v. Cardinale,
881 F. Supp. 2d 376, 381 (E.D.N.Y. 2012) (quoting 10 Ellicott
Square Court Corp. v. Violet Realty, Inc., 81 A.D.3d 1366,
1369 (N.Y. App. Div. 4th Dep't 2011)).
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For example, a trial court's dismissal of criminal charges
against a criminal defendant constitutes a “a determination
favorable to plaintiff,” notwithstanding the possibility or
pendency of an appeal. Marks v. Townsend, 97 N.Y. 590, 595
(N.Y. 1885) (holding party may sue for malicious prosecution
upon final judgment in trial court); Ciferri v. State, 118
A.D.2d 676, 676, 500 N.Y.S.2d 28 (1986) (holding statute
of limitations on malicious prosecution action “begins to run
upon dismissal of the charges by the trial court”); Lombardo
v. Cnty. of Nassau, 6 Misc.3d 836, 791 N.Y.S.2d 292, 296
(N.Y. Sup. Ct. 2004) (“New York courts have held that the
cause of action accrues when plaintiff first becomes entitled
to maintain the action (i.e., when there is a determination
favorable to plaintiff), notwithstanding the pendency of an
appeal”); Karen v. State, 111 Misc.2d 396, 444 N.Y.S.2d 381
(N.Y. Ct. Cl. 1981) (“[W]e believe consonance with the Court
of Appeals’ Marks decision calls for a finding of accrual on
trial court dismissal.”).
Plaintiff alleges that Broome County Court dismissed all
charges against him on May 31, 2023. Compl. ¶¶ 192,
196. Accordingly, the one-year-and-90-day limitations period
began to run from that day. Plaintiff filed this action over
nearly two years later, on March 18, 2025. Consequently, his
state law malicious prosecution claims are time-barred and
must be dismissed as to all moving defendants. 15
3. Intentional, Reckless, or Negligent Infliction of
Emotional Distress
*37 Plaintiff's ninth cause of action, for “Intentional,
Reckless, or Negligent Infliction of Emotional Distress,”
is asserted against “All Defendants.” Compl. ¶¶ 317–21.
Defendants argue that New York law does not permit this
claim under the facts alleged, and regardless, plaintiff has
failed to state a plausible claim for relief under this theory.
Korchak & Loughran Mem. at 30–31; County Mem. at 21–24;
BPD Mem. at 39–40; Congdon Mem. at 28–29; Wagner Mem.
at 26–29. In response, plaintiff has voluntarily withdrawn this
cause of action. Pl.’s Second Opp. at 80 n.20. Accordingly,
plaintiff's intentional, reckless, or negligent infliction of
emotional distress claims are dismissed as to all defendants.
4. New York Constitutional Violations
Plaintiff's “Tenth Cause of Action,” asserted against all
defendants, alleges violations of Article I, sections 6 and
12 of the New York State Constitution. Compl. ¶¶ 322–
26. Defendants have moved to dismiss this cause of action,
because (1) it is precluded by the availability of traditional
tort remedies and adequate alternative remedies under federal
law; and (2) regardless, it is not plausibly alleged. Korchak
& Loughran Mem. at 17–21; County Mem. at 24–25; BPD
Mem. at 35–36; Congdon Mem. at 25; Wagner Mem. at
31. Plaintiff argues that the Court should deny defendants’
motions as to this claim, because defendants “do not explain
how these other remedies could reach them under a theory of
[respondeat superior].” Pl.’s Second Opp. at 84.
The Court of Appeals has “recognized a private right of
action to recover damages against the State for violations
of the Equal Protection and Search and Seizure Clauses ...
Finding neither injunctive, declaratory, nor exclusionary
relief adequate to protect against the invasion of personal
liberty interests suffered by the claimants.” Martinez v. City of
Schenectady, 276 A.D.2d 993, 996, 714 N.Y.S.2d 572 (N.Y.
App. Div. 3d Dep't 2000) (citing Brown v. State, 89 N.Y.2d
172, 652 N.Y.S.2d 223, 674 N.E.2d 1129, 1140–41 (N.Y.
1996)), aff'ds 97 N.Y.2d 78, 735 N.Y.S.2d 868, 761 N.E.2d
560 (N.Y. 2001). “[H]owever, the Court of Appeals made
it clear that th[is] ‘narrow remedy’... was not ‘boundless.’ ”
Lyles v. State, 2 A.D.3d 694, 695, 770 N.Y.S.2d 81 (N.Y. App.
Div. 2d Dep't 2003) (quoting Martinez v. City of Schenectady,
97 N.Y.2d 78, 735 N.Y.S.2d 868, 761 N.E.2d 560, 563 (N.Y.
2001)), aff'd, 3 N.Y.3d 396, 787 N.Y.S.2d 216, 820 N.E.2d
860 (N.Y. 2004).
In Lyles, the Appellate Division for the Second Department
held that:
recognition of the claimant's State
constitutional claims was neither
necessary nor appropriate to ensure the
full realization of his rights, because
the alleged wrongs could have been
redressed by an alternative remedy,
namely, timely interposed common-
law tort claims for assault and battery,
false imprisonment, and the intentional
and negligent injury to his property.
2 A.D.3d at 695, 770 N.Y.S.2d 81.
Similarly, here, plaintiff alleges that his rights under the
New York State Constitution were violated by defendants
when he was arrested, charged, and forced to spend “nearly
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two years fighting patently false allegations and criminal
charges.” Compl. ¶ 325. This is the same conduct that
underlies his state law tort claims. See id. ¶ 323 (“The conduct
of Defendants, described above, also violated Mr. Kweller's
rights under the New York State Constitution, Article I, §§ 6
and 12.”). Accordingly, it is not necessary to recognize a state
constitutional claim, because plaintiff's alleged wrongs could
have been redressed by timely interposed common-law tort
claims, which permit a damages remedy. See id. ¶¶ 220–27.
5. Abuse of Process
Plaintiff's twelfth cause of action, for “abuse of process,” is
asserted against the City, DA Korchak, and Chief Zikuski.
Compl. ¶¶ 332–39. Defendants argue that this claim must
be dismissed, because plaintiff has failed to plausibly allege
that they distorted regularly issued process to accomplish
a collateral objective, or that they had an intent to do
harm. Korchak & Loughran Mem. at 31–32; BPD Mem.
at 41. In opposition, plaintiff argues that the “extraordinary
level of public outcry” alleged in the complaint created a
reasonable inference that defendants had an improper motive
for continuing the prosecution. Pl.’s Second Opp. at 85.
*38 “Abuse of process has three essential elements: (1)
regularly issued process, either civil or criminal, (2) an intent
to do harm without excuse or justification, and (3) use of the
process in a perverted manner to obtain a collateral objective.”
Curiano v. Suozzi, 63 N.Y.2d 113, 480 N.Y.S.2d 466, 469
N.E.2d 1324, 1326 (N.Y. 1984). “The mere commencement
of an action, even with malicious intent, does not give rise
to a cause of action for abuse of process.” Dixon v. City of
Rochester, 234 A.D.3d 1301, 1302 (N.Y. App. Div. 4th Dept.
2025).
Plaintiff alleges no facts that could support an inference that
either DA Korchak or Chief Zikuski perverted the process
brought against him. See supra Point IV.B.1. Instead, he
alleges only that DA Korchak “was facing a re-election in the
upcoming year,” and there was “public outcry for the arrest
and prosecution of [p]laintiff.” Compl. ¶¶ 338–39.
However, “[i]t is not enough that the actor ha[s] an ulterior
motive in using the process of the court. It must further appear
that he did something in the use of the process outside of the
purpose for which it was intended ... [t]here must be a further
act done outside the use of the process—a perversion of the
process.” Hauser v. Bartow, 273 N.Y. 370, 7 N.E.2d 268, 269
(N.Y. 1937).
As discussed above, plaintiff has not plausibly alleged that
either DA Korchak or Chief Zikuski were personally involved
in any of the challenged conduct. See supra Point IV.B.1. The
fact that DA Korchak or Chief Zikuski had reason to benefit
from the perversion of the process against plaintiff cannot
permit the inference, absent any other allegations, that they
committed any acts to distort the process.
Accordingly, plaintiff's abuse of process claims against DA
Korchak and Chief Zikuski must be dismissed. Plaintiff's
abuse of process claim against the City must also be
dismissed, because it is necessarily premised on respondeat
superior liability, and plaintiff has failed to state a claim
against Chief Zikuski.
6. Qualified Immunity
Because all of plaintiff's state law claims have been dismissed,
the court need not reach the issue of qualified immunity under
state law.
D. Loss of Consortium
Plaintiff's wife, Ms. Liberman, does not assert any substantive
causes of action against defendants. See generally Compl.
Instead, she seeks damages for injuries she allegedly suffered
as a result of defendants’ arrest and prosecution of plaintiff.
Id. ¶¶ 213–19. Defendants argue that this claim must be
dismissed. BPD Mem. at 43–44; Congdon Mem. at 30–31;
Wagner Mem. at 31–32. The Court agrees.
All of plaintiff's state law claims have been dismissed, see
supra Point IV.C, and district courts have routinely held that §
1983 does not support derivative claims for damages, because
a party seeking only derivative damages has not alleged a
deprivation of their constitutional rights. See Harrison v.
Harlem Hosp., 2007 WL 2822231 (S.D.N.Y. Sept. 28, 2007)
(“While the Second Circuit has not addressed whether a
plaintiff may bring a loss of consortium claim pursuant to
federal civil rights statutes, the weight of authority holds
they may not.”), aff'd, 364 Fed. Appx. 686 (2d Cir. 2010)
(summary order); Rakchi v. City of New York, 800 F.Supp.3d
494, 502 (E.D.N.Y. 2025) (dismissing loss of services claim
brought pursuant to § 1983); Fleming v. Sharma, 605 F. Supp.
2d 399, 409 (N.D.N.Y. 2009); Chambers v. N. Rockland C.
Sch. Dist., 815 F. Supp. 2d 753, 772 n.16 (S.D.N.Y. 2011)
(collecting cases); Dilworth v. Goldberg, 914 F. Supp. 2d 433
(S.D.N.Y. 2012); Reed v. Medford Fire Dept., Inc., 806 F.
Supp. 2d 594, 606 (E.D.N.Y. 2011).
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*39 Accordingly, Ms. Liberman's sole claim for loss of
consortium claim must be dismissed.
E. Leave to Amend
Finally, the Court must address plaintiff's request for leave
to amend his complaint. Plaintiff argues that he should be
granted leave to amend his complaint (1) to remedy his
failure to plead compliance with New York notice of claim
requirements, Dkt. Nos. 43, 46; and (2) “to address any
[other] deficiency the Court identifies,” Pl.’s Second Opp. at
12. Defendants oppose plaintiff's request because he has not
complied with this District's Local Rules, and, regardless, any
proposed amendment would be futile. Dkt. No. 53 at 25; Dkt.
No. 56 at 5–6; Dkt. No. 61 at 11.
Under this District's Local Rules of Practice, “[a] party
moving to amend a pleading ... must attach an unsigned copy
of the proposed amended pleading to its motion papers.”
L.R. 15.1(a). “[T]he proposed amended pleading must be a
complete pleading, which will supersede the pleading sought
to be amended in all respects.” Id. A motion to amend “must
set forth specifically the proposed insertions and deletions
of language and identify the amendments in the proposed
pleading.” Id.
Plaintiff has not complied with this Local Rule. His failure
to attach a proposed amended pleading “precludes the Court
from ‘examin[ing] the exact amendment that it is being asked
to permit[;] ... ensur[ing] that all of the allegations asserted ...
are contained in a single document[;] ... [and] eliminat[ing]
the confusing nature of piecemeal amended pleadings.’ ”
Wynn v. Lee, 2019 WL 13546213, at *1 (N.D.N.Y. May 1,
2019) (quoting Cusamano v. Sobek, 604 F. Supp. 2d 416, 508
(N.D.N.Y. 2009)).
Plaintiff's non-compliance with the Local Rules is a sufficient
basis on which to deny his motion to amend. Reynolds-
Sitzer v. EISAI, Inc., 586 F. Supp. 3d 123 (N.D.N.Y. 2022)
(denying motion for leave to amend where plaintiffs requested
leave in a brief paragraph of their opposition papers and
failed to comply with the Local Rules); Webb v. Mentor
Worldwide LLC, 453 F. Supp. 3d 550 (N.D.N.Y. 2020)
(denying plaintiff's motion for leave to amend, in part, for
noncompliance with the Local Rules); Braxton v. Bell, 2020
WL 13908846, at *1 (N.D.N.Y. July 7, 2020) (denying
“motion to amend for failure to comply with the Local Rules
for the Northern District of New York and Federal Rules of
Civil Procedure.”).
While plaintiff is correct that leave to amend should be freely
given when justice so requires, Pl.’s Second Opp. at 87 (citing
Fed. R. Civ. P. 15(a)(2)), “a court need not always allow a
party to replead simply because it asked. In particular, denial
of leave to amend is proper where the request gives no clue as
to how the complaint's defects would be cured.” Noto v. 22nd
Century Grp., Inc., 35 F.4th 95, 107 (2d Cir. 2022) (internal
quotation omitted); Murphy Med. Assocs., LLC v. Yale Univ.,
120 F.4th 1107, 1114 (2d Cir. 2024) (affirming denial of leave
to amend where plaintiff failed to make formal motion to
amend or offer proposed amended complaint).
The only discernable amendment plaintiff has proposed is
an amendment to plead compliance with New York's notice
of claim requirements. See Dkt. Nos. 43, 46. Defendants
maintain that this amendment would be futile. Dkt. No. 61 at
11. The Court agrees.
*40 “Leave to amend may be denied on grounds of futility
if the proposed amendment fails to state a legally cognizable
claim.” AEP Energy Servs. Gas Holding Co. v. Bank of Am.,
N.A., 626 F.3d 699, 726 (2d Cir. 2010). For instance, “[c]laims
barred by an applicable statute of limitations are futile.” Jones
v. City of N.Y., 571 F. Supp. 3d 118, 126 (S.D.N.Y. 2021)
(citing Grace v. Rosenstock, 228 F.3d 40, 53 (2d Cir. 2000)).
Plaintiff's proposed amendment would not save any of his
state law claims. His state law malicious prosecution claims
were filed after the statute of limitations had run, see supra
Point IV.C.2, and he has not plausibly alleged any of his
other state law claims, see supra Point IV.C.4–5. Accordingly,
plaintiff's request for leave to amend must be denied.
V. CONCLUSION
Therefore, it is
ORDERED that
1. Chief Zikuski, Captain Minor, Investigator Miller,
DA Korchak, BCDA Investigator Wagner, Chief ADA
Loughran, and ADA Cronin, are dismissed;
2. Does 1–10 are dismissed;
3. The City and the County are dismissed; and
4. Plaintiff's Third, Eighth, Ninth, Tenth, and Twelfth
Causes of Action are dismissed against ADA Congdon.
5. Plaintiff's surviving claims against ADA Congdon are:
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Kweller v. County of Broome, Slip Copy (2025)
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-Section 1983 Malicious Prosecution;
-Section 1983 Denial of the Right to a Fair Trial based
on Fabrication of Evidence; and
-Section 1983 Civil Rights Conspiracy.
The Clerk of the Court is directed to:
a. Terminate the dismissed defendants from the docket
report; and
b. Terminate the moving defendants’ pending motions
(Dkt. Nos.19, 27, 29, 30, 31, 37).
IT IS SO ORDERED.
All Citations
Slip Copy, 2025 WL 3280821
Footnotes
1 The complaint is sequentially numbered by line. Accordingly, citations to the pleading correspond with that
document's internal pagination.
2 Pagination corresponds to the electronically generated CM/ECF headers.
3 Plaintiff does not indicate whether these messages were obtained from the BCDA report or the subsequently
obtained Saitta folder. Compl. ¶ 74.
4 A prosecutor has no duty to present exculpatory evidence to a grand jury, either. See United States v.
Williams, 504 U.S. 36, 37, 112 S.Ct. 1735, 118 L.Ed.2d 352 (1992) (“Because it has always been thought
sufficient for the grand jury to hear only the prosecutor's side, and, consequently that the suspect has no right
to present, and the grand jury no obligation to consider, exculpatory evidence, it would be incompatible with
the traditional system to impose upon the prosecutor a legal obligation to present such evidence.”).
5 ADA Congdon also insists that “[a] plain reading of the complaint ... makes clear that, prior to [ADA Congdon]’s
assignment to the case ... the complainants themselves had already conspired to delete their social media
accounts.” Congdon Mem. at 15. But, the complainants’ alleged conduct is irrelevant to whether ADA
Congdon's alleged conduct occurred while acting in an investigative capacity.
6 For reasons that will be explained infra, the Court will address plaintiff's Fourth Cause of Action for
“supervisory liability” in conjunction with personal involvement.
7 Plaintiff only asserts § 1983 claims for failure to intervene, supervisory liability, and civil rights conspiracy
against Chief ADA Loughran. Compl. ¶¶ 206–10, 211–17, 263–66.
8 Plaintiff's allegations that (1) DA Korchak issued a public statement encouraging those with knowledge about
recent “incidents” in Broome County to contact the BCDA or BPD, Compl. ¶ 99, and (2) DA Korchak and Chief
ADA Loughran failed to correct false information circulating in the media, id. ¶ 124, fare no better. Taken as
true, neither of these allegations amount to a violation of plaintiff's constitutional rights.
9 In Heck v. Humphrey, the Supreme Court held that the accrual of a civil tort claim arising from an allegedly
unlawful imprisonment or conviction should be deferred where that claim, if proven, would impugn the
validity of an existing conviction. 512 U.S. 477, 484, 114 S.Ct. 2364, 129 L.Ed.2d 383 (1994). Under those
circumstances, the statute of limitations would toll until “until the setting aside of an extant conviction.”
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Wallace, 549 U.S. at 393, 127 S.Ct. 1091 (emphasis in original). But because plaintiff was never convicted,
the deferred accrual rule established in Heck is inapplicable. Id. at 394–95.
10 The Second Circuit “recognizes an equitable tolling doctrine in the context of § 1983 actions, and when a
‘defendant fraudulently conceals the wrong, the time [limit of the statute of limitations] does not begin running
until the plaintiff discovers, or by the exercise of reasonable diligence should have discovered, the cause of
action.’ ” Pinaud v. Cnty. of Suffolk, 52 F.3d 1139, 1157 (2d Cir. 1995) (quoting Keating v. Carey, 706 F.2d
377, 382 (2d Cir. 1983)).
However, equitable tolling applies “only in rare and exceptional circumstances, where ... extraordinary
circumstances prevented a party from timely performing a required act, and that the party acted with
reasonable diligence throughout the period he [sought] to toll.” Walker v. Jastremski, 430 F.3d 560, 564 (2d
Cir. 2005) (internal quotation omitted). No such circumstances exist here.
11 Regardless, ADA Congdon “had the discretion and authority to decide what evidence to present to the
grand jury—[and] was under no duty to present every item of arguably exculpatory evidence in seeking an
indictment.” Savino, 331 F.3d at 75.
12 The same is true with respect to plaintiff's other allegations that ADA Congdon was generally inexperienced.
See Compl. ¶¶ 106-07, 125, 165-67, 169.
13 In his opposition papers, plaintiff seemingly rejects fabrication as a basis for this claim, stating that “[a] fair trial
claim does not have to involve fabricated evidence,” and “the Second Circuit has explicitly recognized that
suppression of exculpatory evidence—whether intentional or reckless—also gives rise to a cognizable fair
trial claim.” Pl.’s Second Opp. at 62. But, because the complaint alleges that defendants “deprived [plaintiff] of
his right to due process by fabricating inculpatory evidence,” Compl. ¶ 231, the Court addresses both theories.
14 While the Second Circuit has not addressed whether law enforcement officials or prosecutors have a duty
to intercede in a prosecutor's alleged misconduct, plaintiff's surviving claims against ADA Congdon concern
actions taken in her investigatory capacity, for which she, like a law enforcement officer, is entitled to
qualified immunity at most. See Buckley, 509 U.S. at 273, 113 S.Ct. 2606 (“When a prosecutor performs
the investigative functions normally performed by a detective or police officer, it is ‘neither appropriate nor
justifiable that, for the same act, immunity should protect the one and not the other.’ ” (quoting Hampton, 484
F.2d at 608)). Thus, for purposes of assessing defendants’ failure to intervene in ADA Congdon's alleged
constitutional violations, she will be treated as a law enforcement officer.
15 The limitations period set forth in N.Y. Gen. Mun. Law § 50-i also applies to an action against an employee
of a municipality where the municipality is deemed “the real party in interest,” i.e., where the employee's
alleged conduct occurred within the scope of their employment, such that the municipality would be required
to indemnify them. See Ruggiero v. Phillips, 292 A.D.2d 41, 44, 739 N.Y.S.2d 797, 800 (2002); Ripka v. Cnty.
of Madison, 162 A.D.3d 1371, 1373 (N.Y. App. Div. 3d Dep't 2018); Clark v. City of Ithaca, 235 A.D.2d 746,
746, 652 N.Y.S.2d 819 (N.Y. App. Div. 3d Dep't 1997).
Although plaintiff has alleged that the individual defendants were acting within the scope of their employment,
Compl. ¶¶ 18–24, some courts have held that the limitations period set forth in N.Y. Gen. Mun. Law § 50-i does
not apply to claims against municipal employees for intentional torts, like malicious prosecution, because
municipalities do not have a duty to indemnify employees for their intentional wrongdoing or reckless. Coker
v. City of Schenectady, 200 A.D.2d 250, 253–54, 613 N.Y.S.2d 746 (N.Y. App. Div. 3d Dep't 1994). Under
those circumstances, courts apply the one-year statute of limitations provided by N.Y. C.P.L.R. § 215(3).
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Regardless of which limitations period applies to plaintiff's malicious prosecution claims against the individual
defendants, they are time-barred.
End of Document © 2026 Thomson Reuters. No claim to original U.S. Government Works.
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Lettieri v. Matson, Not Reported in Fed. Supp. (2024)
© 2026 Thomson Reuters. No claim to original U.S. Government Works. 1
2024 WL 4689006
Only the Westlaw citation is currently available.
United States District Court, N.D. New York.
David C. LETTIERI, Plaintiff,
v.
Karen MATSON, Exec. Director, Humane Society;
the Broome County Humane Society; David Gaska;
Joel L. Daniels; Michael Hockwater; Law Enforcement
Hockwater Agent, Western District of NY; Eric
Schmict, Western District of NY; Law Enforcement
Agent Schmict, Western District of NY; Broome
County District Attorney Office; Broome County
Ada Doe; Broome County Sheriff; Broome County
Sheriff Does #1-3; Federal Agent Does #1-6; Town of
Colesville; Paul Powell; Department of Justice; Paul
E. Bonanno; Megan A. Tokiash; Federal Bureau of
Investigation; Randall E. Garver; Jenelle Brigueal; Leon
Brown; Benjamin Hurting; State Trooper New York;
New York Trooper Doe; and Diana W., Defendants.
3:24-CV-0434 (GTS/ML)
|
Signed November 6, 2024
Attorneys and Law Firms
DAVID C. LETTIERI, 16091-509, Plaintiff, Pro Se,
Lewisburg U.S. Penitentiary, Inmate Mail/Parcels, P.O. Box
1000, Lewisburg, Pennsylvania 17837.
DECISION and ORDER
GLENN T. SUDDABY, United States District Judge
*1 Currently before the Court, in this pro se civil
rights action filed by David C. Lettieri (“Plaintiff”) against
the above-captioned agencies, entities and individuals
(“Defendants”), are (1) United States Magistrate Judge
Miroslav Lovric's Report-Recommendation recommending
that Plaintiff be required to pay the Court's filing and
administrative fee of $405.00 within thirty days or that
his Complaint be dismissed, without prejudice and without
further Order of the Court, for failure to do so, and (2)
Plaintiff's Objection to the Report-Recommendation. (Dkt.
Nos. 12, 13.)
After carefully reviewing the relevant papers herein,
including Magistrate Judge Lovric's thorough Report-
Recommendation, the Court can find no error in the Report-
Recommendation, clear or otherwise: Magistrate Judge
Lovric employed the proper standards, accurately recited
the facts, and reasonably applied the law to those facts.
(See generally Dkt. No. 12.) As a result, the Report-
Recommendation is accepted and adopted in its entirety for
the reasons set forth therein. (Id.) To those reasons, the Court
adds only one brief point.
Even when construed liberally, Plaintiff's Objection fails
to contain a specific challenge to a finding or conclusion
contained in the Report-Recommendation. (Dkt. No. 13.) 1
As a result, the “challenged” portions of the Report-
Recommendation are entitled to only a clear-error review, 2
which they easily survive. In the alternative, the Court finds
that any challenged portion of the Report-Recommendation
survives a de novo review: Magistrate Judge Lovric
committed no error in either calculating Plaintiff's accrued
“strikes” or assessing whether Plaintiff has alleged facts
plausibly suggesting that he was “under imminent danger of
serious physical injury” when he signed his Complaint.
*2 ACCORDINGLY, it is
ORDERED that Magistrate Judge Lovric's Report-
Recommendation (Dkt. No. 12) is ACCEPTED and
ADOPTED in its entirety; and it is further
ORDERED that Plaintiff's Complaint (Dkt. No. 1) will
be DISMISSED, without prejudice and without further
order of the Court, UNLESS he pays the Court's filing
and administrative fee of FOUR HUNDRED AND
FIVE DOLLARS AND ZERO CENTS ($405.00) within
THIRTY (30) DAYS of the entry of this Decision and Order;
and it is further
ORDERED that, should Plaintiff timely remit the above-
referenced $405.00 fee, Plaintiff's Complaint will be returned
to Magistrate Judge Lovric for initial review pursuant to 28
U.S.C. § 1915A.
All Citations
Not Reported in Fed. Supp., 2024 WL 4689006
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Lettieri v. Matson, Not Reported in Fed. Supp. (2024)
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Footnotes
1 When a specific objection is made to a portion of a magistrate judge's report-recommendation, the Court
subjects that portion of the report-recommendation to a de novo review. Fed. R. Civ. P. 72(b)(2); 28 U.S.C. §
636(b)(1)(C). To be “specific,” the objection must, with particularity, “identify [1] the portions of the proposed
findings, recommendations, or report to which it has an objection and [2] the basis for the objection.” N.D.N.Y.
L.R. 72.1(c). See also Mario v. P&C Food Markets, Inc., 313 F.3d 758, 766 (2d Cir. 2002) (“Although Mario
filed objections to the magistrate's report and recommendation, the statement with respect to his Title VII
claim was not specific enough to preserve this claim for review. The only reference made to the Title VII claim
was one sentence on the last page of his objections, where he stated that it was error to deny his motion on
the Title VII claim ‘[f]or the reasons set forth in Plaintiff's Memorandum of Law in Support of Motion for Partial
Summary Judgment.’ This bare statement, devoid of any reference to specific findings or recommendations
to which he objected and why, and unsupported by legal authority, was not sufficient to preserve the Title
VII claim.”).
2 When no specific challenge is made to a magistrate judge's report-recommendation, the Court subjects that
report-recommendation to only a “clear error” review. Fed. R. Civ. P. 72(b)(2),(3); Fed. R. Civ. P. 72(b),
Advisory Committee Notes: 1983 Addition; see also Brown v. Peters, 95-CV-1641, 1997 WL 599355, at *2-3
(N.D.N.Y. Sept. 22, 1997) (Pooler, J.) [collecting cases], aff'd without opinion, 175 F.3d 1007 (2d Cir. 1999).
When performing such a “clear error” review, “the court need only satisfy itself that there is no clear error on
the face of the record in order to accept the recommendation.” Fed. R. Civ. P. 72(b), Advisory Committee
Notes: 1983 Addition; see also Batista v. Walker, 94-CV-2826, 1995 WL 453299, at *1 (S.D.N.Y. July 31,
1995) (Sotomayor, J.) (“I am permitted to adopt those sections of [a magistrate judge's] report to which no
specific objection is made, so long as those sections are not facially erroneous.”) (internal quotation marks
omitted).
End of Document © 2026 Thomson Reuters. No claim to original U.S. Government Works.
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Lewis v. City of New York, 762 F.Supp.3d 290 (2025)
© 2026 Thomson Reuters. No claim to original U.S. Government Works. 1
762 F.Supp.3d 290
United States District Court, S.D. New York.
Robert LEWIS, Plaintiff,
v.
The CITY OF NEW YORK, Defendant.
24 Civ. 2336 (AT) (RWL)
|
Signed January 8, 2025
Synopsis
Background: After city department of buildings issued an
emergency declaration recommending that building facade
be entirely demolished, city department of housing and
preservation did so, and city billed building owner for
expenses incurred, owner brought § 1983 action against city,
claiming a taking without compensation in violation of the
Fifth Amendment, deprivation of due process in violation of
the Fourteenth Amendment, and imposition of excessive fines
in violation of the Eighth Amendment. City moved to dismiss
for lack of subject-matter jurisdiction and for failure to state
a claim.
Holdings: The District Court, Analisa Torres, J., adopted
report and recommendation of Robert W. Lehrburger, United
States Magistrate Judge, which held that:
[1] it had no federal subject-matter jurisdiction for which
supplemental jurisdiction could or should be exercised;
[2] owner did not state a claim for a physical taking;
[3] owner failed to plausibly allege a regulatory taking claim;
[4] owner failed to state a non-categorical taking;
[5] owner had no claim for deprivation of procedural due
process;
[6] owner failed to state a claim for violation of substantive
due process; and
[7] owner failed to assert a constitutional claim for imposition
of excessive fines.
Claims dismissed without prejudice.
Procedural Posture(s): Motion to Dismiss for Lack of
Subject Matter Jurisdiction; Motion to Dismiss for Failure to
State a Claim.
West Headnotes (45)
[1] Evidence Public records and documents in
general
Federal Civil Procedure Matters
considered in general
District court may take judicial notice of public
records in deciding a motion to dismiss.
[2] Federal Courts Dismissal or other
disposition
A court must dismiss a claim if it lacks statutory
or constitutional power to adjudicate it.
[3] Federal Courts Weight and sufficiency
Plaintiff bears burden of proving subject-matter
jurisdiction by a preponderance of evidence.
[4] Federal Courts Presumptions and burden
of proof
In deciding a motion to dismiss for lack of
subject-matter jurisdiction, court must take all
facts alleged in complaint as true and draw all
reasonable inferences in favor of plaintiff. Fed.
R. Civ. P. 12(b)(1).
[5] Federal Courts Evidence; Affidavits
In deciding a motion to dismiss for lack of
subject-matter jurisdiction, court may consider
affidavits and other materials beyond pleadings
to resolve jurisdictional issue. Fed. R. Civ. P.
12(b)(1).
[6] Federal Civil Procedure Insufficiency in
general
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Where a complaint pleads facts that are merely
consistent with a defendant's liability, it stops
short of line between possibility and plausibility
of entitlement to relief, as required to survive a
motion to dismiss for failure to state a claim. Fed.
R. Civ. P. 12(b)(6).
[7] Federal Civil Procedure Insufficiency in
general
To survive a motion to dismiss for failure to state
a claim, complaint's factual allegations must be
enough to raise a right to relief above speculative
level, i.e., enough to make claim plausible. Fed.
R. Civ. P. 12(b)(6).
[8] Federal Civil Procedure Clear or certain
nature of insufficiency
A complaint is properly dismissed for failure to
state a claim where, as a matter of law, allegations
in complaint, however true, could not raise a
claim of entitlement to relief. Fed. R. Civ. P.
12(b)(6).
[9] Evidence Public records and documents in
general
Evidence Matters referred to or
incorporated by pleadings
Federal Civil Procedure Matters
considered in general
For the purposes of considering a motion
to dismiss for failure to state a claim,
a court generally is confined to facts
alleged in complaint, but may also consider
additional materials, including documents
attached to complaint, documents incorporated
into complaint by reference, public records, and
documents that plaintiff either possessed or knew
about, and relied upon, in bringing suit. Fed. R.
Civ. P. 12(b)(6).
[10] Federal Civil Procedure Construction of
pleadings
Federal Civil Procedure Matters deemed
admitted; acceptance as true of allegations in
complaint
If a document relied on in complaint contradicts
allegations in complaint, the document, not
allegations in complaint, controls, for purposes
of a motion to dismiss for failure to state a
claim, and court need not accept allegations in
complaint as true. Fed. R. Civ. P. 12(b)(6).
[11] Civil Rights Nature and elements of civil
actions
To state a cause of action under § 1983, a plaintiff
must allege that some person acting under color
of state law deprived him of a federal right. 42
U.S.C.A. § 1983.
[12] Civil Rights Rights Protected
Because § 1983 does not provide its own
substantive right, plaintiffs must identify
federally-protected right that was allegedly
violated. 42 U.S.C.A. § 1983.
[13] Civil Rights Nature and elements of civil
actions
In a § 1983 case, a plaintiff must show that (1)
defendant acted under color of state law and that
(2) as a result of defendant's actions, plaintiff
suffered a denial of federal statutory rights or
constitutional rights or privileges. 42 U.S.C.A. §
1983.
[14] Civil Rights Acts or Conduct Causing
Deprivation
In all § 1983 cases, plaintiff must prove that
defendant's action was a proximate cause of
plaintiff's injury. 42 U.S.C.A. § 1983.
[15] Federal Civil Procedure Pro Se or Lay
Pleadings
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Pro se complaints must be construed liberally
and interpreted to raise the strongest arguments
that they suggest.
[16] Attorneys and Legal Services Role of
court in general
Attorneys and Legal Services Procedural
matters in general
The Second Circuit, as a general matter, is
solicitous of pro se litigants, enforcing standards
of procedural leniency rather than holding them
to rigidities of federal practice.
[17] Federal Civil Procedure Pro Se or Lay
Pleadings
Even pro se plaintiffs cannot withstand a motion
to dismiss for failure to state a claim unless their
pleadings contain factual allegations sufficient to
raise a right to relief above speculative level, and
must allege enough facts to state a claim to relief
that is plausible on its face. Fed. R. Civ. P. 12(b)
(6).
[18] Federal Courts Limited jurisdiction;
jurisdiction as dependent on constitution or
statutes
Notwithstanding the liberal pleading standards
afforded pro se litigants, federal courts are courts
of limited jurisdiction and may not preside over
cases if they lack subject-matter jurisdiction.
Fed. R. Civ. P. 12(b)(1).
1 Case that cites this headnote
[19] Federal Civil Procedure Failure to
Prosecute
A potential basis for dismissal of building
owner's § 1983 action against city, resulting
from city demolishing building's facade and
billing owner for expenses incurred, was failure
to prosecute; other than consenting to city's
request for an extension of time to respond
to complaint, owner had not participated in
litigation for several months, he neither met and
conferred to formulate a case management plan
and scheduling order nor submitted his own, he
failed to appear for initial pretrial conference
as ordered, he did not file any response to
city's motions to dismiss despite being afforded
multiple sua sponte extensions and despite being
warned that failure to file any opposition could
result in dismissal for failure to prosecute, and
no lesser sanction was likely to be effective. 42
U.S.C.A. § 1983; Fed. R. Civ. P. 41(b).
More cases on this issue
[20] Federal Civil Procedure Failure to
Prosecute
A failure to prosecute can evidence itself either
in an action lying dormant with no significant
activity to move it or in a pattern of dilatory
tactics. Fed. R. Civ. P. 41(b).
2 Cases that cite this headnote
[21] Federal Civil Procedure Violation of a
court order or rule in general
Federal Civil Procedure Failure to
Prosecute
Primary rationale for dismissal for failure to
prosecute, or for failure to comply with rules or
court orders, is failure of plaintiff in his duty to
process his case diligently. Fed. R. Civ. P. 41(b).
[22] Administrative Law and
Procedure Proceedings in General
Administrative Law and
Procedure Hearing; rehearing
A petitioner in an Article 78 proceeding is
permitted to submit affidavits and other written
proof of their claim, and where a triable issue of
fact is raised, petitioner may obtain a trial. N.Y.
CPLR § 7801 et seq.
[23] Administrative Law and
Procedure Jurisdiction
Constitutional Law Proceedings in which
question is raised
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Courts hearing Article 78 proceedings are courts
of limited jurisdiction and may not hear a general
constitutional challenge to a law or regulation,
but may entertain claims that application of a rule
is unconstitutional. N.Y. CPLR § 7801 et seq.
[24] Federal Courts Effect of dismissal or
other elimination of federal claims
District court had no federal subject-matter
jurisdiction for which supplemental jurisdiction
could or should be exercised, in building
owner's § 1983 action against city resulting from
city demolishing building's facade and billing
owner for expenses incurred; owner asserted
a claim pursuant to § 1983 for violation of
federal constitutional rights, if such a claim
was plausibly stated, district could would have
federal question jurisdiction, and district court
could consider whether it should exercise
supplemental jurisdiction over owner's Article
78 claims, but owner had not plausibly stated a
claim for a constitutional violation. 28 U.S.C.A.
§§ 1331, 1367; 42 U.S.C.A. § 1983; N.Y. CPLR
§ 7801 et seq.; Fed. R. Civ. P. 12(b)(1).
More cases on this issue
[25] Administrative Law and
Procedure Nature and Form of Remedy
To determine whether Article 78 applies to a
given dispute, a reviewing court must examine
substance of action to identify relationship out of
which claim arises and relief sought. N.Y. CPLR
§ 7801 et seq.
[26] Eminent Domain Necessity of just or full
compensation or indemnity
The Fifth Amendment, made applicable to states
under the Fourteenth Amendment, prohibits
government from taking private property for
public use without just compensation. U.S.
Const. Amends. 5, 14.
1 Case that cites this headnote
[27] Eminent Domain Nuisance and
demolition
Building owner did not state a claim for a
physical taking, in owner's § 1983 action against
city resulting from city demolishing building's
facade and billing owner for expenses incurred,
where owner did not allege that city had
physically taken building for a public purpose.
U.S. Const. Amend. 5; 42 U.S.C.A. § 1983.
More cases on this issue
[28] Eminent Domain What Constitutes a
Taking; Police and Other Powers Distinguished
A “physical taking” occurs when government
physically takes possession of an interest in
property for some public purpose. U.S. Const.
Amend. 5.
1 Case that cites this headnote
[29] Eminent Domain What Constitutes a
Taking; Police and Other Powers Distinguished
Government action that does not entail a physical
occupation, but merely affects use and value of
private property, is considered under framework
of regulatory takings, which can be categorical
or non-categorical. U.S. Const. Amend. 5.
3 Cases that cite this headnote
[30] Eminent Domain Zoning, Planning, or
Land Use; Building Codes
A “categorical regulatory taking” occurs in
extraordinary circumstance when no productive
or economically beneficial use of land is
permitted. U.S. Const. Amend. 5.
1 Case that cites this headnote
[31] Eminent Domain What Constitutes a
Taking; Police and Other Powers Distinguished
Anything less than a complete elimination of
value, or a total loss, is a “non-categorical
taking,” which is analyzed under framework
established in Penn Central. U.S. Const. Amend.
5.
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Lewis v. City of New York, 762 F.Supp.3d 290 (2025)
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1 Case that cites this headnote
[32] Eminent Domain What Constitutes a
Taking; Police and Other Powers Distinguished
Courts weigh three factors to determine
whether interference with property rises to
level of a non-categorical regulatory taking: (1)
economic impact of regulation on claimant, (2)
extent to which regulation has interfered with
distinct investment-backed expectations, and (3)
character of governmental action; consideration
of these factors aims to identify regulatory
actions that are functionally equivalent to
classic taking in which government directly
appropriates private property or ousts owner
from his domain. U.S. Const. Amend. 5.
2 Cases that cite this headnote
[33] Eminent Domain Nuisance and
demolition
Building owner failed to plausibly allege a
regulatory taking claim, in owner's § 1983 action
against city resulting from city demolishing
building's facade and billing owner for expenses
incurred; owner did not allege that demolition
of facade, fines imposed, or repair charge
liens had completely deprived owner of all
economically beneficial use of his building,
complaint speculated that city's actions were
intended to work a forfeiture of owner's equity
in building, but that assertion was purely
speculative and, in any event, did not allege that
owner had in fact forfeited all of his equity in
building or that he could not make use of building
despite demolition of its front facade. U.S. Const.
Amend. 5; 42 U.S.C.A. § 1983.
More cases on this issue
[34] Eminent Domain Nuisance and
demolition
Building owner failed to state a non-categorical
taking, under Penn Central factors, in owner's
§ 1983 action against city resulting from city
demolishing building's facade and billing owner
for expenses incurred; owner did not quantify
or characterize with any specificity overall
economic impact that any of city's administrative
actions at building had on him, owner did not
allege that city's actions had interfered with any
distinct investment-backed expectations, city's
actions, taken to remediate conditions posing
an immediate danger to the public, did not
constitute a taking, owner conceded that facade
was deteriorating and had already partly fallen,
and mere imposition of an obligation to pay
money did not constitute an unconstitutional
taking of property under the Fifth Amendment.
U.S. Const. Amend. 5; 42 U.S.C.A. § 1983.
1 Case that cites this headnote
More cases on this issue
[35] Eminent Domain What Constitutes a
Taking; Police and Other Powers Distinguished
Purpose of investment-backed expectation
requirement, as a Penn Central factor for a non-
categorical taking claim, is to limit recovery to
owners who could demonstrate that they bought
their property in reliance on a state of affairs that
did not include challenged regulatory regime.
U.S. Const. Amend. 5.
2 Cases that cite this headnote
[36] Eminent Domain Nuisance and
demolition
A municipal demolition of an imminently
dangerous structure in order to protect the public
is an exercise of police power and does not
constitute a “taking.” U.S. Const. Amend. 5.
[37] Constitutional Law Destruction of
property
Health Buildings, structures, and building
components
Building owner had no claim for deprivation of
procedural due process, in owner's § 1983 action
against city resulting from city demolishing
building's facade and billing owner for expenses
incurred; under exigent circumstances, where
part of building was literally falling to the ground
and endangering the public, due process did not
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require a pre-deprivation opportunity to be heard
so long as there was sufficient post-deprivation
process, and an Article 78 proceeding was
just such a post-deprivation remedy, as owner
could have brought an Article 78 proceeding
to challenge all of city agencies' actions about
which he complained. U.S. Const. Amend. 14;
42 U.S.C.A. § 1983; N.Y. CPLR § 7801 et seq.
More cases on this issue
[38] Constitutional Law Duration and timing
of deprivation; pre- or post-deprivation
remedies
Essential principle of constitutional right to
procedural due process is that a deprivation of
life, liberty, or property be preceded by notice
and an opportunity to be heard. U.S. Const.
Amend. 14.
[39] Constitutional Law Duration and timing
of deprivation; pre- or post-deprivation
remedies
In certain circumstances, due process does not
require a pre-deprivation opportunity to be heard
so long as there is sufficient post-deprivation
process. U.S. Const. Amend. 14.
[40] Constitutional Law Egregiousness;
"shock the conscience" test
To establish a violation of a right to substantive
due process, a plaintiff must demonstrate
not only government action but also that
the government action was so egregious, so
outrageous, that it may fairly be said to shock the
contemporary conscience. U.S. Const. Amend.
14.
[41] Constitutional Law Egregiousness;
"shock the conscience" test
In order to shock the conscience and trigger
a violation of substantive due process, official
conduct must be outrageous and egregious under
the circumstances; it must be truly brutal and
offensive to human dignity. U.S. Const. Amend.
14.
[42] Constitutional Law Particular claims
Constitutional Law Destruction of
property
Health Buildings, structures, and building
components
Building owner failed to state a claim for
violation of substantive due process, in owner's
§ 1983 action against city resulting from city
demolishing building's facade and billing owner
for expenses incurred; complaint did not allege
facts to plausibly claim that city actions to
demolish building facade in an emergency
situation and to bill owner charges incurred
were in any way egregious or outrageous, owner
admitted that building had deteriorated to such
an extent that a portion of facade fell to the
ground, descriptors owner invoked, including
“unjustified,” “irrational,” “excessive,” “foolish
and nonsensical,” and “bad faith,” fell well short,
and although owner raised a specter of racial
discrimination, such allegations were purely
speculative and not supported by any alleged
facts. U.S. Const. Amend. 14; 42 U.S.C.A. §
1983.
[43] Civil Rights Property and housing
Building owner failed to assert a constitutional
claim for imposition of excessive fines, in
owner's § 1983 action against city resulting
from city demolishing building's facade and
billing owner for expenses incurred; complaint
did not allege that amount charged by city
was not actual cost, plus interest, incurred by
city to remediate deteriorating facade, since city
repair charge liens were intended not to punish
owner but to compensate city for a loss, they
fell outside scope of Excessive Fines Clause,
complaint failed to plausibly allege that any fine
imposed based on conditions at building was
grossly disproportionate, and complaint did not
assert facts but alleged merely that violations and
summonses issued at building were “foolish and
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nonsensical” and “excessive and irrational.” U.S.
Const. Amend. 8; 42 U.S.C.A. § 1983.
More cases on this issue
[44] Fines Excessive fines
The Second Circuit has adopted a two-step
inquiry to decide whether a financial penalty
is excessive under the Eighth Amendment:
first, court must consider whether payment or
forfeiture at issue constitutes a “fine,” meaning
that it is punitive in nature and not purely
remedial, and second, court must determine
whether fine is grossly disproportional to
underlying offense. U.S. Const. Amend. 8.
1 Case that cites this headnote
[45] Fines Excessive fines
To determine whether a civil penalty is grossly
disproportionate under Eighth Amendment's
Excessive Fines Clause, court considers four
factors: (1) essence of crime of defendant and
its relation to other criminal activity, (2) whether
defendant fits into class of persons for whom
statute was principally designed, (3) maximum
sentence and fine that could have been imposed,
and (4) nature of harm caused by defendant's
conduct. U.S. Const. Amend. 8.
Attorneys and Law Firms
*296 Robert Lewis, New York, NY, Pro Se.
Isabella Jacqueline Kendrick, New York City Law
Department, New York, NY, for Defendant.
ORDER ADOPTING REPORT
AND RECOMMENDATION
ANALISA TORRES, District Judge:
On March 27, 2024, Plaintiff pro se, Robert Lewis, filed
this action again Defendant, the City of New York (the
“City”), alleging that the City violated his constitutional
rights by charging him excessive fines and effecting a taking
of his property without due process or just compensation.
See generally Compl, ECF No. 1. The City moved to
dismiss Lewis's complaint pursuant to Federal Rule of Civil
Procedure 12(b)(1) and (6). ECF Nos. 17–19. The Court
referred the motion to the Honorable Robert W. Lehrburger.
ECF No. 20. Despite being afforded the opportunity to
respond, Lewis filed no opposition papers. See ECF Nos. 16,
22–23.
After careful consideration, Judge Lehrburger issued a report
(the “R&R”) recommending that the City's motion be granted
and Lewis's claims be dismissed without prejudice to his (1)
amending the complaint to plausibly assert a constitutional
claim under 42 U.S.C. § 1983 or (2) bringing a proceeding in
New York state court. ECF No. 24 at 25; see N.Y. C.P.L.R. §
7801 et seq. Although he was notified of his light to object to
the R&R, Lewis did not file any objections, and the time to
do so has now passed. See R&R at 25; Fed. R. Civ. P. 72(b)
(2): Dkt. Entry 12/9/24. The Court, therefore, reviews the
R&R for clear error. See Whitley v. Bowden, No. 17 Civ. 3564,
2019 WL 1953941, at *1 (S.D.N.Y. May 1, 2019) (collecting
cases). The Court finds no clear error in Judge Lehrburger's
well-reasoned R&R.
Accordingly, the Court ADOPTS Judge Lehrburger's R&R
in its entirety. Lewis's claims are DISMISSED WITHOUT
PREJUDICE. By February 7, 2025, Lewis may file an
amended complaint.
SO ORDERED.
REPORT AND RECOMMENDATION TO HON.
ANALISA TORRES: MOTION TO DISMISS
ROBERT W. LEHRBURGER, United States Magistrate
Judge.
Plaintiff Robert Lewis (“Lewis” or “Plaintiff”), proceeding
pro se, brings this lawsuit challenging assessments and fines
charged in connection with remediating the unsafe condition
posed by the deteriorating façade of a building owned by
Lewis. Lewis claims that demolition of the façade was
unnecessary and that the Department of Buildings (“DOB”)
and the Department of Housing and Preservation (“HPD”) of
New York City (the “City” or “Defendant”) acted irrationally
and in bad faith. He claims the City is liable as a state
actor under 28 U.S.C. § 1983 for unconstitutional taking
in violation of the Fifth Amendment, deprivation of due
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process under the Fourteenth Amendment, and imposition of
excessive fines.
*297 The City has moved to dismiss pursuant to Rules 12(b)
(1) and 12(b)(6) of the Federal Rules of Civil Procedure for,
respectively, lack of subject matter jurisdiction, and failure to
state a claim. Lewis did not file any opposition to Defendants’
motion. For the reasons discussed below, I recommend that
the City's motion be GRANTED and the case dismissed
without prejudice.
FACTUAL BACKGROUND
[1] The facts are drawn from the Complaint and the public
records attached to the Declaration of Isabella J. Kendrick
(Dkt. 18 (“Kendrick Decl.”)). 1 As required on a motion to
dismiss, the Court accepts as true all well-pled allegations of
the complaint and draws all reasonable inferences in favor
of Lewis, the non-moving party. Applying a liberal reading
afforded to pro se plaintiffs, Lewis's allegations and claims
can be distilled to the following.
Lewis owns buildings at 724 and 726 St. Nicholas Avenue in
New York City. (Complaint (“Compl.”), Dkt. 1 ¶ 1.) At the
time the buildings originally were purchased by his parents
about 35 years ago, the building at 726 St. Nicholas Avenue
(the “Property”) was in disrepair. (Compl. ¶¶ 5-8.) At some
unspecified time, “the façade on [the Property] deteriorated
and a piece fell to the ground.” (Compl. ¶ 13.) On February
28, 2022, DOB issued an Immediate Emergency Declaration
recommending partial demolition of the Property's façade
because it had partially collapsed and posed a danger to
the public and adjacent properties. (Kendrick Decl. Ex. 1
at ECF 2.) On March 9, 2022, DOB issued an Amended
Emergency Declaration recommending that the façade be
entirely demolished. (Id. at ECF 3.) HPD issued work orders
consistent with the Emergency Declarations as reflected
in charge reports identifying fees for work that may be
billed to the Property. (See id. Ex. 2 at ECF 2-3.) As
directed, HPD's contractor demolished the front façade of
the Property. (Compl. ¶¶ 20, 24.) Lewis alleges that the
demolition proceeded without notice, an engineering report,
or allowing Lewis to have the Property inspected. (Compl. ¶¶
20-22, 46.)
Lewis alleges that removing the entire front façade was
unnecessary and that doing so damaged and diminished the
value of the Property. (Compl. ¶ 29; see also id. ¶ 32.)
He further alleges that HPD and DOB worked together to
block Lewis from making repairs and imposed “unjustified,”
“irrational,” and “excessive” fines and fees in order “to work
a forfeiture of Lewis’ equity” in the Property. (Compl. ¶¶ 31,
44; see also id. ¶ 29.) Lewis alleges that HPD and DOB have
acted inconsistently, such as by demanding that a sidewalk
shed be erected, yet refusing to give the permits required to do
so (Compl. ¶¶ 14-16), and irrationally, as exemplified by their
taking the position that a certificate of no harassment should
issue, even though there are no persons other than the Lewis
family in the buildings, and at the same time claiming they
do not have “the proper paper stock” on which to print the
certificate. (Compl. ¶¶ 33-34.) DOB has written “foolish and
nonsensical” notices of violation that were dismissed by the
Environmental Control Board for lack of evidence. (Compl.
¶¶ 40-43.) DOB and HPD allegedly violated rules of the New
York City Landmark Commission by failing to obtain a permit
for demolition of the Property's façade. (Compl. ¶¶ 23, 35.)
Lewis also asserts *298 that HPD has not provided copies of
contracts or other documents respecting the Property. (Compl.
¶ 30.)
Following completion of the contracted demolition work and
payment by HPD to its contractors, the City billed Lewis for
the expenses incurred by HPD in performing the emergency
work. (See Kendrick Decl. Ex. 3 (NYC Department of
Finance Quarterly Tax Statements).) The amounts billed to
Lewis approximate or exceed $450,000. (See id. at ECF
15 (identifying amount due as $448,726.28); Compl. ¶¶ 24
(alleging $485,500), 36 (alleging $485,000), 55 (alleging
$463,000).) Lewis characterizes the amounts invoiced as
“unreasonable, unjustified and in bad faith” and effectively a
taking without due process. (Compl. ¶ 36.) However, Lewis
does not allege that he filed a protest challenging the charges
with the HPD or any other City entity. (See generally Compl.)
Pursuant to law, the charges arising out of the demolition work
became a lien on the Property and began to accrue interest
when past due. NYC Admin. Code §§ 27-2144, 28-215.1.1.
The City has exacerbated the impairment of Lewis's property
rights by requiring him to restore the front façade to the
pre-demolition appearance yet dumping the stones in the
Property's yard “helter skelter” and “with no numbers or plans
for restoration.” (Compl. ¶ 38.) Lewis believes that the actions
of HPD and DOB are systematic and “racially motivated”
with the purpose of depriving Blacks, such as Lewis, of the
opportunity for home ownership. (Compl. ¶¶ 1, 17, 48.) Lewis
claims the City has taken his property without due process
and just compensation and has imposed excessive fines. He
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seeks payment of $1,000,000 to cover the costs of restoring
the Property's façade and for damages. (Compl. ¶ 56.)
PROCEDURAL BACKGROUND
Lewis filed the Complaint on March 27, 2024. (Dkt. 1.)
Since then, he has not participated in the action other than
consenting on or about April 16, 2024, to the City's request for
an extension of time to respond to the Complaint. (See Dkt.
8.) On April 12, 2024, the Court issued an order scheduling
an initial pretrial conference to take place by telephone on
June 11, 2024. (Dkt. 7.) Lewis did not appear. (See minute
entry dated June 11, 2024.) The City filed the instant motion
to dismiss on June 17, 2024 (Dkt. 17), accompanied by the
Kendrick Declaration and a memorandum of law (Dkts. 18,
19). The Court stayed discovery pending determination of the
motion. (Dkt. 16.)
The Court's scheduling order for the motion to dismiss
required that Plaintiff file any opposition by July 29, 2024.
(Dkt. 16.) Plaintiff did not do so. On September 3, 2024, the
Court issued an order sua sponte extending Plaintiff's time
to oppose the motion until September 30, 2024. (Dkt. 22.)
The order warned Plaintiff of the consequences of failing to
file any opposition by that date. (Id.) Again, Plaintiff filed no
opposition. On October 28, 2024, the Court sua sponte gave
Plaintiff a final opportunity to file an opposition no later than
November 18, 2024, and warned that “[i]f Plaintiff does not
file any opposition by November 18, 2024, the Court will
deem the motion fully submitted and resolve the motion based
on the record as it stands. Additionally, Plaintiff's failure to
submit any opposition may be grounds alone for granting
the motion and dismissing Plaintiff's case due to Plaintiff's
failure to prosecute.” (Dkt. 23.) Again, Plaintiff did not file
any opposition.
The docket shows that Plaintiff was served with all orders
at the address he provided and which remains his address of
record. The motion to dismiss has been *299 referred to me
for a report and recommendation. (Dkt. 20.)
LEGAL STANDARDS
A. Motion To Dismiss For Lack Of Subject Matter
Jurisdiction
[2] [3] [4] [5] A court must dismiss a claim if it
“lacks the statutory or constitutional power to adjudicate
it.” Morrison v. National Australia Bank Ltd., 547 F.3d
167, 170 (2d Cir. 2008) (internal quotation marks omitted),
aff'd, 561 U.S. 247, 130 S. Ct. 2869, 177 L.Ed.2d 535
(2010). “The plaintiff bears the burden of proving subject
matter jurisdiction by a preponderance of the evidence.”
Aurecchione v. Schoolman Transportation System, Inc., 426
F.3d 635, 638 (2d Cir. 2005). In deciding a Rule 12(b)(1)
motion to dismiss for lack of subject matter jurisdiction, the
Court “must take all facts alleged in the complaint as true
and draw all reasonable inferences in favor of plaintiff.”
Morrison, 547 F.3d at 170 (internal quotation marks omitted)
(quoting Natural Resources Defense Council v. Johnson, 461
F.3d 164, 171 (2d Cir. 2006)). The Court, however, “may
consider affidavits and other materials beyond the pleadings
to resolve the jurisdictional issue.” J.S. ex rel. N.S. v. Attica
Central Schools, 386 F.3d 107, 110 (2d Cir. 2004); see also
Makarova v. United States, 201 F.3d 110, 113 (2d Cir. 2000)
(“In resolving a motion to dismiss for lack of subject matter
jurisdiction under Rule 12(b)(1), a district court ... may refer
to evidence outside the pleadings”).
B. Motion To Dismiss For Failure To State A Claim
Under Federal Rule of Civil Procedure 12(b)(6), a pleading
may be dismissed for “failure to state a claim upon which
relief can be granted.” Fed. R. Civ. P. 12(b)(6) (“Rule 12(b)
(6)”). To survive a Rule 12(b)(6) motion, a complaint must
plead “enough facts to state a claim to relief that is plausible
on its face.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544,
570, 127 S. Ct. 1955, 1974, 167 L.Ed.2d 929 (2007). A claim
is facially plausible when the factual content pleaded allows
a court “to draw the reasonable inference that the defendant is
liable for the misconduct alleged.” Ashcroft v. Iqbal, 556 U.S.
662, 678, 129 S. Ct. 1937, 1949, 173 L.Ed.2d 868 (2009).
[6] [7] [8] “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. (quoting Twombly, 550 U.S. at 557, 127
S.Ct. 1955). In considering a motion to dismiss, a district
court “accept[s] all factual claims in the complaint as true,
and draw[s] all reasonable inferences in the plaintiff's favor.”
Lotes Co. v. Hon Hai Precision Industry Co., 753 F.3d 395,
403 (2d Cir. 2014). However, this tenet is “inapplicable to
legal conclusions. Threadbare recitals of the elements of a
cause of action, supported by mere conclusory statements, do
not suffice.” Iqbal, 556 U.S. at 678, 129 S.Ct. 1937. “[R]ather,
the complaint's factual allegations must be enough to raise
a right to relief above the speculative level ... i.e., enough
to make the claim plausible.” Arista Records, LLC v. Doe 3,
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604 F.3d 110, 120 (2d Cir. 2010) (internal quotation marks,
emphasis, and brackets omitted) (quoting Twombly, 550 U.S.
at 555, 127 S.Ct. 1955). A complaint is properly dismissed
where, as a matter of law, “the allegations in [the] complaint,
however true, could not raise a claim of entitlement to relief.”
Twombly, 550 U.S. at 558, 127 S.Ct. 1955.
[9] [10] For the purposes of considering a motion to dismiss
pursuant to Rule 12(b)(6), a court generally is confined
to the facts alleged in the complaint. See *300 Cortec
Industries v. Sum Holding L.P., 949 F.2d 42, 47 (2d Cir.
1991). A court may, however, consider additional materials,
including documents attached to the complaint, documents
incorporated into the complaint by reference, public records,
and documents that the plaintiff either possessed or knew
about, and relied upon, in bringing the suit. See Kleinman v.
Elan Corp., 706 F.3d 145, 152 (2d Cir. 2013) (citing ATSI
Communications, Inc. v. Shaar Fund, Ltd., 493 F.3d 87, 98
(2d Cir. 2007)). In that regard, if “a document relied on in
the complaint contradicts allegations in the complaint, the
document, not the allegations, control, and the court need not
accept the allegations in the complaint as true.” Poindexter v.
EMI Record Group Inc., No. 11-CV-559, 2012 WL 1027639,
at *2 (S.D.N.Y. March 27, 2012) (citing Barnum v. Millbrook
Care Ltd. Partnership, 850 F. Supp. 1227, 1232-33 (S.D.N.Y.
1994)).
C. Legal Standards For Section 1983 Claims
[11] [12] [13] [14] To state a cause of action under §
1983, “a plaintiff must allege that some person acting under
color of state law deprived him of a federal right.” Ahlers
v. Rabinowitz, 684 F.3d 53, 60-61 (2d Cir. 2012) (internal
quotation marks omitted) (quoting Washington v. James, 782
F.2d 1134, 1138 (2d Cir. 1986)). Because § 1983 does not
provide its own substantive right, plaintiffs must identify
the federally protected right that was allegedly violated. See
Gonzaga University v. Doe, 536 U.S. 273, 285, 122 S. Ct.
2268, 2276, 153 L.Ed.2d 309 (2002) (plaintiffs cannot simply
claim a violation of § 1983, because § 1983 “by itself does
not protect anyone against anything”) (internal quotation
marks omitted) (quoting Chapman v. Houston Welfare Rights
Organization, 441 U.S. 600, 617, 99 S. Ct. 1905, 1916, 60
L.Ed.2d 508 (1979)). Accordingly, a plaintiff must show that
(1) the defendant acted under color of state law and that (2)
as a result of the defendant's actions, the plaintiff suffered
a denial of federal statutory rights or constitutional rights or
privileges. Annis v. County of Westchester, 136 F.3d 239, 245
(2d Cir. 1998). Additionally, “in all § 1983 cases, the plaintiff
must prove that the defendant's action was a proximate cause
of the plaintiff's injury.” Gierlinger v. Gleason, 160 F.3d 858,
872 (2d Cir. 1998); see also White v. City of New York, No. 16-
CV-6183, 2017 WL 3575700, at *5 (S.D.N.Y. Aug. 17, 2017).
D. Review Of Pro Se Pleadings
[15] [16] “Pro se complaints ‘must be construed liberally
and interpreted to raise the strongest arguments that they
suggest.’ ” Sykes v. Bank of America, 723 F.3d 399, 403 (2d
Cir. 2013) (quoting Triestman v. Federal Bureau of Prisons,
470 F.3d 471, 474 (2d Cir. 2006)). “[T]he Second Circuit, as
a general matter, is solicitous of pro se litigants, enforcing
standards of procedural leniency rather than holding them
to the rigidities of federal practice.” Massie v. Metropolitan
Museum of Art, 651 F. Supp.2d 88, 93 (S.D.N.Y. 2009); see
also Weixel v. Board of Education, 287 F.3d 138, 147-48
(2d Cir. 2002) (reversing dismissal where district court failed
to construe pro se plaintiff's complaint liberally); Ortiz v.
Cornetta, 867 F.2d 146, 148 (2d Cir. 1989) (“Once a pro se
litigant has done everything possible to bring his action, he
should not be penalized by strict rules which might otherwise
apply if he were represented by counsel”).
[17] [18] That said, “even pro se plaintiffs cannot withstand
a motion to dismiss unless their pleadings contain factual
allegations sufficient to raise a ‘right to relief above the
speculative level,’ ” *301 Martinez v. Ravikumar, 536 F.
Supp.2d 369, 370 (S.D.N.Y. 2008) (quoting Twombly, 550
U.S. at 555, 127 S.Ct. 1955), and must allege “enough facts
to state a claim to relief that is plausible on its face.” Perry
v. Mary Ann Liebert, Inc., 765 F. App'x 470, 473 (2d Cir.
2019) (internal quotation marks omitted) (quoting Twombly,
550 U.S. at 570, 127 S.Ct. 1955). And, “[n]otwithstanding
the liberal pleading standards afforded pro se litigants, federal
courts are courts of limited jurisdiction and may not preside
over cases if they lack subject matter jurisdiction.” Torres
v. Blackstone Group, No. 18-CV-6434, 2019 WL 4194496,
at *2 (S.D.N.Y. Sept. 3, 2019) (internal quotation marks
omitted), aff'd, 836 F. App'x 49 (2d Cir. 2020).
DISCUSSION
[19] [20] [21] The City argues that the Complaint should
be dismissed for two principal reasons. First, the City asserts
that the Court lacks subject matter jurisdiction because
Lewis's claims boil down to an administrative challenge to
the allegedly irrational actions of the DOB and HPD and
therefore may be pursued only by an “Article 78 proceeding”
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pursuant to New York State law. Second, the City contends
that Lewis fails to state a claim for an unconstitutional taking,
deprivation of due process, or excessive fines. The Court
agrees. 2
I. Lack Of Subject Matter Jurisdiction
Lewis's claims are grounded in the allegation that DOB
and HPD acted irrationally and intentionally to demolish
the front façade of the Property and impose unnecessary
and excessive fines and charges. The Complaint does not
challenge any particular rule or regulation as unconstitutional.
Instead, Lewis alleges the administrative agencies’ actions,
as applied to Lewis, *302 were arbitrary and unauthorized.
Those “as applied” claims are properly brought in an Article
78 proceeding pursuant to New York's Civil Practice Law
and Rules. In such circumstances, the Court may, and in this
instance should, dismiss the claims for lack of subject matter
jurisdiction.
[22] [23] Article 78 has been described as “an amalgam
of the common law writs of certiorari to review, mandamus,
and prohibition,” which “provides both a hearing and a means
of redress for petitioners ... who seek to challenge municipal
decisions.” Reyes v. Erickson, 238 F. Supp.2d 632, 635-36
(S.D.N.Y. 2003); accord Hellenic American Neighborhood
Action Committee v. City of New York, 101 F.3d 877, 881
(2d Cir. 1996). “A petitioner in an Article 78 proceeding is
permitted to submit affidavits and other written proof of their
claim, and where a triable issue of fact is raised, the petitioner
may obtain a trial.” Hellenic American, 101 F.3d at 881
(ellipses and brackets omitted) (quoting Moccio v. New York
State Office of Court Administration, 95 F.3d 195, 202 (2d Cir.
1996)). Courts hearing Article 78 proceedings “are courts of
limited jurisdiction and may not hear a general constitutional
challenge to a law or regulation.” Jones-Bey v. Stanislov, No.
23-CV-5599, 2024 WL 3520636, at *4 (S.D.N.Y. July 23,
2024). They may, however, “entertain claims [like Plaintiff's]
that the application of a rule is unconstitutional.” Id. (brackets
in original); see also Building Industry Electrical Contractors
Association v. City of New York, No. 10-CV-8002, 2011 WL
3427138, at *14 (S.D.N.Y. Aug. 5, 2011), aff'd, 678 F.3d
184 (2d Cir. 2012). Courts thus “have repeatedly held that
claims ‘fundamentally premised’ on the contention that an
administrative determination was ‘wrongful’ must be brought
under Article 78.” Jones-Bey, 2024 WL 3520636, at *3
(citation omitted).
[24] [25] That is the scenario presented here. “To determine
whether Article 78 applies to a given dispute, a reviewing
court must ‘examine the substance of the action to identify
the relationship out of which the claim arises and the
relief sought.’ ” Id. (quoting Building Industry Electrical
Contractors, 2011 WL 3427138, at *14). As set forth
above, Lewis challenges the actions of two New York
City administrative departments – DOB and HPD. Lewis
claims the actions taken and fines and charges imposed
were “unjustified,” “irrational,” “excessive,” “foolish and
nonsensical,” and in “bad faith.” (Compl. ¶¶ 29, 31, 36,
40, 44.) Those are precisely some of the grounds for which
an Article 78 proceeding is provided. See, e.g., NY CPLR
7803(3) (stating that Article 78 proceedings address claims
“whether a determination was made in violation of lawful
procedure, was affected by an error of law or was arbitrary
and capricious or an abuse of discretion, including abuse of
discretion as to the measure or mode of penalty or discipline
imposed”).
Whether federal courts can exercise jurisdiction over a claim
that may be properly brought as an Article 78 petition is
a question that the Second Circuit has not answered. See
Carver v. Nassau County Interim Finance Authority, 730 F.3d
150, 155 (2d Cir. 2013) (“We need not decide, however,
whether Article 78 can, on its own, deprive a federal court of
jurisdiction over claims brought under that provision, as some
district court cases have held”). “District courts in this circuit
are split on the issue of whether they can (or should) exercise
jurisdiction over Article 78 claims. Some district courts have
concluded that they have no jurisdiction over Article 78
petitions. Others have not gone so far but have declined to
exercise supplemental jurisdiction over Article 78 claims as a
matter of discretion. On the other hand, some district courts
have exercised supplemental *303 jurisdiction over Article
78 claims where the court otherwise had federal jurisdiction
over other claims raised.” Garofalo v. City of New York, No.
22-CV-7620, 2023 WL 3792514, at *5 (E.D.N.Y. June 2,
2023) (citations omitted) (collecting cases); see Jones-Bey,
2024 WL 3520636, at *4 (dismissing plaintiff's claims for
denial of press pass by New York City's Mayor's Office
and “join[ing] a number of other district courts that have
dismissed cases brought in federal court that should have been
brought to State Supreme Court as an Article 78 proceeding”)
(internal quotation marks, citation, and brackets omitted).
Here, Lewis has asserted a claim pursuant to 42 U.S.C. §
1983 for violation of federal constitutional rights. If such
a claim is plausibly stated, the Court would have federal
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subject matter jurisdiction pursuant to 28 U.S.C. § 1331. See
Garofalo, 2023 WL 3792514, at *2 (finding that plaintiff
“established federal question jurisdiction in an obvious way”
by asserting violation of Second and Fourteenth Amendments
under 42 U.S.C. § 1983). The Court then could consider
whether it should exercise supplemental jurisdiction over
Lewis's Article 78 claims pursuant to 28 U.S.C. § 1367. As
discussed next, however, Lewis has not plausibly stated a
claim for a constitutional violation under 42 U.S.C. § 1983.
The Court thus has no federal subject matter jurisdiction for
which supplemental jurisdiction could or should be exercised.
II. Failure To State A Claim
Lewis advances three constitutional claims under 42 U.S.C.
§ 1983: 3 (1) a taking without compensation in violation
of the Fifth Amendment; (2) deprivation of due process in
violation of the Fourteenth Amendment; and (3) imposition
of excessive fines in violation of the Eighth Amendment
(although the Complaint does not expressly invoke the Eighth
Amendment). The well-pled allegations of the Complaint,
however, do not plausibly state a claim under any of those
theories.
A. No Takings Claim
[26] The Fifth Amendment, made applicable to the States
under the Fourteenth Amendment, prohibits the government
from taking “private property for public use without just
compensation.” Palazzolo v. Rhode Island, 533 U.S. 606, 617,
121 S. Ct. 2448, 2457, 150 L.Ed.2d 592 (2001). Lewis claims
that the City violated the takings clause, stating that “DOB
and HPD ... have engaged in a taking without due process of
law by demolishing the front façade of [the Property],” and
that “unjustified fines” and the cost of demolition charged
to Lewis also constitute a taking. 4 (Compl. ¶¶ 49, 50.) The
Complaint's allegations do not plausibly state a takings claim.
[27] [28] The Supreme Court has recognized two types
of takings – physical and regulatory. See *304 Buffalo
Teachers Federation v. Tobe, 464 F.3d 362, 374 (2d Cir.
2006) (collecting cases). A physical taking “occur[s] when
the government physically takes possession of an interest
in property for some public purpose.” Id. (citation omitted).
Plaintiff here does not allege that the City has physically taken
the Property for a public purpose, and therefore does not state
a claim for a physical taking.
[29] [30] [31] [32] By contrast, “[g]overnment action
that does not entail a physical occupation, but merely affects
the use and value of private property” is considered under the
framework of regulatory takings, which can be categorical
or non-categorical. Elmsford Apartment Associates, LLC v.
Cuomo, 469 F. Supp.3d 148, 162-63 (S.D.N.Y. 2020). “A
categorical regulatory taking occurs in ‘the extraordinary
circumstance when no productive or economically beneficial
use of land is permitted.’ ” Id. at 164 (quoting Tahoe-
Sierra Preservation Council, Inc. v. Tahoe Regional Planning
Agency, 535 U.S. 302, 330, 122 S. Ct. 1465, 1483, 152
L.Ed.2d 517 (2002)). “Anything less than a complete
elimination of value, or a total loss, is a non-categorical
taking, which is analyzed under the framework established in
Penn Central Transportation Co. v. New York City.” Id. at 165
(referring to the Supreme Court's decision in Penn Central
Transportation Co. v. City of New York, 438 U.S. 104, 98
S. Ct. 2646, 57 L.Ed.2d 631 (1978)). Courts “weigh three
factors to determine whether the interference with property
rises to the level of a [non-categorical regulatory] taking: ‘(1)
the economic impact of the regulation on the claimant; (2)
the extent to which the regulation has interfered with distinct
investment-backed expectations; and (3) the character of the
governmental action.’ ” Buffalo Teachers Federation, 464
F.3d at 375 (quoting Connolly v. Pension Benefit Guaranty
Corp., 475 U.S. 211, 225, 106 S. Ct. 1018, 1026, 89 L.Ed.2d
166 (1986)). The consideration of these factors aims to
“identify regulatory actions that are functionally equivalent to
the classic taking in which government directly appropriates
private property or ousts the owner from his domain.” Lingle
v. Chevron U.S.A. Inc., 544 U.S. 528, 539, 125 S. Ct. 2074,
2082, 161 L.Ed.2d 876 (2005).
[33] The Complaint fails to plausibly allege a regulatory
taking claim. Lewis does not allege that the demolition of
the façade, the fines imposed for violations, or the repair
charge liens have “completely deprive[d]” Lewis “of all
economically beneficial use of [his] property.” Lingle, 544
U.S. at 538, 125 S.Ct. 2074 (internal quotation marks and
citation omitted). (See, e.g., Compl. ¶¶ 52, 53.) The Complaint
speculates that HPD and DOB's actions were “intended to
work a forfeiture of Lewis’ equity in [the] Property.” (Compl.
¶ 31.) That assertion is purely speculative and, in any event,
does not allege that Lewis has in fact forfeited all of his equity
in the Property or that he cannot make use of the Property
despite demolition of the front façade.
[34] [35] Similarly, Lewis fails to state a non-categorical
taking under the Penn Central factors. Lewis does not
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quantify or characterize with any specificity the overall
economic impact that any of the City's administrative actions
at the Property have had on him. Nor does he allege that the
City's actions have interfered with any distinct investment-
backed expectations – indeed, Lewis “does not allege that he
invested time or money in the Property,” Vanderveer v. Zoning
Board of Appeals, No. 19-CV-3833, 2020 WL 7042669, at
*4 (E.D.N.Y. Dec. 1, 2020), aff'd, 2021 WL 3745741 (2d Cir.
Aug. 25, 2021), although he does allege generally that his
parents *305 purchased the Property “in a wrecked state”
many years ago. 5 (Compl. ¶ 7.)
[36] As for the third factor, the Supreme Court has stated that
a taking “may more readily be found when the interference
with property can be characterized as a physical invasion by
government than when interference arises from some public
program adjusting the benefits and burdens of economic
life to promote the common good.” Penn Central, 438 U.S.
at 124, 98 S.Ct. 2646 (citation omitted). Demolition of
the front façade of the Property is a physical invasion of
sorts. However, “a municipal demolition of an imminently
dangerous structure in order to protect the public is an
exercise of the police power and does not constitute a ‘taking.’
” Wantanabe Realty Corp. v. City of New York, 315 F. Supp.2d
375, 401 (S.D.N.Y. 2003) (citation omitted). As noted by
Plaintiff, “[t]here came a time that the façade [at the subject
property] deteriorated and a piece fell to the ground.” (Compl.
¶ 13.) Emergency declarations followed. (Kendrick Decl. Ex.
1.) The City's actions, taken to remediate conditions posing an
immediate danger to the public, do not constitute a taking. 6
Wantanabe Realty, 315 F. Supp.2d at 401.
While Lewis also alleges that “excessive fining” constituted
an unconstitutional taking, “the mere imposition of
an obligation to pay money does not constitute an
unconstitutional taking of property” under the Fifth
Amendment. Dubin v. County of Nassau, No. 16-CV-4209,
2024 U.S. Dist. LEXIS 34707 at *31 (E.D.N.Y. Feb. 28,
2024) (quoting Commonwealth Edison Co. v. United States,
271 F.3d 1327, 1339-40 (Fed. Cir. 2001)); see also Moorer
v. U.S. Bank N.A., No. 3:17-CV-56, 2018 WL 587319, at *7
(D. Conn. Jan. 29, 2018) (“The Supreme Court, however, has
never held that the Takings Clause applies to the creation of
an ordinary liability to pay money”) (internal quotation marks
omitted). As noted in Moorer, while “the Second Circuit has
yet to confront the issue, other Circuit Courts consistently
have followed the conclusion reached by the majority of
the Justices in Eastern [Enterprises] – ‘that an obligation
to pay [undifferentiated, fungible] money cannot constitute
a taking.’ ” Moorer, 2018 WL 587319, at *7 (brackets in
original) (quoting West Virginia CWP Fund v. Stacy, 671 F.3d
378, 386-87 (4th Cir. 2011)).
Therefore, the Complaint fails to state a takings claim related
to any of the challenged *306 City actions with respect to
the Property.
B. No Due Process Claim
[37] [38] [39] Lewis alleges that the City denied him
“substantive and procedural due process” when it demolished
the façade of the Property, and then charged Lewis for the
demolition work. (See Compl. ¶¶ 29, 30, 36, 46, 49, 50,
52.) The essential principle of the constitutional right to
procedural due process is that a deprivation of life, liberty, or
property be preceded by notice and an opportunity to be heard.
See Parratt v. Taylor, 451 U.S. 527, 538, 101 S. Ct. 1908,
1914, 68 L.Ed.2d 420 (1981). But in certain circumstances
– such as the exigent circumstances here, where part of a
building was literally falling to the ground and endangering
the public – due process does not require a pre-deprivation
opportunity to be heard so long as there is sufficient post-
deprivation process. See Catanzaro v. Weiden, 188 F.3d 56,
63-64 (2d Cir. 1999) (holding that a pre-deprivation hearing
was unnecessary before demolition of damaged building
that public official reasonably believed to be an immediate
danger to the public); see also Kshel Realty Corp. v. City of
New York, No. 01-CV-9039, 2006 WL 2506389, at *1, *8
(S.D.N.Y. Aug. 30, 2006) (recognizing emergency exception
to requirement for pre-deprivation process where the City
demolished entire building due to falling façade), aff'd, 293
F. App'x 13 (2d Cir. 2008); Rohde v. City of New York, No.
99-CV-8714, 2000 WL 1372835, at *3 (S.D.N.Y. Sept. 25,
2000) (dismissing complaint alleging violation of due process
by City for demolishing building whose façade collapsed, and
stating, “[t]he Second Circuit has held that demolition of a
building, without a prior hearing, for the purpose of dealing
with an emergency does not give rise to a [due process] claim
as long as there is a ‘post deprivation remedy’ ”) (quoting
Catanzaro, 188 F.3d at 62).
An Article 78 proceeding is just such a post-deprivation
remedy. As explained above, Lewis could have brought
an Article 78 proceeding to challenge all of DOB and
HPD's actions about which he complains. Indeed, the Second
Circuit has “held on numerous occasions that an Article 78
proceeding is a perfectly adequate postdeprivation remedy”
in instances where, as here, the plaintiff claims wrongful
application of rules and regulations by City agencies rather
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than facial invalidity of the rules and regulations. Hellenic
American Neighborhood Action Committee, 101 F.3d at 881
(collecting cases). Lewis thus has no claim for deprivation of
procedural due process. 7
*307 [40] [41] Lewis's claim for violation of substantive
due process also fails. “[T]o establish a violation of a right
to substantive due process, a plaintiff must demonstrate not
only government action but also that the government action
was ‘so egregious, so outrageous, that it may fairly be said to
shock the contemporary conscience.’ ” Pena v. DePrisco, 432
F.3d 98, 112 (2d Cir. 2005) (quoting County of Sacramento
v. Lewis, 523 U.S. 833, 847, 118 S. Ct. 1708, 1717 n.8, 140
L.Ed.2d 1043 (1998)). The Second Circuit has repeatedly
stated that “in order to shock the conscience and trigger a
violation of substantive due process, official conduct must be
outrageous and egregious under the circumstances; it must be
truly ‘brutal and offensive to human dignity.’ ” Lombardi v.
Whitman, 485 F.3d 73, 81 (2d Cir. 2007) (quoting Smith v.
Half Hollow Hills Central School District, 298 F.3d 168, 173
(2d Cir. 2002)).
[42] The Complaint does not allege facts to plausibly claim
that the actions of the City to demolish the façade of the
Property in an emergency situation and to bill Lewis the
charges incurred were in any way egregious or outrageous.
As admitted by Lewis, the subject property had deteriorated
to such an extent that a portion of the façade fell to
the ground. (Compl. ¶ 13.) Even the descriptors Lewis
invokes – “unjustified,” “irrational,” “excessive,” “foolish
and nonsensical,” and “bad faith” – fall well short. And,
although he raises the specter of racial discrimination, his
allegations in that respect are purely speculative and not
supported by any actual alleged facts. Thus, Lewis fails to
state a claim for violation of substantive due process.
C. No Excessive Fine Claim
[43] The Eighth Amendment prohibits the government
from imposing “excessive fines.” 8 U.S. Const. amend.
VIII. Although the Complaint does not mention the Eighth
Amendment, it repeatedly alludes broadly to “excessive
fines” imposed by the City. (See Compl. ¶¶ 29, 31, 44, 51, 54.)
The Complaint, however, fails to advance a plausible Eighth
Amendment claim.
[44] The Second Circuit has adopted a two-step inquiry to
decide “whether a financial penalty is excessive under the
Eighth Amendment.” United States v. Viloski, 814 F.3d 104,
108 (2d Cir. 2016). First, a court must consider whether the
payment or forfeiture at issue constitutes a “fine,” meaning
that it is punitive in nature and not “purely ‘remedial.’ ”
Id. at 109 (quoting United States v. Bajakajian, 524 U.S.
321, 331, 118 S. Ct. 2028, 2035, 141 L.Ed.2d 314 (1998)).
Second, a court must determine whether the fine is “grossly
disproportional” to the underlying offense. *308 Id. at 110
(quoting Bajakajian, 524 U.S. at 334, 118 S.Ct. 2028). The
Complaint does not plausibly allege both required elements
for any of the charges it references.
First, the HPD repair charge liens cannot constitute excessive
fines as they are a method to recover emergency demolition
expenses incurred by the City. See NYC Admin. Code §§
28-215.1.1 (addressing liens for emergency work), 27-2144
(addressing liens on premises). The approximate $485,000 to
which the Complaint refers constitutes the sum expended by
the City in contracting for demolition of the front façade of the
Property, along with associated fees and taxes. (See Compl. ¶
36; Kendrick Decl. Ex. 3.) The Complaint does not allege that
the amount charged by the City was not the actual cost (plus
interest) incurred by the City to remediate the deteriorating
façade. Because the HPD repair charge liens are “intended
not to punish the [property owner] but to compensate the
Government for a loss ... [they] fall outside the scope of
the Excessive Fines Clause.” Viloski, 814 F.3d at 109 (citing
Bajakajian, 524 U.S. at 329, 118 S.Ct. 2028).
[45] Second, the Complaint fails to plausibly allege that any
actual civil penalty or fine imposed based on conditions at the
Property were grossly disproportional. To determine whether
a civil penalty is grossly disproportionate, the Court considers
four factors: (1) the essence of the crime of the defendant
and its relation to other criminal activity, (2) whether the
defendant fits into the class of persons for whom the statute
was principally designed, (3) the maximum sentence and fine
that could have been imposed, and (4) the nature of the harm
caused by the defendant's conduct. Id. at 108.
Here, the Complaint does not address the amount
of any specific fine or penalty or why any such
amount is disproportionate. Instead, the Complaint alleges
merely that the violations and summonses issued at the
Property are “foolish and nonsensical” and “excessive and
irrational.” (Compl. ¶¶ 40, 43.) These “bare allegations are
inadequate to state a plausible claim that the ... penalties
are disproportionate to the gravity of the offenses they are
designed to punish, much less ‘grossly’ disproportionate.”
New York State Professional Process Servers Association v.
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City of New York, No. 14-CV-1266, 2014 WL 4160127, at *12
(S.D.N.Y. Aug. 18, 2014); see also Farina v. Metropolitan
Transportation Authority, 409 F. Supp.3d 173, 200 (S.D.N.Y.
2019) (“With no allegation as to the amount of fines
actually paid by [plaintiff], it is not possible to undertake
the four-factor analysis of whether his fines were ‘grossly
disproportional’ to the underlying offense and therefore a
plausible violation of the Eighth Amendment”). Further, the
Complaint alleges that “many of the bad faith violations were
dismissed by the Environmental Control Board for lack of
evidence.” (Compl. ¶ 43.) To the extent any of those violations
relate to the fines about which Lewis complains, there can
be no constitutionally excessive fine since “no fine has been
imposed.” Infinity Outdoor Inc. v. City of New York, 165 F.
Supp.2d 403, 431 (E.D.N.Y. 2001). The Complaint does not
assert facts demonstrating that any cited “fines” are grossly
disproportional to the alleged conduct.
Accordingly, the Complaint fails to assert a constitutional
claim for imposition of excessive fines.
CONCLUSION
For the reasons discussed above, I recommend that the motion
to dismiss be GRANTED and the complaint DISMISSED
without prejudice to Plaintiff's bringing an Article 78
proceeding in state court. Additionally, because Plaintiff is
pro *309 se and he has not yet had an opportunity to amend,
he should be granted leave to amend to plausibly assert a
claim for a constitutional violation pursuant to 28 U.S.C.
§ 1983. To the extent not addressed above, the Court has
considered the parties’ arguments and determined them to be
either moot or without merit.
DEADLINE TO OBJECT AND PRESERVE APPEAL
Pursuant to 28 U.S.C. § 636(b)(1) and Rules 72, 6(a), and 6(d)
of the Federal Rules of Civil Procedure, the parties shall have
fourteen (14) days to file written objections to this Report and
Recommendation. Any party shall have fourteen (14) days
to file a written response to the other party's objections. Any
such objections and responses shall be filed with the Clerk
of the Court, with courtesy copies delivered to the Chambers
of the Honorable Analisa Torres, United States Courthouse,
500 Pearl Street, New York, New York 10007, and to the
Chambers of the undersigned, at United States Courthouse,
500 Pearl Street, New York, New York 10007. Any request for
an extension of time for filing objections must be addressed to
Judge Torres. Failure to file timely objections will result in
a waiver of the right to object and will preclude appellate
review.
Dated: December 5, 2024
All Citations
762 F.Supp.3d 290
Footnotes
1 “The Court may take judicial notice of public records in deciding a motion to dismiss.” Manley v. Utzinger,
No. 10-CV-2210, 2011 WL 2947008, at *1 n.1 (S.D.N.Y. July 21, 2011) (citing Blue Tree Hotels Investment
(Canada), Ltd. v. Starwood Hotels & Resorts Worldwide, Inc., 369 F.3d 212, 217 (2d Cir. 2004); Scherer v.
Equitable Life Assurance Society, 347 F.3d 394, 402 (2d Cir. 2003)).
2 There is a potential additional basis for dismissal, although the Court does not rely on it in making its
recommendation. Specifically, Federal Rule of Civil Procedure 41(b) gives district courts the power to dismiss
a case if “the plaintiff fails to prosecute” the case, “to comply with [the Federal Rules of Civil Procedure],” or
to comply with court orders. Fed. R. Civ. P. 41(b). Rule 41(b) does not define “failure to prosecute,” but “[i]t
can evidence itself either in an action lying dormant with no significant activity to move it or in a pattern of
dilatory tactics.” Lyell Theatre Corp. v. Loews Corp., 682 F.2d 37, 42 (2d Cir. 1982). The “primary rationale”
for dismissal pursuant to Rule 41(b) is “the failure of plaintiff in his duty to process his case diligently.” Id.
at 43. Here, other than consenting in April 2024 to the City's request for an extension of time to respond
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to the Complaint, Lewis has not participated in the litigation for the last several months. He neither met
and conferred to formulate a case management plan and scheduling order nor submitted his own; he failed
to appear for the initial pretrial conference as ordered; and he did not file any response to the motion to
dismiss despite being afforded multiple sua sponte extensions and despite being warned that failure to file
any opposition could result in dismissal for failure to prosecute. The City has extensive litigation in both federal
and state courts and is prejudiced to some extent when cases languish. Similarly, this District is one of the
nation's busiest, and both it and litigants are burdened when the docket is clogged by cases that plaintiffs
have neglected. In contrast, Lewis will not be prejudiced to the extent his claims can be dismissed without
prejudice to refiling. And, no lesser sanction is likely to be effective given that Lewis has gone entirely silent.
See generally Spencer v. Doe, 139 F.3d 107, 112-13 (2d Cir. 1998) (articulating five factors to consider in
determining whether to dismiss for failure to prosecute: “[(i)] the duration of the plaintiff's failure to comply ...;
[(ii)] whether the plaintiff was on notice that failure to comply would result in dismissal; [(iii)] whether the
defendants are likely to be prejudiced by further delay in the proceedings; [(iv)] a balancing of the court's
interest in managing its docket with the plaintiff's interest in receiving a fair chance to be heard; and [(v)]
whether the judge has adequately considered a sanction less drastic than dismissal”); accord Ampudia v.
Lloyd, 531 F. App'x 32, 34 (2d Cir. 2013).
3 Lewis has plausibly alleged that the persons responsible for the actions about which he complains are state
actors to whom 42 U.S.C. § 1983 applies.
4 Lewis also suggests that the City intends to demolish the Property in its entirety, but his allegations in
that regard are speculative, conclusory, and not well pled. (See Compl. ¶¶ 24 (alleging that HPD has a
contract with an “unknown party” but alluding to the contract price charged for the partial demolition); 46
(generally referencing “the proposed demolition of [the] Property” without notice); 54 (again generally alleging
a “propos[al] to demolish” the Property without notice or engineering reports).) Lewis has not alleged that he
has been charged for demolition of the entire Property rather than only for the emergency demolition of the
front façade. Moreover, the Complaint does not request injunctive relief to prevent any future demolition.
5 Moreover, “[t]he purpose of the investment-backed expectation requirement is to limit recovery to owners
who could demonstrate that they bought their property in reliance on a state of affairs that did not include
the challenged regulatory regime.” Allen v. Cuomo, 100 F.3d 253, 262 (2d Cir. 1996) (internal quotation
marks and citation omitted). The Complaint does not include any allegations that Lewis – or his parents –
purchased the Property with the expectation that they could never be required to remediate a deteriorating
façade. To the contrary, Lewis concedes that his parents purchased the Property when it was already in a
state of disrepair. (Compl. ¶ 7.)
6 The Complaint does challenges whether there was in fact an emergency posing imminent danger to the
public. In particular, the Complaint alleges that the “public was protected from any danger” by a sidewalk
shed erected by the City. (Compl. ¶ 20.) Cf. Libbey v. Village of Atlantic Beach, 982 F. Supp.2d 185, 196, 211
(E.D.N.Y. 2013) (denying motion to dismiss takings claim where building was in disrepair but not necessarily
imminently dangerous because another court had issued an order requiring installation of fence to secure
the area and found that the defendant village had violated that order). But a shed would only be a temporary
measure preceding actual remediation of the façade. Put another way, the erection of a sidewalk shed would
not obviate the need to remediate a façade that Lewis concedes was deteriorating and had already partly
fallen.
7 The City also notes that DOB and HPD did provide notice of the actions complained of, as well as
pre-deprivation administrative remedies, obviating the need to even consider post-deprivation remedies.
For instance, notice of proposed HPD repair charges prior to demolition work beginning was provided
through HPD's publicly-viewable Building Charge Report database. (Kendrick Decl. Exs. 1, 2.) See Trump
Presidential, Inc. v. New York City Department of Housing Preservation & Development, 170 A.D.3d 866,
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868, 96 N.Y.S.3d 248 (2d Dep't 2019) (“since HPD records its expenses in its building charge report that
is publicly available online ... the petitioner was on notice of the violations and charges on the property”).
After the demolition work, Lewis was notified of the finalized HPD repair charges on his quarterly property
tax statements, which are public records on the City's Department of Finance's website. (See Kendrick Decl.
Ex. 3.)
Pursuant to Sections 27-2129 and 27-2146 of the New York City Administrative Code and Section 17-03(g)
of Chapter 17 of Title 28 of the Rules of the City of New York, an owner can challenge the imposition of repair
charges to HPD by the due and payable date of those charges. See Shahid v. City of New York, 144 A.D.3d
1163, 1164, 43 N.Y.S.3d 393 (2d Dep't 2016) (noting the administrative remedy to challenge emergency
repair liens provided by Sections 27-2129 and 27-2146 of the New York City Administrative Code). The
quarterly tax statements listing HPD repair charges included a statement notifying Lewis of this procedure.
(See Kendrick Decl. Ex. 3 at ECF 4, 7, 13.) Once a property owner receives a final determination from
HPD on their written objection, if aggrieved, they may then bring an Article 78 proceeding to challenge that
determination as discussed above. Similar multi-step opportunities to contest the actions of City agencies
have been deemed sufficient due process. See, e.g., Nestle Waters North America, Inc. v. City of New York,
No. 15-CV-5189, 2016 WL 3080722, at *8-11 (S.D.N.Y. May 25, 2016) (dismissing claim and finding that
multiple levels of administrative agency and state court process, including Article 78 proceeding, to challenge
agency determinations was sufficient due process), aff'd, 689 F. App'x 87 (2d Cir. 2017).
8 The Supreme Court has held that the Fourteenth Amendment incorporates the Eighth Amendment's
prohibition against excessive fines and that it therefore applies to the states. See Timbs v. Indiana, 586 U.S.
146, 150, 139 S. Ct. 682, 687, 203 L.Ed.2d 11 (2019).
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Montague v. City of Rochester, Not Reported in Fed. Rptr. (2022)
© 2026 Thomson Reuters. No claim to original U.S. Government Works. 1
2022 WL 16558154
Only the Westlaw citation is currently available.
United States Court of Appeals, Second Circuit.
Colin B. MONTAGUE, Plaintiff-Appellant,
v.
CITY OF ROCHESTER, John Does, Unknown Officers
of the Town of Greece Police Department, John
Does, Unknown Officers of the Drug Enforcement
Agency, John Does, Unknown Officers of the City
of Rochester Police Department, Leon, City of
Rochester Police Department, Officer Padgham,
City of Rochester Police Department, Investigator
Sindoni, City of Rochester Police Department, Deputy
Lockwood, City of Rochester Police Department,
John Does, Unknown Officers of the Monroe
County Sherrif's Department, Defendants-Appellees,
Town of Greece, Rochester Police Department,
Greece Police Department, Monroe County Sheriff's
Department, Officer Shaun Moore, Town of Greece
Police Department, Agent Andrew Woeppel, Drug
Enforcement Agency, Investigator David Simpson, City
of Rochester Police Department, Sergeant Brinkerhoff,
City of Rochester Police Department, Other Officers
From Granet Known and Unknown, Lieutenant John
Henderson, Town of Greece Police Department,
Lieutenant Mark Sundquist, Town of Greece Police
Department, Sergeant Patrick Welch, Town of Greece
Police Department, Sergeant James Carris, Town of
Greece Police Department, Sergeant David Mancuso,
Town of Greece Police Department, Sergeant Brandon
White, Town of Greece Police Department, Officer
Keith Baer, Town of Greece Police Department, Officer
Edward Caton, Town of Greece Police Department,
Officer David D'aurelio, Town of Greece Police
Department, Investigator Pearce, City of Rochester Police
Department, the Drug Enforcement Agency, Defendants.
21-1598-pr
|
November 1, 2022
Appeal from a judgment of the United States District Court
for the Western District of New York (John L. Sinatra, Jr.,
Judge), entered on May 14, 2021.
UPON DUE CONSIDERATION, IT IS HEREBY
ORDERED, ADJUDGED, AND DECREED that the
judgment of the district court is AFFIRMED.
Attorneys and Law Firms
For Plaintiff-Appellant: Aaron M. Goldsmith, Law Office of
Aaron M. Goldsmith, P.C., New York, NY.
For Defendants-Appellees: No appearances.
Present: Barrington D. Parker, Susan L. Carney, William J.
Nardini, Circuit Judges.
SUMMARY ORDER
*1 Plaintiff-Appellant Colin B. Montague appeals from the
district court's dismissal of his suit under 28 U.S.C. § 1915A.
Montague, pro se, sued the City of Rochester, the Town of
Greece, the police departments of Rochester and Greece, the
Monroe County Sheriff's Department, the Drug Enforcement
Administration, and several individual officers, named and
unnamed, of the police and sheriff's departments and the
DEA. 1 He sought relief under 42 U.S.C. § 1983 and Bivens
v. Six Unknown Named Agents, 403 U.S. 388, 398 (1971),
alleging Fourth, Fifth, and Fourteenth Amendment violations
arising from alleged police harassment and false arrest. On
November 10, 2020, the district court dismissed Montague's
claims as barred by the applicable statutes of limitations and
sovereign immunity. On February 22, 2021, Montague filed
an amended complaint, which the district court dismissed
on May 4, 2021. Montague moved for reconsideration under
Federal Rules of Civil Procedure 59(e) or 60, which the court
denied on May 14, 2021. Montague, no longer pro se, now
appeals the district court's May 14, 2021, order. We assume
the parties’ familiarity with the case.
We review a district court's denial of a motion to alter
or amend judgement under Rule 59(e) or for relief from
judgment under Rule 60 for abuse of discretion. Empresa
Cubana del Tabaco v. Culbro Corp., 541 F.3d 476, 478 (2d
Cir. 2008). Because Montague's motion for reconsideration
merely reprised arguments already considered and rejected by
the district court, he failed to identify “controlling decisions or
data that the court overlooked” and the district court properly
denied his motion. Shrader v. CSX Transp., Inc., 70 F.3d 255,
257 (2d Cir. 1995).
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For completeness’ sake, we also consider the underlying
decision of the district court dismissing Montague's claims
as untimely. We review a district court's sua sponte dismissal
of a complaint under § 1915A or § 1915(e)(2) de novo.
Zaleski v. Burns, 606 F.3d 51, 52 (2d Cir. 2010); McEachin v.
McGuinnis, 357 F.3d 197, 200 (2d Cir. 2004). As Montague
concedes, his claims fell outside the statutes of limitations.
“The statute of limitations for Bivens claims is governed by
the statute of limitations for New York state law personal
injury claims not sounding in intentional tort,” which is three
years. Gonzalez v. Hasty, 802 F.3d 212, 219–20 (2d Cir.
2015) (internal quotation marks omitted); New York Civil
Practice Law and Rules § 214(5). A Bivens claim accrues
under federal law when a plaintiff “has knowledge of his or
her claim or has enough information that a reasonable person
would investigate and discover the existence of a claim.”
Gonzalez, 802 F.3d at 220. Section 1983 actions filed in New
York are also subject to a three-year statute of limitations.
Hogan v. Fischer, 738 F.3d 509, 517 (2d Cir. 2013). The
events Montague describes in his complaint—the allegedly
unlawful stops and searches and his arrest and indictment—
occurred in 2012, and the grand jury dismissed his original
state indictment on May 20, 2013, more than seven years
before he filed his first complaint, on June 11, 2020.
*2 Montague argues that his claims should be subject to
equitable tolling, which allows a court to extend a statute
of limitations to avoid injustice in “rare and exceptional
circumstances in which a party is prevented in some
extraordinary way from exercising his rights.” Zerilli–
Edelglass v. N.Y. City Transit Auth., 333 F.3d 74, 80 (2d
Cir. 2003) (cleaned up). The relevant question is “whether
a reasonable plaintiff in the circumstances would have been
aware of the existence of a cause of action.” Veltri v. Bldg.
Serv. 32B–J Pension Fund, 393 F.3d 318, 323 (2d Cir. 2004).
Montague argues that a confluence of events meant he could
not reasonably have discovered he was harmed until 2018.
First, he states that he was never notified by his attorney
that the grand jury had dismissed the charges against him;
he became aware of this fact only in 2018 when, during his
(unrelated) federal criminal trial, he asked his attorney to
determine the status of the earlier state charges. Second, he
emphasizes that he has been in federal prison since 2014.
Third, he notes that he was told, in May 2013, by the
attorney representing him in connection with the state charges
that the DEA was holding his possessions “pending further
investigation.” App'x 36.
None of these facts amounts to “extraordinary”
circumstances, Zerilli–Edelglass, 333 F.3d at 80, or
demonstrates that Montague exercised “all due diligence” in
pursuing his claims. Valdez ex rel. Donely v. United States,
518 F.3d 173, 182 (2d Cir. 2008) (internal quotation marks
omitted). The lack of a notification that the charges had
been dismissed would not have prevented Montague from
inquiring about them before 2018. Montague was aware of his
allegedly false arrest as soon as it happened, and he provides
no reason why he could not have challenged it at the time.
See Zerilli–Edelglass, 333 F.3d at 80. Nor is Montague's
status as a prisoner a “rare and exceptional circumstance[ ]”
that prevented him from filing a petition either before or
after his incarceration. Zerilli–Edelglass, 333 F.3d at 80;
see also Walker v. Jastremski, 430 F.3d 560, 564 (2d Cir.
2005) (prisoner not entitled to equitable tolling of statute
of limitations for § 1983 claim); Hizbullahankhamon v.
Walker, 255 F.3d 65, 75 (2d Cir. 2001) (solitary confinement
insufficient to toll statute of limitations where prisoner had
other opportunities to file). Montague also points to cases
tolling the statute of limitations where law enforcement
officers intentionally prevented a complainant from filing his
claim but provides no evidence that any of the defendants
did so in his case. Montague is thus not entitled to equitable
tolling, and the district court properly dismissed his complaint
as untimely.
* * *
The judgment of the district court is AFFIRMED.
All Citations
Not Reported in Fed. Rptr., 2022 WL 16558154
Footnotes
1 Montague does not appeal the dismissal of his claim against the DEA.
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Moran v. County of Suffolk, Not Reported in F.Supp.3d (2015)
© 2026 Thomson Reuters. No claim to original U.S. Government Works. 1
KeyCite Yellow Flag
Distinguished by Villalobos v. Smith, S.D.N.Y., July 12, 2022
2015 WL 1321685
Only the Westlaw citation is currently available.
United States District Court,
E.D. New York.
Michael MORAN, Plaintiff,
v.
COUNTY OF SUFFOLK and John
Doe, the person intended to be the police
officer who shot plaintiff, Defendants.
No. 11 Civ. 3704(PKC)(GRB).
|
Signed March 24, 2015.
Attorneys and Law Firms
Michael Caliguiri, Ralph G. Bell, Bauman & Kunkis, New
York, NY, for Plaintiff.
Arlene S. Zwilling, Hauppauge, NY, for Defendants.
MEMORANDUM AND ORDER
PAMELA K. CHEN, District Judge.
*1 Plaintiff Michael Moran (“Plaintiff”) initiated this
proceeding against defendants County of Suffolk (the
“County”) and a John Doe police officer under 42 U.S.C.
§ 1983 alleging that the use of unreasonable deadly force
against him violated his rights under, inter alia, the Fourth
Amendment of the United States Constitution. (Dkt. 1
(“Complaint” or “Compl.”).) Plaintiff also asserts claims
under state law and common law, including claims for assault
and battery and negligence. Presently before the Court is the
County's motion for summary judgment. For the reasons set
forth below, the County's motion is granted and the case is
dismissed.
BACKGROUND
I. Factual Background
Unless otherwise stated, the following facts are taken from
Plaintiff's Rule 56.1 Statement (Dkt. 23 (“Pl.St.”)), and all
reasonable inferences are drawn in Plaintiff's favor as the non-
moving party. 1 See Terry v. Ashcroft, 336 F.3d 128, 137 (2d
Cir.2003).
On August 4, 2010, at around 4:00 p.m., Plaintiff was waiting
for his girlfriend outside a Dunkin Donuts located in West
Babylon, New York. (Pl.St.¶ 3.) Plaintiff was sitting on a
bench and had with him a black fabric backpack containing
his laundry. (Id. ¶ 5.) Plaintiff observed two police cars enter
the Dunkin Donuts parking lot. (Id.¶ 4.) After a few moments,
Plaintiff picked up his backpack and walked to the entrance
of the Dunkin Donuts. (Id. ¶ 5.) From outside, Plaintiff saw
his girlfriend in handcuffs and struggling with police officers.
(Id. ¶ 6; Dkt. 21 (Declaration of Ralph G. Bell, dated Mar. 17,
2014 (“Bell Decl.”)) Ex. A at 150–51, 154.)
Suffolk County Police Officers Robert Bodenmiller
(“Bodenmiller”), Jennifer Price (“Price”), and Charles
Erdmann (“Erdmann”) had gone to the Dunkin Donuts in
response to a call about an emotionally disturbed woman
in the vicinity. (Pl. St. ¶¶ 8, 11, 24; see, e.g., Bell Decl.
Ex. B at 15–18.) Officers Bodenmiller and Price identified
Plaintiff's girlfriend as someone who matched the description
they were provided, and were in the process of detaining and
questioning her. (Bell Decl. Ex. B at 24–38.) At the time,
Bodenmiller and Price each had a baton, mace, a taser, and a
Glock semiautomatic handgun. (Pl.St.¶ 23.)
Plaintiff ran inside and stopped just inside the entrance and
dropped his backpack to the ground next to his left foot.
(Id. ¶¶ 7, 35–36; Bell Decl. Ex. A at 158–60.) 2 Plaintiff
testified that Price, who was closest to him, approached him
and instructed him to “calm down.” (Pl. St. ¶ 38; Bell Decl.
Ex. A at 161.) Bodenmiller “observed a dark colored object”
in Plaintiff's right hand. (Pl.St.¶ 8.) Bodenmiller did not see
Plaintiff point the object. (Id.¶ 9.) Nor did Plaintiff raise his
hands toward the officers or verbally threaten them. (Id. ¶¶
10, 12–14.) Bodenmiller saw Price turn towards Plaintiff, but
did not hear her say anything or see her raise her hands. (Id. ¶
15.) Bodenmiller further stated that Plaintiff did not lunge or
jump at Price. Price never requested Bodenmiller's assistance
or indicate to him that she felt threatened. (Id. ¶¶ 17–18.)
*2 Without saying anything to Plaintiff, Bodenmiller fired
two shots, aiming for Plaintiff's “center mass.” (Id. ¶¶ 19–
20, 41.) Bodenmiller testified that he had been trained to fire
twice at the center mass of a subject when in close proximity,
and, “[i]f the threat does not stop” to take a third shot to the
head. (Bell Decl. Ex. B at 57–58.) Plaintiff was struck with
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two bullets, one in the right index finger and one at the “rib
line.” (Pl.St.¶ 21.) Plaintiff heard “three pops” and felt pain in
his stomach before falling to his knees and landing on his right
side. (Id. ¶ 42.) No weapon or black object was ever found or
recovered on or near Plaintiff's person following the shooting.
(Id. ¶ 22.) Neither Price nor the third officer, Erdmann, drew
their weapons during the incident. (Id. ¶¶ 17, 25.)
Two months after the shooting, Price issued Plaintiff a
ticket for “obstructing governmental administration” at the
instruction of one of her supervisors. (Id. ¶ 26.)
About a year after the shooting, on September 27, 2011,
the Suffolk County Police Department issued a Department
Directive regarding the “Use of Force–Use of Firearms and
Deadly Physical Force” (hereinafter “Use of Force Directive”
or “Directive”). (Bell Decl. Ex. H at 24–1.) The purpose of the
Directive was to “establish[ ] the limits within which the use
of deadly force, particularly the use of firearms, by members
of the Suffolk County Police Department is permitted, and
outlines certain situations in which the use of firearms, or
other means of deadly force, is not permitted.” (Pl. St. ¶¶
28, 29; Bell Decl. Ex. H at 24–1.) Under the “Rules and
Regulations” section of the Directive, “[a]n officer may
discharge a firearm only in” specified situations, including
“Confrontational Situations” defined as “[w]hen reasonable
and necessary to defend an officer or another from what the
officer reasonably believes to be the use, or imminent use, of
deadly force.” (Pl. St. ¶ 30; Bell Decl. Ex. H at 24–2 (emphasis
in original).) The Use of Force Directive further provides that
“[s]ince all possible combinations of circumstances cannot
be envisioned ... a police officer may use deadly force as an
emergency measure to avoid the imminent unlawful use of
deadly force which is about to occur by reason of a situation
occasioned or developed through no fault of the officer; and,
which is of such gravity that, according to ordinary standards
of intelligence and morality, the desirability of avoiding
such injury clearly outweighs the desirability of avoiding the
conduct sought to be prevented by [the Directive's] Rules and
Procedures.” (Bell Decl. Ex. H at 24–4.)
Plaintiff alleges that Bodenmiller is the subject of another
excessive force suit claiming that Bodenmiller wrongfully
“utilized a shield to restrain” a prisoner, who subsequently
died in police custody on May 6, 2011. (Bell Decl. Ex. B at
10–11; Pl. St. ¶ 27.)
II. Procedural History
*3 Plaintiff commenced this action on August 1, 2011,
naming as defendants the County and a John Doe as
“the person intended to be the police officer who shot
plaintiff.” (Compl. at 1.) The County answered on August
16, 2011. (Dkt.3.) On September 6, 2011, Plaintiff submitted
a letter to Magistrate Judge William. D. Wall requesting
discovery regarding the identity of the police officer “in order
that said individual may be correctly named and served in
the lawsuit.” (Dkt.4.) Following a pretrial conference, Judge
Wall issued an order dated October 6, 2011 requiring that
“[m]otions to join new parties or amend the pleadings” be
filed by March 22, 2012 and that discovery be completed by
June 14, 2012. (Dkt. 7–1 at 1.) On or around November 8,
2011, Plaintiff served a summons for John Doe “n/k/a Robert
Bodenmiller” 3 via substitute service at the Suffolk County
Police Department. (Dkt 8 at 2 (Proof of Service for John
Doe).) Plaintiff did not, however, amend the Complaint to
name Bodenmiller. Indeed, to this day, Plaintiff has not sought
to amend the Complaint to name Bodenmiller as a defendant.
Thereafter, on June 20, 2012, Defendants furnished Plaintiffs
with the Police Department's Internal Affairs file regarding
the shooting, which indicated that Bodenmiller was the officer
who shot Plaintiff. (See Dkt. 11; Bell Decl. Ex. H.) Plaintiff
then deposed Bodenmiller on July 10, 2013. (Bell Decl. Ex.
B.) On October 15, 2013, discovery concluded and the parties
filed a joint proposed pretrial order that still indicated a “John
Doe” on the caption. (Dkt. 16 at 1). At a conference held on
October 22, 2013, the Court granted the County leave to file
its summary judgment motion.
LEGAL STANDARD
Summary judgment is proper only when, construing the
evidence in the light most favorable to the non-movant, “there
is no genuine dispute as to any material fact and the movant is
entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(a);
see also Redd v. N.Y. Div. of Parole, 678 F.3d 166, 173
(2d Cir.2012). A dispute is “genuine” when “the evidence
is such that a reasonable jury could return a verdict for
the nonmoving party.” Anderson v. Liberty Lobby, Inc., 477
U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). A
fact is material when it “might affect the outcome of the
suit under the governing law.” Id. Because Plaintiff, as the
non-moving party, has the “burden of proof at trial” on his
claim, the County's ability to satisfy this standard as to any
“essential element” of a claim “necessarily renders all other
facts immaterial,” Celotex Corp. v. Catrett, 477 U.S. 317,
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322–23, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986), and entitles
the County to summary judgment.
In determining whether there are genuine disputes of material
fact, the court must “resolve all ambiguities and draw all
permissible factual inferences in favor of the party against
whom summary judgment is sought.” Terry, 336 F.3d at 137
(citation and quotation omitted). The nonmoving party cannot
avoid summary judgment simply by relying “on conclusory
allegations or unsubstantiated speculation.” Jeffreys v. City of
New York, 426 F.3d 549, 554 (2d Cir.2005) (quotations and
citations omitted). That party must offer “some hard evidence
showing that its version of the events is not wholly fanciful.”
Miner v. Clinton Cnty., New York, 541 F.3d 464, 471 (2d
Cir.2008) (quotations and citation omitted).
DISCUSSION
I. Plaintiff's Claims against the John Doe Police Officer
*4 The Court initially addresses the parties' dispute
regarding which defendants are involved in this action.
Plaintiff alleges that the John Doe police officer named
in the Complaint, now known to be Bodenmiller, used
excessive force in violation of Plaintiff's constitutional rights.
(Compl.¶¶ 8, 14.) In response to the County's summary
judgment motion, Plaintiff asserts that the case must proceed
against the John Doe officer because no summary judgment
motion was filed on behalf of the John Doe officer, “now
known to be Bodenmiller.” (Dkt. 22 (“Pl.Mem.”) at 11).
The County disputes Plaintiff's contention on the basis that
Bodenmiller has not been and cannot now be made a party to
this case. (Dkt. 24–8 (“Reply”) at 3.) The Court agrees.
Although Bodenmiller indisputably is the officer who shot
Plaintiff, Plaintiff did not amend the Complaint to substitute
Bodenmiller as the John Doe Defendant prior to the expiration
of the applicable statute of limitations, nor, for that matter, has
he done so at any point in this litigation. Plaintiff's failure to
timely amend the Complaint is fatal to his claims against the
John Doe Defendant.
Section 1983 claims arising in New York have a statute
of limitations of three years. Patterson v. Cnty. of Oneida,
N.Y., 375 F.3d 206, 225 (2d Cir.2004). Here, Plaintiff's
claim accrued on August 4, 2010, and the limitations period
expired on August 4, 2013. Plaintiff filed his Complaint
on August 1, 2011, naming as defendants the County and
“John Doe, the person intended to be the police officer who
shot plaintiff.” (Compl. at 1.) Plaintiff's claim against the
County is timely. As to the individual officer Defendant, the
general rule is that “ ‘John Doe’ pleadings cannot be used to
circumvent statutes of limitations because replacing a ‘John
Doe’ with a named party in effect constitutes a change in
the party sued.” Hogan v. Fischer, 738 F.3d 509, 517 (2d
Cir.2013) (quoting Aslanidis v. United States Lines, Inc., 7
F.3d 1067, 1075 (2d Cir.1993)). Substitutions of a party's
name for John Doe, therefore, “may only be accomplished” if
the amended pleading relates back to the date of the complaint
under Federal Rule of Civil Procedure 15(c). Aslanidis, 7
F.3d at 1075. Since Plaintiff did not amend his Complaint to
substitute Bodenmiller for the John Doe Defendant, Plaintiff's
claims against Bodenmiller are timely only if he is permitted
to file an amendment that “relates back” to the Complaint,
filed on August 1, 2011. See Krupski v. Costa Crociere S.
p. A., 560 U.S. 538, 541, 130 S.Ct. 2485, 177 L.Ed.2d 48
(2010) (“Rule 15(c) of the Federal Rules of Civil Procedure
governs when an amended pleading ‘relates back’ to the date
of a timely filed original pleading and is thus itself timely
even though it was filed outside an applicable statute of
limitations.”); Laureano v. Goord, No. 06 Civ. 7845(SHS)
(RLE), 2007 WL 2826649, at *5 (S.D.N.Y. Aug. 31, 2007)
(“When the statute of limitations would otherwise bar an
amendment, Rule 15(c) allows the claim if it ‘relates back’ to
the original complaint.” (citing Fed.R.Civ.P. 15(c)(3)).
*5 Plaintiff's counsel has not attempted to substitute
Bodenmiller either by moving to amend the Complaint, or
by addressing the amendment issue in his opposition to the
County's motion for summary judgment. Though it appears
that Plaintiff would prefer the Court ignore the amendment
issue, the Court considers sua sponte whether Plaintiff should
be granted leave to file an amended complaint. The Court
finds that he should not.
A. Relation Back Under Rule 15(c)(1)(C)
Rule 15(a) instructs courts that “leave to amend [a complaint]
‘shall be freely given when justice so requires.’ “ Foman
v. Davis, 371 U.S. 178, 182, 83 S.Ct. 227, 9 L.Ed.2d 222
(1962) (citation omitted). Nevertheless, a motion to amend
“should generally be denied in instances of futility, undue
delay, bad faith or dilatory motive, repeated failure to cure
deficiencies ..., or undue prejudice to the non-moving party.”
Burch v. Pioneer Credit Recovery, Inc., 551 F.3d 122, 126 (2d
Cir.2006); see Monahan v. N.Y.C. Dep't of Corr. 214 F.3d 275,
283 (2d Cir.2000) (Leave to amend should be given “absent
evidence of undue delay, bad faith or dilatory motive on the
part of the movant, undue prejudice to the opposing party, or
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futility.”). An amendment is futile if the claim to be added
would be barred by the applicable statute of limitations. Grace
v. Rosenstock, 228 F.3d 40, 53 (2d Cir.2000).
“Rule 15(c) (1)(C) provides the federal standards for relation
back.” Hogan, 738 F.3d at 517. Under Rule 15(c)(1)(C),
an amendment to change the party against whom a claim
is asserted will relate back only if all of the following
specifications are met:
(1) the claim must have arisen out
of conduct set out in the original
pleading; (2) the party to be brought in
must have received such notice that it
will not be prejudiced in maintaining
its defense; (3) that party should
have known that, but for a mistake
of identity, the original action would
have been brought against it; and ...
[4] the second and third criteria are
fulfilled within 120 days of the filing
of the original complaint, and ... the
original complaint [was] filed within
the limitations period.
Hogan, 738 F.3d at 517 (quoting Barrow v. Wethersfield
Police Dep't., 66 F.3d 466, 468–69 (2d Cir.1995) (emphasis
in Hogan); see Fed.R.Civ.P. 15(c)(1)(C)(i)-(ii).
With respect to what constitutes “mistaken identity” for
purposes of permitting relation back under Rule 15(c), the
Second Circuit in Barrow held that:
Rule 15(c) does not allow an amended
complaint adding new defendants
to relate back if the newly added
defendants were not named originally
because the plaintiff did not know their
identities . Rule 15(c) explicitly allows
the relation back of an amendment
due to a ‘mistake’ concerning he
identity of the parties (under certain
circumstances), but not the failure
to identify individual defendants
when the plaintiff knows that such
defendants must be named cannot be
characterized as a mistake.
*6 66 F.3d at 470 (emphasis added). 4
In other words, where a plaintiff is mistaken about the identity
of the proper party to be sued, an amendment to name
that party may relate back under Rule 15(c). Id. at 469. 5
However, where the plaintiff knows who the proper party
is, just not by name, there is no mistake about identity that
will permit relation back under Rule 15(c). See Hogan, 738
F.3d at 518 (“This Court's interpretation of Rule 15(c)(1)
(C) makes clear that the lack of knowledge of a John Doe
defendant's name does not constitute a ‘mistaken identity.’
”) In that situation, any amendment to add the proper party's
name, once determined, must be made within the statute
of limitations. See id. at 517 (reiterating that “ ‘John Doe’
pleadings cannot be used to circumvent statutes of limitations
because replacing a ‘John Doe’ with a named party in effect
constitutes a change in the party sued”).
Here, Plaintiff was not mistaken about the identity of the
proper John Doe officer to sue; rather, he simply did not
did know the officer's name when he filed suit. In initiating
this action, Plaintiff intended to sue the “police officer who
shot plaintiff” on August 4, 2010. (Compl. at 1.) Plaintiff
identified that officer as “John Doe” in the Complaint
because he did not know Bodenmiller's name at the time, not
because of any mistake regarding Bodenmiller's role in, or
liability for, the shooting. Though Plaintiff was unaware of
Bodenmiller's identity, he was not mistaken about the need
to name Bodenmiller as a defendant. (See Dkt. 4 (Plaintiff's
letter requesting discovery from the County regarding the
John Doe's officer's identity, and indicating that the officer
had to be “correctly named ... in the lawsuit”)); Barrow, 66
F.3d at 470 (Rule 15(c) does not permit relation back where
the “plaintiff knows that [the] defendant[ ] must be named”).
Thus, Plaintiff's failure to name Bodenmiller in this suit
does not constitute a mistake under Rule 15(c)(1)(C)(ii). See
Bender v. City of New York, No. 14 Civ. 4386(LTS)(GWG),
2015 WL 524283, at *3–4 (S.D.N.Y. Feb. 10, 2015) (under
Barrow, “[plaintiff] cannot satisfy Rule 15(c)(1)(C)(ii), as the
John Doe defendants were unnamed because [plaintiff] did
not know their names at the time she filed the complaint;
rather, she first learned this information only when the named
defendants made their initial disclosures”); Ceara v. Deacon,
No. 13 Civ. 6023(KMK), 2014 WL 6674559, at *4 (S.D.N.Y.
Nov.25, 2014) (plaintiff's reason for not serving officer within
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the three year period—that he did not know the identity of the
defendant-was insufficient to satisfy the mistake element of
Rule 15(c)(1)(C)); Vasconcellos v. City of New York, No. 12
Civ. 8445(CM), 2014 WL 4961441, at *5–6 (S.D.N.Y. Oct.2,
2014) (“[u]nder a straightforward application of Barrow,”
plaintiff's failure “to identify the Officer Defendants by name
in her original suit because she did not know their identities”
“cannot be characterized as a mistake” for purposes of Rule
15(c)); Strada v. City of New York, No. 11 Civ. 5735(MKB),
2014 WL 3490306, at *9 (E.D.N.Y. July 11, 2014) (“Barrow
precludes this Court from finding that [p]laintiff's failure to
amend the Complaint to name the individual officers was
a mistake contemplated by Rule 15(c).”); Ulloa v. City of
New York, No. 13 Civ. 5795(AKH), 2014 WL 1100226, at
*2 (S.D.N.Y.Jan.6, 2014) (“a plaintiff's lack of knowledge as
to the identity of John Doe defendants cannot be considered
a ‘mistake” (citation omitted)). Accordingly, Rule 15(c)(1)
(C) does not provide a basis to allow Plaintiff to amend the
Complaint to name Bodenmiller and relate the claims against
him back to the date of the original Complaint.
B. Relation Back Under Rule(c)(1)(A)
*7 In addition to relation back under Rule 15(c), the Courts
must examine the “controlling body of limitations law,” and
apply state law if it provides “a more forgiving principle of
relation back than the one provided” by Rule 15(c). Hogan,
738 F.3d at 518 (quoting Fed.R.Civ.P. 15, Advisory Comm.
Notes 1991); see Fed.R.Civ.P. 15(c)(1) (an amended pleading
also relates back to an earlier pleading if “the law that
provides the applicable statute of limitations allows relation
back”). The Court will thus examine whether a claim against
Bodenmiller would be timely under the relevant provisions of
the New York Civil Practice Law and Rules (“CPLR”).
1. Section 203 of the CPLR
A party may seek relation back for a previously unknown
defendant under CPLR § 203(c), New York's general relation
back statute. Strada, 2014 WL 3490306, at *6 (citing Bumpus
v. New York City Transit Auth., 66 A.D.3d 26, 883 N.Y.S.2d
99, 106 (App.Div.2009)). Under § 203, courts allow claims
against a new defendant to “relate back to timely filed
pleadings when (1) the new claim arose out of the same
conduct, transaction or occurrence as the original allegations;
(2) the new party is united in interest with the original
defendant, and by reason of that relationship can be charged
with such notice of the institution of the action that he will
not be prejudiced in maintaining his defense on the merits;
and (3) the new party knew or should have known that, but
for a mistake as to the identity of the proper parties, the
action would have been brought against him as well.” JCG
v. Ercole, No. 11 Civ. 6844(CM)(JLC), 2014 WL 1630815,
at *15 (S.D.N.Y. Apr. 24, 2014) (quoting Fisher v. Cnty. of
Nassau, No. 10 Civ. 0677(JS)(ETB), 2011 WL 4899920, at
*5 (E.D .N.Y. Oct. 13, 2011)), report and recommendation
adopted, 2014 WL 2769120 (S.D.N.Y. June 18, 2014).
Here, Plaintiff cannot avail himself of § 203 for the same
reasons that Rule 15(c) does not apply. Plaintiff cannot
establish the third prong of the test under § 203, which, like
Rule 15(c), requires a mistake as to the identity of the proper
party to be sued. As discussed above in the Rule 15(c) context,
the failure to name a defendant whom the plaintiff knows must
be named does not constitute a “mistake.” “The third prong
of § 203(c) ‘employs the same standard as the federal rule.’
” Bender, 2015 WL 524283, at *6 (quoting Sloane v. Town of
Greenburgh, No. 01 Civ. 11551(MBM), 2005 WL 1837441,
at *3 (S.D.N.Y. July 27, 2005)). Since Plaintiff cannot satisfy
Rule 15(c)'s mistake element, he also cannot satisfy the third
prong of § 203(c). Any claim against Bodenmiller therefore
would not relate back to the date of the Complaint under
CPLR § 203. See, e.g., Strada, 2014 WL 3490306, at *9.
2. Section 1024 of the CPLR
CPLR § 1024 allows “[a] party who is ignorant, ... of the
name or identity of a person who may properly be made
a party[ ][to] proceed against such person as an unknown
party by designating so much of his name and identity as
is known. If the name or remainder of the name becomes
known[,] all subsequent proceedings shall be taken under
the true name and all prior proceedings shall be deemed
amended accordingly.” Under CPLR § 306–b, once a John
Doe complaint is filed, a plaintiff must serve it on the correct
defendant within 120 days after the commencement of the
action.
*8 The Second Circuit recently held that CPLR § 1024
is more forgiving in relating back complaints compared to
the federal standard under Rule 15(c). See Hogan, 738 F.3d
at 518; accord Ceara, 2014 WL 6674559, at *5; Strada,
2014 WL 3490306, at *5. To invoke § 1024, a plaintiff must
show that: (1) the plaintiff “exercise[d] due diligence, prior
to the running of the statute of limitations, to identify the
defendant by name;” and (2) the plaintiff “describe[d] the
John Doe party in such form as will fairly apprise the party
that he is the intended defendant.” Hogan, 738 F.3d at 519
(alteration, citations and internal quotation marks omitted).
“Due diligence in this context requires that a plaintiff ‘show
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that he or she made timely efforts to identify the correct party
before the statute of limitations expired .’ ” Strada, 2014 WL
3490306, at *5 (quoting Justin v. Orshan, 14 A.D.3d 492, 788
N.Y.S.2d 407, 408 (N.Y.App.Div.2005)).
Plaintiff's inexplicable failure to amend the complaint—
despite learning Bodenmiller's identity shortly after filing the
Complaint—cannot satisfy the due diligence requirement of
§ 1024. Early in this litigation, Plaintiff sought discovery
of the identity of the John Doe police officer so “that said
individual may be correctly named and served[.]” (Dkt.4.)
Plaintiff then served a summons for John Doe, “n/k/a Robert
Bodenmiller[,]” at the Suffolk County Police Department on
or about November 8, 2011 (see Dkt. 8 at 2)—several months
before the March 22, 2012 court-imposed deadline for joining
new parties or amending the Complaint, and almost two years
before the expiration of the statute of limitations on August
4, 2013. Yet Plaintiff did not seek to amend the Complaint
in the time between November 8, 2011 and August 4, 2013.
Plaintiff still did not act to amend the Complaint after the
County furnished an Internal Affairs report on June 20, 2012
that named Bodenmiller as the officer who shot Plaintiff. Nor
did Plaintiff seek to amend the Complaint after conducting
a deposition of Bodenmiller on July 10, 2013. Even after
the County raised this issue in its summary judgment motion
papers, Plaintiff did not seek to amend. Moreover, Plaintiff
offers no explanation for his failure to amend the Complaint
or seek an extension of the time in which to do so. Because
Plaintiff learned the true identity of the John Doe Defendant
prior to the expiration of the statute of limitations, he cannot
invoke § 1024 to now add Bodenmiller as a defendant to
this action. See Strada, 2014 WL 3490306, at *6 (plaintiff
did not exercise due diligence where, inter alia, defendant
provided plaintiff with the names of the officers involved
prior to the expiration of the statute of limitations, and
plaintiff did not attempt to amend the Complaint). Cf. Ceara,
2014 WL 6674559, at *5 (plaintiff acted with due diligence
because plaintiff made efforts to ascertain defendant's full
identity, apprised the court of his efforts, and promptly filed an
amended complaint within thirty days of learning defendant's
name).
*9 Accordingly, an amendment to substitute Bodenmiller
for the John Doe Defendant would not relate back to the filing
date of Plaintiff's Complaint under federal or state law. Given
that the statute of limitations has run, amending the Complaint
to add Bodenmiller would be futile. Regrettably, Plaintiff has
buried his head in the sand, to his peril, with respect to this
fatal flaw in his Complaint. The Court is thus constrained
from granting Plaintiff leave to file an amended complaint,
and Plaintiff's claim against the John Doe Defendant must be
dismissed.
II. Plaintiff's Claims Against the County
A. Section 1983 Claim
To prevail on a claim under 42 U.S.C. § 1983, a plaintiff must
show the deprivation of any rights, privileges, or immunities
secured by the Constitution and laws by a person acting under
the color of state law. 42 U.S.C. § 1983. “Section 1983 itself
creates no substantive rights; it provides only a procedure for
redress for the deprivation of rights established elsewhere.”
Sykes v. James, 13 F.3d 515, 519 (2d Cir.1993). In this
action, Plaintiff's claims arise under the Fourth Amendment's
prohibition against unreasonable seizures. 6
Because municipalities may not be held vicariously liable
for the actions of their employees, a § 1983 claim against
a municipality must be premised on the theory that the
municipality maintained a policy, practice, or custom that
caused the plaintiff's constitutional injury. Monell v. Dep't
of Social Servs. of City of N.Y., 436 U.S. 658, 694–95, 98
S.Ct. 2018, 56 L.Ed.2d 611 (1978) (“[A] local government
may not be sued under § 1983 for an injury inflicted solely
by its employees or agents. Instead, it is when execution of
a government's policy or custom ... inflicts the injury that
the government as an entity is responsible under § 1983.”).
Courts in this Circuit apply a two-prong test to § 1983 claims
brought against a municipality. Vippolis v. Vill. of Haverstraw,
768 F.2d 40, 44 (2d Cir.1985). A “plaintiff must first prove
the existence of a municipal policy or custom in order to
show that the municipality took some action that caused his
injuries beyond merely employing the misbehaving officer.”
Id. (citation omitted). Next, a plaintiff must establish a “
‘direct causal link between [the] municipal policy or custom
and the alleged constitutional deprivation.’ ” Hayes v. Cnty.
of Sullivan, 853 F.Supp.2d 400, 439 (S.D.N.Y.2012) (quoting
City of Canton v. Harris, 489 U.S. 378, 385, 109 S.Ct. 1197,
103 L.Ed.2d 412(1989)); accord Abreu v. City of New York,
657 F.Supp.2d 357, 360 (E.D.N.Y.2009) (quoting Canton,
489 U.S. at 385).
A policy or custom may be established by any of the
following: (1) a formal policy officially endorsed by the
municipality; (2) actions or decisions made by municipal
officials with decision-making authority; (3) a practice so
persistent and widespread that it constitutes a custom through
which constructive notice is imposed upon policymakers; or
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(4) a failure by policymakers to properly train or supervise
their subordinates, such that the policymakers exercised
“deliberate indifference” to the rights of the plaintiff. See
Parker v. City of Long Beach, 563 F. App'x 39 (2d Cir.2014),
as amended, (Apr. 21, 2014) (failure to train); Matusick v. Erie
Cnty. Water Auth., 757 F.3d 31, 62 (2d Cir.2014) (widespread
and persistent practice); Hines v. Albany Police Dep't, 520 F.
App'x 5, 7 (2d Cir.2013) (actions of policymakers); Schnitter
v. City of Rochester, 556 F. App'x 5, 8 (2d Cir.2014) (failure
to train or supervise); Missel v. Cnty. of Monroe, 351 F. App'x
543, 545 (2d Cir.2009) (formal policy and act of a person with
policymaking authority for the municipality).
*10 Plaintiff alleges, in sum and substance, that the County
was deliberately indifferent to his rights due to its failure to
properly train or supervise its officers, including Bodenmiller.
(Compl.¶¶ 10–11.) Plaintiff points to two alleged policies in
support of his claims: (1) the Use of Force Directive, which
Plaintiff contends is “so vaguely worded” that it provides no
meaningful guidance on when officers may exercise deadly
force, and (2) Bodenmiller's deposition statement that he was
trained to fire two shots aimed at a subject's center mass.
(Pl. Mem. at 12–13.) Plaintiff asserts that the combination
of these two policies created “a situation where Bodenmiller
was shooting to kill” with only a vague directive on when
he should use deadly force, thereby causing a deprivation of
Plaintiff's constitutional rights. (Id. at 13–14.)
Deliberate indifference with respect to the failure to
train or supervise municipal employees exists where the
plaintiff establishes that (1) “a policymaker knows ‘to a
moral certainty’ that [municipal] employees will confront
a particular situation”; (2) “the situation either presents the
employee with ‘a difficult choice of the sort that training or
supervision will make less difficult,’ or ‘there is a history
of employees mishandling the situation’ “; and (3) “ ‘the
wrong choice by the [municipal] employee will frequently
cause the deprivation of a citizen's constitutional rights.’ “
Wray v. City of New York, 490 F.3d 189, 195–96 (2d Cir.2007)
(quoting Walker v. City of New York, 974 F.2d 293, 297–98
(2d Cir.1992)). The plaintiff must show the “policymaker's
inaction was the result of ‘conscious choice’ and not ‘mere
negligence.’ “ Cash v. Cnty. of Erie, 654 F.3d 324, 334 (2d
Cir.2011) (quoting Amnesty Am. v. Town of W. Hartford, 361
F.3d 113, 128 (2d Cir.2004)); see Feng Zhao v. City of New
York, 656 F.Supp.2d 375, 396 (S.D.N.Y.2009) (“To sustain
a Monell claim based on a failure to supervise or discipline,
the plaintiff must demonstrate that the decision-maker was
on notice of a potentially serious problem of unconstitutional
conduct, that the need for corrective action was obvious, and
that the decision-maker failed to investigate or take action in
circumstances suggesting deliberate indifference to the rights
of those being harmed.”)
“A pattern of similar constitutional violations by untrained
employees is ‘ordinarily necessary’ to demonstrate deliberate
indifference for purposes of failure to train.” Connick v.
Thompson, ––– U.S. ––––, ––––, 131 S.Ct. 1350, 1360, 179
L.Ed.2d 417 (2011) (quoting Bd. of Cnty. Comm'rs of Bryan
Cnty. v. Brown, 520 U.S. 397, 409, 117 S.Ct. 1382, 137
L.Ed.2d 626, (1997)). Without actual or constructive “notice
that a course of training is deficient in a particular respect,
decisionmakers can hardly be said to have deliberately
chosen a training program that will cause violations of
constitutional rights.” Id. Nevertheless, “in a narrow range
of circumstances,” a municipality can be found to be
deliberately indifferent based on a single incident where
“the unconstitutional consequences of failing to train [are]
so patently obvious that a city should be liable under §
1983 without proof of a pre-existing pattern of violations.”
Connick, 131 S.Ct. at 1360–61; see Canton, 489 U.S. at
390 n. 10. The violation of constitutional rights must be a
“highly predictable consequence” of the failure to train or
supervise. Connick, 131 S.Ct. at 1361 (internal quotation
marks omitted).
*11 Even construing the evidence in the record most
favorably to Plaintiff, no rational jury could conclude that
the standard for municipal liability, under a failure to train
theory or any other theory, has been met. Plaintiff fails
to proffer evidence sufficient to permit a trier of fact to
find that the County has acted with deliberate indifference
in designing its training program or that the deficiencies
he cites led to the violation of his rights by Bodenmiller.
Most significantly, Plaintiff points to no evidence of similar
violations by purportedly untrained officers that may have
notified the County of any deficiencies with the County's
training of its officers with respect to the use of deadly
force and civilian encounters. The record is devoid of
evidence that before the events of August 4, 2010, the County
knew of a pattern or even one incident involving use of
excessive force or improper deadly force by Suffolk County
police officers. See Connick, 131 S.Ct. at 1360 (“pattern of
similar constitutional violations by untrained employees is
‘ordinarily necessary’ to demonstrate deliberate indifference”
on a failure to train theory). Although Bodenmiller testified
that he is a named defendant in another suit involving
allegation of excessive force, there is no indication that that
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event occurred before August 4, 2010. (Bell Decl. Ex. B at
10–11.) Plaintiff's submissions suggest that, to the contrary,
the incident occurred afterwards on May 6, 2011. (Pl.St.¶
27.) Nor is there any evidence indicating that the other
alleged incident involved a use of force comparable or similar
to the August 4, 2010 shooting. Thus, nothing suggests
that the County condoned or ignored repeated constitutional
violations.
To the extent Plaintiff relies on a single-incident theory of
liability (see Pl. Mem. at 13), that claim also fails because
Plaintiffs cannot show that the use of force training provided
by the County to its police officers is tantamount to a lack
of training. To make this showing, Plaintiffs must prove that
the County's police officers have an “utter lack of an ability
to cope with constitutional situations,” Connick, 131 S.Ct.
at 1363, and that “the need for more or different training
is so obvious and the inadequacy so likely to result in the
violation of constitutional rights,” Canton, 489 U.S. at 390.
Accord Breitkopf v. Gentile, No. 12 Civ.1084 (JFB)(AKT),
2014 WL 4258994, at *23 (E.D.N.Y. Aug. 29, 2014). Here,
it is uncontroverted that the County provided some use of
force training to Bodenmiller and his fellow officers. (See,
e.g., Pl. St. ¶ 19; Bell Decl. Ex. B at 57–58.) Bodenmiller
testified that he was trained at the police academy, and
annual training thereafter at the precinct, on the use of deadly
physical force. (Bell Decl. Ex. B at 88–89.) Bodenmiller
also testified to his understanding that he was “allowed to
use deadly force when [he] reasonably believe[d] that deadly
force is being used against [him] or a third person.” (Id . at
89.) Where, as here, a plaintiff challenges the adequacy of
training rather than the failure to train at all, courts repeatedly
have held that a plaintiff cannot rely on the single-incident
theory of municipal liability. See, e.g., O'Brien v. Barrows,
556 Fed. App'x. 2, 5 (2d Cir.2014) (“failing to provide an
armed police officer with any training about the constitutional
limitations on the use of deadly force could constitute
deliberate indifference” (emphasis in original)); Breitkopf,
2014 WL 4258994, at *23 (“Since Connick, some courts
have concluded that a plaintiff cannot rely on the single-
incident theory where she challenges the adequacy and not
the lack of the existence of training.”); Chamberlain v. City
of White Plains, 986 F.Supp.2d 363, 391–93 (S.D.N.Y.2013)
(collecting cases denying summary judgment based on lack
of any training, and dismissing claims challenging adequacy
of training).
*12 Plaintiff's contention that the Use of Force Directive
evidences the County's deliberate indifference by failing to
provide sufficiently specific guidance on the use of deadly
force also fails for the reasons already stated. See Yang
Feng Zhao, 656 F.Supp.2d at 394 (no triable issue of fact
based on assertion that training was deficient in not providing
guidance about when to believe a suspect's denial of guilt
and when to avoid questioning). Furthermore, the Directive
was issued in September 2011—over a year after Plaintiff
was shot in August 2010—a fact seemingly overlooked by
both parties. (Bell Decl. Ex. H at 24–1; see Reply at 4–7).
It is difficult to see how any purported deficiency in the as-
yet-unadopted Directive caused Bodenmiller to improperly
implement deadly force against Plaintiff.
Lastly, even assuming arguendo that some iteration of the Use
of Force Directive was in effect at the time of the shooting,
such a policy, coupled with the training that Bodenmiller
received about shooting twice at a subject's center mass, is still
insufficient to establish the County's deliberate indifference.
As previously discussed, Plaintiff has not presented any
evidence tending to show that the improper use of force
was a common problem in the County's police force. Nor
has Plaintiff offered any evidence about deficiencies in the
County's Use of Force Directive or training and how any
additional or other training might have altered Bodenmiller's
actions. Thus, Plaintiff cannot show that the shooting was
caused by a County policy, as opposed to Bodenmiller's
failure to follow the training he received. See Amnesty Am.,
361 F.3d at 129–30 (“The elements of an identified training
deficiency and a close causal relationship, which together
require the plaintiffs to prove that the deprivation occurred
as the result of a municipal policy rather than as a result of
isolated misconduct by a single actor, ensure that a failure
to train theory does not collapse into respondeat superior
liability.”). 7 Accordingly, the County is entitled to summary
judgment on Plaintiff's § 1983 claim.
B. Plaintiff's State Law Claims
Plaintiff asserts various state law claims against the County
and John Doe Defendant that appear to allege excessive
force, assault and battery, and negligent hiring, training, and
supervision of police officers. (Compl.¶¶ 17–31.) To the
extent these claims allege negligent training or supervision
by the County based on the same facts upon which the
Plaintiff's Section 1983 claim against the County is based, the
Court dismisses them, with prejudice, for the same reasons
discussed above. See Henry–Lee v. City of New York, 746
F.Supp.2d 546, 566 (S.D.N.Y.2010) (“To prevail on a [state
law] claim for negligent hiring, training, supervision, or
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retention, a plaintiff must prove that a municipality's failure
to properly train, hire, retain, or supervise ‘its police officers
in a relevant respect evidences a deliberate indifference to
the rights of its inhabitants.’ ” (quoting Jackson v. City of
New York, 192 A.D.2d 641, 596 N.Y.S.2d 457, 458 (1993))
(emphasis added)). As for the remaining state law claims
against both Defendants, the Court declines to exercise
supplemental jurisdiction over them under 28 U.S.C. § 1367,
and dismisses them without prejudice.
CONCLUSION
*13 The Court accordingly grants the County's motion for
summary judgment in its entirety, and dismisses Plaintiff's
Complaint. All of Plaintiff's claims, except his state law
claims that do not allege negligent training and supervision
by the County and his state law claims against the John Doe
Defendant, are dismissed with prejudice. The Clerk of Court
is respectfully requested to close this case.
SO ORDERED:
All Citations
Not Reported in F.Supp.3d, 2015 WL 1321685
Footnotes
1 The Court declines Plaintiff's invitation to deny the County's motion based on the County's failure to comply
with Local Rule 56.1. (See Pl. Mem. at 10.) Although the County's 56.1 Statement does not set forth
undisputed material facts supported by citations to competent evidence (see Dkt. 24–1), as required by the
Rule, the Court exercises its “broad discretion to ... to overlook a party's failure to comply with local court
rules[,]” and conducts its own review of the record. See Holtz v. Rockefeller & Co., 258 F.3d 62, 73 (2d
Cir.2001). Accordingly, where relevant, the Court cites to supporting evidence in the record.
2 Plaintiff's account differs from the officers' in this regard; Price and Erdmann testified that Moran approached
the officers “aggressively” or in a “slow run.” (See Bell Decl. Exs. C. at 72 & D at 44, 58.) Bodemiller testified
that Moran “was charging towards Officer Price.” (Id. Ex. B at 44.) Plaintiff also denies having any object in
his right hand. (Pl.St.¶ 39).
3 The acronym “n/k/a” refers to the phrase “now known as.”
4 While there has been some debate over the continuing vitality of Barrow after the Supreme Court's decision
in Krupski v. Costa Crociere S.p.A., 560 U.S. 538, 130 S.Ct. 2485, 177 L.Ed.2d 48 (2010), the Court finds that
Barrow remains good law, and that, unlike Krupski, Barrow is directly relevant to the facts presented here.
See, e.g., Morales v. Cnty. of Suffolk, 952 F.Supp.2d 433, 437 (E.D.N.Y.2013) (finding that Krupski did not
address the key issue in Barrow, i.e., “whether a plaintiff's lack of knowledge as to the identity of ‘John Doe’
Defendants can be considered a ‘mistake’ or ‘error’ “ and citing decisions concluding that “Barrow remains
good law after Krupski.” ).
5 In Barrow, the Second Circuit cited the example of this type of mistake contained in the Advisory Committee
Notes for Rule 15(c): “when a defendant mistakenly sues an agency of the government without knowing that
the cause of action requires the defendant to sue an agency head.” 66 F.3d at 469.
6 Although Plaintiff also asserts claims under the due process clause and the Eighth Amendment, “[a]ll
claims that law enforcement officers have used excessive force—deadly or not—in the course of an arrest,
investigatory stop, or other ‘seizure’ of a free citizen should be analyzed under the Fourth Amendment and its
‘reasonableness' standard, rather than under a ‘substantive due process' approach.” Graham v. Connor, 490
U.S. 386, 395, 109 S.Ct. 1865, 104 L.Ed.2d 443 (1989); see Taylor v. Nassau Cnty., 11 Civ. 0934(SJF), 2012
WL 5472554, at *1 n. 2 (E.D.N.Y. Nov. 5, 2012) (addressing excessive force claim brought under Fourth and
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Fourteenth Amendment under Fourth Amendment only). The Eighth Amendment, which applies to claims of
excessive force brought by convicted prisoners, is also unavailable to Plaintiff. See Graham, 490 U.S. at 394;
Whitley v. Albers, 475 U.S. 312, 327, 106 S.Ct. 1078, 89 L.Ed.2d 251 (1986).
7 Indeed, as discussed, Bodenmiller testified that he received use of force training when he first became a
County police officer and annually thereafter and that his understanding of the County's use of force policy
was that he was “allowed to use deadly force when [he] reasonably believe [d] that deadly force is being used
against [him] or a third person.” (Bell Decl. Ex. B at 89.)
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Myers v. Wollowitz, Not Reported in F.Supp. (1995)
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1995 WL 236245
Only the Westlaw citation is currently available.
United States District Court, N.D. New York.
James N. MYERS, Jr., Plaintiff,
v.
Heather WOLLOWITZ, Attorney, Defendant.
No. 95–CV–0272 (TJM) (RWS).
|
April 10, 1995.
Attorneys and Law Firms
James N. Myers, Jr., Troy, NY, pro se.
DECISION AND ORDER
McAVOY, Chief Judge.
I. Background
*1 Presently before this Court is the above-captioned
plaintiff's application to proceed in forma pauperis and civil
rights complaint. Plaintiff has not paid the partial filing fee
required to maintain this action.
For the reasons stated below, plaintiff's complaint is dismissed
pursuant to 28 U.S.C. § 1915(d) and Local Rule 5.4(a) of the
General Rules of this Court as without arguable basis in law.
In his pro se complaint, plaintiff seems to claim that plaintiff
was represented by defendant Wollowitz, a public defender
for the County of Rensselaer, in a County Court proceeding.
Plaintiff alleges that after a criminal proceeding in that Court,
plaintiff was “sentenced to a illegal sentence.” Id. at 2.
Plaintiff contends that due to the ineffective assistance of his
counsel, defendant Wollowitz, his constitutional rights were
violated. For a more complete statement of plaintiff's claims,
reference is made to the entire complaint filed herein.
II. Discussion
Consideration of whether a pro se plaintiff should be
permitted to proceed in forma pauperis is a two-step
process. First, the court must determine whether the plaintiff's
economic status warrants waiver of fees and costs under 28
U.S.C. § 1915(a). If the plaintiff qualifies by economic status,
the court must then consider whether the cause of action
stated in the complaint is frivolous or malicious. Moreman
v. Douglas, 848 F.Supp. 332, 333 (N.D.N.Y.1994) (Scullin,
J.); Potnick v. Eastern State Hosp., 701 F.2d 243, 244 (2d
Cir.1983) (per curiam).
In the present case, upon review of the plaintiff's inmate
account statements, the Court has determined that plaintiff's
financial status qualifies him to file or “commence” this action
in forma pauperis. 28 U.S.C. § 1915(a). Turning to the second
inquiry, a court may “dismiss the proceeding under 28 U.S.C.
§ 1915(d) if the court thereafter determines that ... the action
is frivolous or malicious.” Moreman, 848 F.Supp. at 333
(citation omitted).
In determining whether an action is frivolous, the court
must look to see whether the complaint lacks an arguable
basis either in law or in fact. Neitzke v. Williams, 490
U.S. 319, 325 (1989). Although the court has the duty to
show liberality towards pro se litigants, Nance v. Kelly,
912 F.2d 605, 606 (2d Cir.1990) (per curiam), and extreme
caution should be exercised in ordering sua sponte dismissal
of a pro se complaint before the adverse party has been
served and the parties have had an opportunity to respond,
Anderson v. Coughlin, 700 F.2d 37, 41 (2d Cir.1983), there
is a responsibility on the court to determine that a claim is
not frivolous before permitting a plaintiff to proceed with
an action in forma pauperis. Dismissal of frivolous actions
pursuant to 28 U.S.C. § 1915(d) is appropriate to prevent
abuses of the process of the court, Harkins v. Eldredge, 505
F.2d 802, 804 (8th Cir.1974), as well as to discourage the
waste of judicial resources. Neitzke, 490 U.S. at 327. See
generally Moreman, 848 F.Supp. at 334.
*2 42 U.S.C. § 1983 is the vehicle by which individuals
may seek redress for alleged violations of their constitutional
rights. See, e.g., Von Ritter v. Heald, 91–CV–612, 1994 WL
688306, *3, 1994 U.S.Dist. LEXIS 17698, *8–9 (N.D.N.Y.
Nov. 14, 1994) (McAvoy, C.J.). A party may not be held
liable under this section unless it can be established that the
defendant has acted under the color of state law. See, e.g.,
Rounseville v. Zahl, 13 F.3rd 625, 628 (2d Cir.1994) (noting
state action requirement under § 1983); Wise v. Battistoni,
92–Civ–4288, 1992 WL 380914, *1, 1992 U.S.Dist. LEXIS
18864, *2–3 (S.D.N.Y. Dec. 10, 1992) (same) (citations
omitted).
In the present case, the sole defendant named by plaintiff
is the Rensselaer County public defender who apparently
represented plaintiff in the criminal proceeding discussed in
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his complaint. See Complaint at 2. However, “[i]t is well
settled that an attorney's representation of a party to a court
proceeding does not satisfy the Section 1983 requirement that
the defendant is alleged to have acted under color of state
law....” Wise, 1992 WL 380914 at *1, 1992 U.S.Dist. LEXIS
18864 at *2–3; see also D'Ottavio v. Depetris, 91–Civ–6133,
1991 WL 206278, *1, 1991 U.S.Dist. LEXIS 13526, *1–2
(S.D.N.Y. Sept. 26, 1991).
Since the plaintiff has not alleged any state action with
respect to the Section 1983 claim presently before the Court,
plaintiff's complaint, as presented to this Court, cannot be
supported by any arguable basis in law and must therefore be
dismissed pursuant to 28 U.S.C. § 1915(d). Neitzke, 490 U.S.
at 328.
Accordingly, it is hereby
ORDERED, that leave to proceed or prosecute this action in
forma pauperis is denied, and it is further
ORDERED, that this action is dismissed pursuant to 28
U.S.C. § 1915(d) and Local Rule 5.4(a) of the General Rules
of this Court as lacking any arguable basis in law, and it is
further
ORDERED, that the Clerk serve a copy of this Order on the
plaintiff by regular mail.
I further certify that any appeal from this matter would not be
taken in good faith pursuant to 28 U.S.C. § 1915(a).
IT IS SO ORDERED.
All Citations
Not Reported in F.Supp., 1995 WL 236245
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Rech v. Siragusa, Not Reported in Fed. Supp. (2023)
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2023 WL 2559409
Only the Westlaw citation is currently available.
United States District Court, W.D. New York.
Michael RECH, Plaintiff,
v.
Charles J. SIRAGUSA, et al., Defendants.
6:23-CV-6039 EAW
|
Signed March 3, 2023
Attorneys and Law Firms
Michael Rech, Youngstown, OH, Pro Se.
DECISION AND ORDER
ELIZABETH A. WOLFORD, Chief Judge
INTRODUCTIONS
*1 Pro se plaintiff Michael Rech (“Plaintiff”) is incarcerated
at the Northeast Ohio Correctional Center and he has filed this
action seeking relief pursuant to 42 U.S.C. § 1983 and Bivens
v. Six Unknown Named Agents of Fed. Bureau of Narcotics,
403 U.S. 388, 91 S.Ct. 1999, 29 L.Ed.2d 619 (1971). (Dkt.
1). He asserts several claims stemming from two searches
and seizures in his underlying criminal case, United States
of America v. Rech, Case No. 6:21-CR-6080-CJS-MWP (the
“criminal case”), which is currently pending sentencing after
conviction at trial in this District. Plaintiff seeks various forms
of relief, including the return of all seized items and funds,
vacatur of his conviction and any orders issued by United
States District Judge Charles Siragusa and United States
Magistrate Judge Marian Payson in the criminal case, Judge
Siragusa's recusal in the criminal case, and immediate release.
(Dkt. 1 at 14).
Plaintiff has filed a motion for leave to proceed in forma
pauperis, in which he also requests the appointment of
counsel. (Dkt. 2). Plaintiff has also filed a request for
disqualification of the undersigned and that the matter be
assigned to a judge from outside this District. (Dkt. 5). For the
reasons discussed below, Plaintiff is granted leave to proceed
in forma pauperis, Plaintiff's request that the undersigned
recuse herself and that the matter be assigned to a judge from
outside this District is denied, the complaint is dismissed
without leave to replead, and the request for the appointment
of counsel is denied.
DISCUSSION
I. Request for Disqualification
Plaintiff requests that this case “not be assigned to any judge
in the W.D.N.Y. District Court,” asserting that assignment to
a judge from outside this District is “imperative to protect
[Plaintiff's] rights and to assure due process and impartial
hearings/trial.” (Dkt. 5 at 1).
Pursuant to 28 U.S.C. § 455(a), a judge must disqualify
herself “in any proceeding in which [her] impartiality
might reasonably be questioned.” 28 U.S.C. § 455(a).
“This provision governs circumstances that constitute an
appearance of partiality, even though actual partiality has
not been shown.” Chase Manhattan Bank v. Affiliated FM
Ins. Co., 343 F.3d 120, 127 (2d Cir. 2003) (citing Liljeberg
v. Health Servs. Acquisition Corp., 486 U.S. 847, 860,
108 S.Ct. 2194, 100 L.Ed.2d 855 (1988)). “The bias and/
or prejudice asserted under [§ 455(a)] must stem from
extrajudicial sources, i.e., outside the judicial proceeding
at hand.” Hoffenberg v. Hoffman & Pollok, No. 00 Civ.
3151(RWS), 2002 WL 31444994, at *2 (S.D.N.Y. Oct. 31,
2002) (citations omitted). “Since the judge is presumed to be
impartial, the movant has a stringent burden of proof.” Id.
(citations omitted).
Plaintiff has offered no specific factual reasons why the
undersigned (or any other judge in this District) could not be
impartial in this case. It thus appears that Plaintiff's request is
based solely on the fact that he has named Judges Siragusa and
Payson as defendants in this action. However, “recusal cases
are very fact-specific” and “[j]udges need not always recuse
when a fellow judge is somehow involved in case.” King v.
Deputy Atty. Gen. Del., 616 F. App'x 491, 495 (3d Cir. 2015)
(citations omitted); see also Whitnum v. Town of Woodbridge,
No. 3:17-CV-1362 (JCH), 2019 WL 3024865, at *3 (D. Conn.
July 11, 2019) (“[That the plaintiff] complains of rulings,
actions, or inactions of one or more of the undersigned's
colleagues, cannot be a basis for recusal. No reasonable
person would conclude, in this case, that because a colleague
of the undersigned has been criticized by a litigant, that the
undersigned could not fairly preside over her case.”); Meyer
v. Foti, 720 F. Supp. 1234, 1238 n.5 (E.D. La. 1989) (“The
court disagrees with plaintiff's argument that a reasonable
man would question this court's impartiality merely because
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it would be required to pass on upon the conduct of fellow
district judges.”). Instead, the Court must make a fact-specific
inquiry as to whether “a reasonable person with knowledge
of the facts and circumstances might question a judge's
impartiality.” McGraw v. Moody, No. 4:10CV01846-WRW,
2010 WL 5089761, at *1 (E.D. Ark. Dec. 7, 2010) (finding
recusal not warranted where plaintiff sued fellow district
judge for having allegedly improperly dismissed a prior
lawsuit).
*2 Plaintiff has pointed to no facts that would cause a
reasonable person familiar with this case to question the
undersigned's impartiality. Moreover, as set forth in detail
below, Plaintiff's claims against Judges Siragusa and Payson
are barred by absolute judicial immunity and cannot be
maintained in this or any court. Resolution of the instant
action is thus a straightforward matter of law and does
not require inquiry by the Court into the propriety of
any actions taken by Judges Siragusa or Payson. Under
these circumstances, no reasonable observer could conclude
that partiality towards Judges Siragusa and Payson would
influence the undersigned's assessment of the matter. 1 See
McMurray v. Smith, No. CIV 08-0805 JB/KBM, 2008 WL
8836074, at *1 n.1 (D.N.M. Sept. 29, 2008) (“[T]he Court
notes that it need not recuse itself, even though the Defendants
in this case are fellow judges from the District.... The
Compendium of Selected Ethics Opinions states that a judge
need not recuse from a case involving a party that filed suit
against the judge, where the judicial immunity will be a
complete defense to the action against the judge.” (citation
and quotation omitted)); see also Jones v. City of Buffalo, 867
F. Supp. 1155, 1163 (W.D.N.Y. 1994) (finding that district
judges are not required to “automatically recuse themselves
simply because they or their fellow judges on the court
are named defendants in a truly meritless lawsuit” (citation
omitted)).
For all these reasons, the Court denies Plaintiff's request for
disqualification and reassignment of the matter.
II. Plaintiff's Claims
Because Plaintiff has met the statutory requirements of 28
U.S.C. § 1915(a), he is granted permission to proceed in
forma pauperis. Therefore, under 28 U.S.C. §§ 1915(e)(2)(B)
and 1915A, the Court must review the claims set forth in the
complaint.
A. Legal Standard
Sections 1915 and 1915A “provide an efficient means by
which a court can screen for and dismiss legally insufficient
claims.” Abbas v. Dixon, 480 F.3d 636, 639 (2d Cir. 2007)
(citing Shakur v. Selsky, 391 F.3d 106, 112 (2d Cir. 2004)).
The Court shall dismiss a complaint in a civil action in which
a prisoner seeks redress from a governmental entity, or an
officer or employee of a governmental entity, if the Court
determines that the action (1) is frivolous, malicious, or fails
to state a claim upon which relief may be granted or (2) seeks
monetary relief against a defendant who is immune from
such relief. See 28 U.S.C. § 1915A(b)(1)-(2); 28 U.S.C. §
1915(e)(2)(B). The Federal Rules of Civil Procedure require
a complaint to include enough facts to state a claim for relief
“that is plausible on its face.” Bell Atl. Corp. v. Twombly,
550 U.S. 544, 570, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007).
While the Court will generally afford a pro se plaintiff an
opportunity to amend or to be heard prior to dismissal, Abbas,
480 F.3d at 639 (internal quotation marks omitted), leave to
amend pleadings may be denied when any amendment would
be futile, see Cuoco v. Moritsugu, 222 F.3d 99, 112 (2d Cir.
2000).
Plaintiff brings this action pursuant to 42 U.S.C. § 1983 and
Bivens. “To state a valid claim under 42 U.S.C. § 1983,
the plaintiff must allege that the challenged conduct (1) was
attributable to a person acting under color of state law, and
(2) deprived the plaintiff of a right, privilege, or immunity
secured by the Constitution or laws of the United States.”
Whalen v. County of Fulton, 126 F.3d 400, 405 (2d Cir. 1997).
“Section 1983 itself creates no substantive rights; it provides
only a procedure for redress for the deprivation of rights
established elsewhere.” Sykes v. James, 13 F.3d 515, 519 (2d
Cir. 1993) (citing City of Oklahoma City v. Tuttle, 471 U.S.
808, 816, 105 S.Ct. 2427, 85 L.Ed.2d 791 (1985)).
Bivens “is the federal analog to suits brought against state
officials” under section 1983. Ashcroft v. Iqbal, 556 U.S.
662, 675, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009) (internal
quotation marks omitted); see also Tavarez v. Reno, 54 F.3d
109, 109-10 (2d Cir. 1995) (“[F]ederal courts have typically
incorporated § 1983 law into Bivens actions.”). Thus, “[a]
plaintiff bringing a claim under Bivens must allege that he
has been deprived of a constitutional right by a federal agent
acting under color of federal authority.” Thomas v. Ashcroft,
470 F.3d 491, 496 (2d Cir. 2006) (citing Bivens, 403 U.S. at
389, 91 S.Ct. 1999). “The only remedy available in a Bivens
action is an award for monetary damages from defendants
in their individual capacities.” Higazy v. Templeton, 505
F.3d 161, 169 (2d Cir. 2007). The Supreme Court has
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recognized implied causes of action under Bivens in only
three contexts: (1) unreasonable search and seizure under the
Fourth Amendment, Bivens, 403 U.S. 388, 91 S.Ct. 1999, 29
L.Ed.2d 619 (1971); (2) employment discrimination under
the Due Process Clause of the Fifth Amendment, Davis v.
Passman, 442 U.S. 228, 99 S.Ct. 2264, 60 L.Ed.2d 846
(1979); and (3) inadequate medical treatment of a convicted
prisoner under the Eighth Amendment, Carlson v. Green, 446
U.S. 14, 100 S.Ct. 1468, 64 L.Ed.2d 15 (1980). 2
*3 To establish liability against an official under § 1983
or Bivens, a plaintiff must allege that individual's personal
involvement in the alleged constitutional or federal law
violation. See Hernandez v. Keane, 341 F.3d 137, 144 (2d
Cir. 2003) (“supervisor liability in a § 1983 action depends
on a showing of some personal responsibility, and cannot
rest on respondeat superior”); Thomas, 470 F.3d at 496 (“the
doctrine of respondeat superior does not apply in Bivens
actions”). Because “a plaintiff must plead and prove that
each Government-official defendant, through the official's
own individual actions, has violated the Constitution,” the
personal involvement of each defendant must be plausibly
alleged in the complaint. Tangreti v. Bachmann, 983 F.3d
609, 618 (2d Cir. 2020) (internal quotation marks and citation
omitted).
B. Plaintiff's Allegations
In evaluating the complaint, the Court must accept all factual
allegations as true and must draw all inferences in Plaintiff's
favor. See Larkin v. Savage, 318 F.3d 138, 139 (2d Cir. 2003),
In Plaintiff's criminal case, he was charged by superseding
indictment dated September 2, 2021, with forty counts of
bank fraud, wire fraud, and money laundering in connection
with a scheme to fraudulently obtain three Paycheck
Protection Program loans under the Coronavirus Aid, Relief,
and Economic Security Act (“CARES Act”). Indictment,
United States of America v. Rech, No. 6:21-CR-6080-CJS-
MWP, Dkt. 22 (W.D.N.Y. Sept. 2, 2021). On November 22,
2022, Plaintiff was convicted by jury verdict on all remaining
counts. 3 Jury Verdict, United States of America v. Rech,
No. 6:21-CR-6080-CJS-MWP, Dkt. 117 (W.D.N.Y. Nov. 22,
2022).
In the instant civil action, Plaintiff sues Judges Siragusa and
Payson, as well as Monroe County Court Judge Michael L.
Dollinger (“Judge Dollinger”), the United States of America,
defense attorney Peter Pullano, Esq. (“Pullano”), Pullano's
law firm Tully Rinckey PLLC (“Tully Rinckey”), Monroe
County, the Monroe County Sheriff's Department, the State of
New York, and an “Unknown Named and Quantity of Monroe
County Sheriffs.” (Dkt. 1 at 15). He asserts that his rights were
violated on March 26, 2021, when federal agents executed a
search warrant signed by Judge Payson, during another search
in October of 2021, and during the course of his criminal case.
Id. at 11-13. 4
During the execution of the search warrant, federal agents
seized “legal guns and antiques,” 5 which were outside the
scope of the search warrant and not in plain sight. Id. at 11.
The federal agents gave the firearms to the Monroe County
Sheriff's Department for “safe keeping” against Plaintiff's
will. Id. Judges Payson and Siragusa “ignored” the fact
that Plaintiff's Second and Fourth Amendment rights were
violated during the search and seizure. Id. A few weeks
after this search, Judge Dollinger issued a state court order
suspending Plaintiff's pistol permit and requiring him to
surrender all handguns, long guns, and antique guns to the
Monroe County Sheriff's Department. Id. at 13. Plaintiff
asserts that Judge Dollinger can order a pistol permit
suspension hearing, but he did not have jurisdiction to “rule
on long guns or antiques.” Id.
*4 Plaintiff further alleges that federal agents and the Court
“seized funds in access [sic] of the allegations” against him
and “failed to place protective orders on such funds,” which
prevented them from being used to retain criminal defense
counsel. Id. at 11. The government and the court also failed
to pay interest on those funds. Id. During court appearances
on June 2 and July 15, 2022, Judge Siragusa denied Plaintiff's
request to use his seized funds to retain defense counsel.
Id. at 11-12. Judge Siragusa “deemed [Plaintiff] an ‘indigent
defendant’ ” and stated, “Mr. Rech, you are going to prison.”
Id. at 12. Plaintiff argues that those denials violated his Fifth
and Sixth Amendment rights and his right to a fair trial. Id.
“On multiple occasions,” Judge Siragusa denied Plaintiff's
request that status conferences be held by video, which
exposed Plaintiff to cruel and inhumane conditions during
his travel to court. Id. Plaintiff further alleges that Judges
Payson and Siragusa transferred him multiple times among
four jails in an effort to punish and retaliate against him.
Id. On December 20, 2022, Judge Siragusa “agreed” that
Plaintiff's case had “zero loss and no victims” and that
Plaintiff might receive “0-6 months” at sentencing, but he
refused to issue a written order concerning the violations of
Plaintiff's constitutional rights. Id.
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Pullano was appointed to represent Plaintiff during the
criminal trial. Id. at 13. On November 3, 2022, Judge Siragusa
directed Pullano to provide Plaintiff with documents on jump
drives, but Pullano failed to comply with that order. Id. The
complaint further alleges that Pullano refused to address the
violations of Plaintiff's constitutional rights, committed legal
malpractice, and provided ineffective assistance of counsel.
Id.
C. Sufficiency of Claims
1. Pullano and Tully Rinckey
Plaintiff sues Pullano, his former defense attorney who
represented him in the criminal case, and Pullano's law firm,
Tully Rinckey. (Dkt. 1 at 15). As stated above, “[a] plaintiff
bringing a claim under Bivens must allege that he has been
deprived of a constitutional right by a federal agent acting
under color of federal authority.” Thomas, 470 F.3d at 496
(collecting cases). However, Pullano and Tully Rinckey are
“private parties who cannot, for purposes of Bivens claims
seeking money damages, be deemed government actors when
acting as [Plaintiff's] defense counsel.” Andrews v. Johnson,
No. 21-CV-8310 (LTS), 2022 WL 158538, at *4 (S.D.N.Y.
Jan. 18, 2022) (citing Polk Cnty. v. Dodson, 454 U.S. 312,
324-25, 102 S.Ct. 445, 70 L.Ed.2d 509 (1981)); see also
Harrison v. New York, 95 F. Supp. 3d 293, 328 (E.D.N.Y.
2015) (neither privately-retained defense attorneys nor public
defenders and court-appointed counsel are government actors
by virtue of their positions) (collecting cases).
To pursue a § 1983 or Bivens claim against a private party
in this context, the complaint must plausibly allege (1) “an
agreement” between defense counsel and federal or state
officials (2) “to act in concert” to deprive the plaintiff of a
constitutional right and (3) “an overt act done in furtherance
of that goal causing damages.” Udechukwu v. City of New
York, 333 F. Supp. 3d 161, 169 (E.D.N.Y. 2018) (quoting
Pangburn v. Culbertson, 200 F.3d 65, 72 (2d Cir. 1999)); see
also McCloud v. Jackson, 4 F. App'x. 7, 9 (2d Cir. 2001) (“a
court-appointed attorney is subject to § 1983 liability where
he conspires with state officials to deprive his client of federal
rights”). There is no such allegation of an agreement here;
Pullano is sued only for ineffective assistance of counsel in his
representation of Plaintiff. There are no allegations asserted
against Tully Rinckey. Therefore, Plaintiff has not alleged that
Pullano and Tully Rinckey acted under the color of federal
or state law, and the claims against them are dismissed with
prejudice.
*5 The Court further notes that, while as previously
explained it need not and is not reaching the viability of
Plaintiff's Bivens claims on the merits, see note 2, supra, it is
apparent that any claim against Pullano or Tully Rinckey—
even if actions under the color of federal law had been alleged
—could not be sustained on a Bivens theory.
2. Judicial Defendants, the United
States, and New York State
a. Sovereign Immunity
Plaintiff sues Judges Siragusa and Payson in their official and
individual capacities, as well as the United States. Plaintiff's
claims for monetary damages against the United States and
the federal judges in their official capacities are barred by
sovereign immunity. See F.D.I.C. v. Meyer, 510 U.S. 471, 475,
114 S.Ct. 996, 127 L.Ed.2d 308 (1994). “Absent a waiver,
sovereign immunity shields the Federal Government and its
agencies from suit.” Id. at 475, 486, 114 S.Ct. 996; see also
Robinson v. Overseas Mil. Sales Corp., 21 F.3d 502, 510
(2d Cir. 1994) (“Because an action against ... federal officers
in their official capacities is essentially a suit against the
United States, such suits are also barred under the doctrine
of sovereign immunity, unless such immunity is waived.”).
Therefore, Plaintiff's claims against the United States and his
official capacity claims against Judges Siragusa and Payson
are dismissed without prejudice for lack of jurisdiction.
See F.D.I.C., 510 U.S. at 475, 114 S.Ct. 996 (“Sovereign
immunity is jurisdictional in nature. Indeed, the terms of
the United States’ consent to be sued in any court define
that court's jurisdiction to entertain the suit.” (quotation and
alteration omitted)).
Plaintiff also names the State of New York as a Defendant
in this matter. The Eleventh Amendment bars federal court
claims against the State absent its consent to such suit or an
express statutory waiver of immunity. See Will v. Mich. Dep't
of State Police, 491 U.S. 58, 66, 109 S.Ct. 2304, 105 L.Ed.2d
45 (1989). “This bar exists whether the relief sought is legal
or equitable.” Papasan v. Allain, 478 U.S. 265, 276, 106 S.Ct.
2932, 92 L.Ed.2d 209 (1986). New York has not waived its
sovereign immunity in federal court from suits for damages,
see Trotman v. Palisades Interstate Park Comm'n, 557 F.2d
35, 39-40 (2d Cir. 1977), nor has its sovereign immunity
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been abrogated by Congress for claims brought under § 1983,
see Dube v. State Univ. of N.Y., 900 F.2d 587, 594 (2d Cir.
1990). For these reasons, Plaintiff's claims against the State
of New York, as well as any official capacity claims against
Judge Dollinger, are dismissed without prejudice for lack
of jurisdiction. See Will, 491 U.S. at 71 (“a suit against
a state official in his or her official capacity is not a suit
against the official but rather is a suit against the official's
office.”); Gollomp v. Spitzer, 568 F.3d 355, 366 (2d Cir. 2009)
(collecting cases and citing Kampfer v. County of Fulton, Nos.
94-9110, 94-9201, 107 F.3d 3, 1997 WL 48990, at *1 (2d Cir.
Jan. 15, 1997) for the observation that County Court “is an
arm of the State of New York”).
b. Absolute Judicial Immunity
With respect to Plaintiff's individual capacity claims against
Judges Siragusa, Payson, and Dollinger, it is well settled
that judges generally have absolute immunity from suit for
their judicial actions, see Bliven v. Hunt, 579 F.3d 204, 209
(2d Cir. 2009); Mireles v. Waco, 502 U.S. 9, 11, 112 S.Ct.
286, 116 L.Ed.2d 9 (1991), unless the “complaint alleges
an ongoing violation of federal law” and seeks prospective
declaratory relief, Verizon Md. Inc. v. Pub. Serv. Comm'n of
Md., 535 U.S. 635, 645, 122 S.Ct. 1753, 152 L.Ed.2d 871
(2002). Absolute judicial immunity ensures “that a judicial
officer, in exercising the authority vested in him, shall be
free to act upon his own convictions, without apprehension
of personal consequences to himself.” Bradley v. Fisher, 80
U.S. 13 Wall. 335, 347, 20 L.Ed. 646 (1871). Consequently,
judicial immunity is not defeated by claims of malice or bad
faith. Mireles, 502 U.S. at 11, 112 S.Ct. 286.
*6 Judicial “immunity is overcome in only two sets of
circumstances.” Id. “First, a judge is not immune from
liability for nonjudicial actions, i.e., actions not taken in
the judge's judicial capacity.” Id. “Second, a judge is not
immune for actions, though judicial in nature, taken in the
complete absence of all jurisdiction.” Id. at 12, 112 S.Ct.
286. As to the first circumstance, in determining whether a
judge's actions are “judicial,” the Second Circuit applies a
“functional approach.” Bliven, 579 F.3d at 209. The relevant
factors include the nature of the judge's action, whether the
action typically is performed by a judge, whether the parties
expect the judge to take such action, and whether the parties
dealt with the judge in his judicial capacity. See Stump v.
Sparkman, 435 U.S. 349, 362, 98 S.Ct. 1099, 55 L.Ed.2d 331
(1978). “[A]cts arising out of, or related to, individual cases
before the judge are considered judicial in nature.” Bliven,
579 F.2d at 210.
Considering the factors outlined in Stump, 435 U.S. at 362,
98 S.Ct. 1099, Plaintiff does not assert that Judges Siragusa,
Payson, or Dollinger took actions not ordinarily performed
by a judge. Signing a search warrant, scheduling status
conferences, appointing counsel, presiding over hearings and
trials, and ruling on the requests of parties are all judicial
activities. See Bliven, 579 F.3d at 210. Moreover, the parties
would expect these Defendants to take such actions as judges,
and the complaint does not suggest that Plaintiff dealt with
Judges Siragusa, Payson, or Dollinger outside of their judicial
capacities.
As to the second circumstance, Plaintiff does not plausibly
allege that Judges Siragusa, Payson, or Dollinger took judicial
action in the absence of jurisdiction. Although Plaintiff states
that Judge Dollinger did not have jurisdiction to order the
surrender of certain guns during his pistol permit proceeding,
“the scope of [a] judge's jurisdiction must be construed
broadly where the issue is the immunity of the judge.” Stump,
435 U.S. at 356, 98 S.Ct. 1099. An allegation of an action
taken simply “in excess” of authority does not defeat judicial
immunity. Id. In any event, there is no indication that Judge
Dollinger exceeded his jurisdiction. While New York does
not maintain a “similar licensing scheme for long-barrel rifles
and shotguns (‘long guns’ or ‘longarms’)” as it does for
the possession of “firearms” (“pistols, revolvers, and certain
other handguns”), “the [New York] Penal Law speaks to
continued long gun possession by a person whose pistol
license has been revoked....” Juzumas v. Nassau County, New
York, 33 F.4th 681, 684 (2d Cir. 2022); see also Fusco v.
County of Nassau, 492 F. Supp. 3d 71, 78-79 (E.D.N.Y. 2020)
(“[U]nlike other firearms there is no license requirement for
the purchase or possession of longarms[;] [n]onetheless, the
possession of longarms is regulated in New York.” (internal
citation and quotation marks omitted)).
New York Penal Law § 400.00 provides New York's “firearm
licensing scheme,” with § 400.00(11)(c) addressing long
guns:
In any instance in which a person's
license is suspended or revoked under
paragraph (a) or (b) of this subdivision,
such person shall surrender such
license to the appropriate licensing
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official and any and all firearms, rifles,
or shotguns owned or possessed by
such person shall be surrendered to an
appropriate law enforcement agency
.... In the event such license, firearm,
shotgun, or rifle is not surrendered,
such items shall be removed and
declared a nuisance and any police
officer or peace officer acting pursuant
to his or her special duties is authorized
to remove any and all such weapons.
Fusco, 492 F. Supp. 3d at 79 (emphasis added) (quoting N.Y.
Penal Law § 400.00(11)(c)) (“Longarms are referenced in the
section governing the consequences of license suspension and
revocation....”).
Based on the foregoing, the Court finds that the complaint
has not overcome the judicial immunity afforded to Judges
Siragusa and Payson for their actions during Plaintiff's
criminal case or to Judge Dollinger for his actions during
Plaintiff's pistol permit proceedings in state court, see Aron v.
Becker, 48 F. Supp. 3d 347, 365 (N.D.N.Y. 2014) (“[I]nsofar
as Plaintiff seeks money damages from Judge Becker arising
from or related to the pistol permit application matter, all such
claims are barred by absolute judicial immunity.”). The claims
against these Defendants are dismissed with prejudice.
3. Monroe County and County Employees
*7 Plaintiff names as Defendants Monroe County, the
Monroe County Sheriff's Department, and “Unknown Named
and Quantity of Monroe County Sheriffs.” He alleges that
these Defendants violated his rights under the Second and
Fourteenth Amendments.
First, although Monroe County is a municipality that can be
sued under § 1983, see Monell v. New York City Dep't Soc.
Servs., 436 U.S. 658, 690, 98 S.Ct. 2018, 56 L.Ed.2d 611
(1978), the Monroe County Sheriff's Department is merely
an administrative arm of Monroe County and cannot be sued
as a separate legal entity, see Fusco, 492 F. Supp. 3d at 77
(“The Nassau County Police Department is not a suable entity
because it is an administrative arm of Nassau County.”). The
claims against the Monroe County Sheriff's Department are
therefore dismissed with prejudice.
Second, it is well settled that “a suit against a municipal
officer in his or her official capacity is functionally equivalent
to a suit against the entity of which the officer is an agent.”
Baines v. Masiello, 288 F. Supp. 2d 376, 384 (W.D.N.Y.
2003). Therefore, any official capacity claims against the
unidentified Monroe County Sheriffs are redundant of
Plaintiff's claims against Monroe County and must be
dismissed with prejudice. See Alger v. County of Albany, 489
F. Supp. 2d 155, 165 (N.D.N.Y. 2006) (dismissing a “claim
against an individual in her official capacity [as] nothing more
than a claim against the municipality itself”).
Third, Monroe County may not be held liable under § 1983
unless the challenged action was performed pursuant to a
county policy or custom. See Monell, 436 U.S. at 694, 98 S.Ct.
2018. Municipalities are not subject to § 1983 liability solely
on the doctrine of respondeat superior. See Collins v. City
of Harker Heights, 503 U.S. 115, 121, 112 S.Ct. 1061, 117
L.Ed.2d 261 (1992); Monell, 436 U.S. at 694, 98 S.Ct. 2018.
To hold a municipality liable in a § 1983 action, “a plaintiff
is required to plead and prove three elements: (1) an official
custom or policy that (2) causes the plaintiff to be subjected
to (3) a denial of a constitutional right.” Zahra v. Town of
Southold, 48 F.3d 674, 685 (2d Cir. 1995) (internal quotation
marks omitted).
Plaintiff fails to articulate how the County's receipt of the
evidence seized in his criminal case constitutes (1) the denial
of a constitutional right (2) that occurred pursuant to an
official custom or policy. To the extent that the allegations
can be construed to assert a claim against Monroe County
based on Judge Dollinger's order that Plaintiff surrender
certain guns upon his pistol permit suspension, he fails to
state a claim on this basis. As stated above, § 400.00(11)
of the New York Penal Law provides for the revocation
and suspension of firearms licenses and surrender of long
guns to an appropriate law enforcement agency. N.Y.P.L.
§ 400.00(11)(c)). Consequently, Plaintiff does not allege a
county policy on this ground. See Juzumas, 33 F.4th at 688
(“In requiring [plaintiff] to surrender his longarms after his
conviction, [the] County was reasonably applying state law,
not crafting its own independent firearm surrender policy
untethered to the Penal Law.”). Plaintiff's claims against
Monroe County are dismissed with prejudice.
Plaintiff's related claims against “Unknown Named and
Quantity of Monroe County Sheriffs” must also be dismissed
as wholly conclusory and for lack of personal involvement.
The Complaint is devoid of factual allegations against
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these individuals, and Plaintiff merely refers to them as
“officers of the court” in connection to his pistol permit
proceeding. Liability exists only where the “defendant,
through the official's own individual actions, has violated the
Constitution.” Tangreti, 983 F.3d at 618; Ashcroft, 556 U.S. at
676, 129 S.Ct. 1937. Plaintiff's bare pleading does not satisfy
those requirements.
III. Denial of Leave to Amend
*8 In general, district courts should give pro se litigants
leave to amend their claims before facing dismissal. Cuoco,
222 F.3d at 112 (“[T]he court should not dismiss without
granting leave to amend at least once when a liberal reading of
the complaint gives any indication that a valid claim might be
stated.”). However, leave to amend is properly denied where
amendment would be futile. Id.
Here, the Court dismisses Plaintiff's claims against: Judges
Siragusa, Payson, and Dollinger under the doctrine of
absolute judicial immunity; Pullano and Tully Rinckey for
lack of federal or state action and/or lack of personal
involvement; the Monroe County Sheriff's Department as an
arm of the County; the State of New York and the United
States pursuant to sovereign immunity; Monroe County for
lack of Monell liability; and “Unknown Named and Quantity
of Monroe County Sheriffs” for lack of personal involvement
in any unconstitutional conduct.
Here, “[t]he problem with [Plaintiff's] causes of action is
substantive; better pleading will not cure it.” Cuoco, 222 F.3d
at 112. All of Plaintiff's claims are barred by immunity and/
or are based on a meritless legal theory, which cannot be
remedied in a second pleading. Denial of leave to amend is
not an abuse of discretion “[w]here it appears that granting
leave to amend is unlikely to be productive.” Ruffolo v.
Oppenheimer & Co., 987 F.2d 129, 131 (2d Cir. 1993).
Moreover, it is clear to the Court that this is Plaintiff's second
attempt to challenge his pending criminal prosecution in a §
1983 or Bivens action. In Heck v. Humphrey, the Supreme
Court held that
in order to recover damages for
allegedly unconstitutional conviction
or imprisonment, or for other harm
caused by actions whose unlawfulness
would render a conviction or sentence
invalid, a § 1983 plaintiff must
prove that the conviction or sentence
has been reversed on direct appeal,
expunged by executive order, declared
invalid by a state tribunal authorized
to make such determination, or called
into question by a federal court's
issuance of a writ of habeas corpus,
28 U.S.C. § 2254. A claim for
damages bearing that relationship to
a conviction or sentence that has not
been so invalidated is not cognizable
under § 1983.
512 U.S. 477, 484, 114 S.Ct. 2364, 129 L.Ed.2d 383
(1994). “Subsequently, the Supreme Court and the Second
Circuit extended Heck’s reach to section 1983 lawsuits
brought during pending criminal prosecutions.” Dawson
v. Lippiccolo, 590 F. Supp. 3d 514, 517 (E.D.N.Y.
2022) (finding plaintiff's challenge to his ongoing criminal
prosecution based on his claim of an “illegal search” to be
barred by Heck and denying leave to amend). Thus, any
claims that would render invalid Plaintiff's conviction and
confinement would also be barred by Heck. For all these
reasons, leave to replead is denied.
CONCLUSION
Plaintiff has met the statutory requirements of 28 U.S.C. §
1915(a), and his request to proceed in forma pauperis (Dkt.
2) is therefore granted. For the reasons discussed above,
Plaintiff's request for disqualification of the undersigned (Dkt.
5) is denied and the complaint is dismissed without leave to
amend. Plaintiff's request for the appointment of counsel is
denied as moot.
The Court hereby certifies, pursuant to 28 U.S.C. § 1915(a)
(3), that any appeal from this Order would not be taken in
good faith, and leave to appeal to the Court of Appeals as a
poor person is denied. Coppedge v. United States, 369 U.S.
438, 444-45, 82 S.Ct. 917, 8 L.Ed.2d 21 (1962). Further
requests to proceed on appeal as a poor person should be
directed, on motion, to the United States Court of Appeals for
the Second Circuit, in accordance with Rule 24 of the Federal
Rules of Appellate Procedure.
*9 SO ORDERED.
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All Citations
Not Reported in Fed. Supp., 2023 WL 2559409
Footnotes
1 To be clear, this is not to suggest that if the merits did need to be reached that the undersigned would be
required to recuse herself.
2 The Court notes that Plaintiff's Bivens claims for alleged violations during his criminal proceedings do not
fall into one of the three recognized contexts and would therefore constitute an expansion of Bivens. It is
clear from recent Supreme Court decisions, see Egbert v. Boule, ––– U.S. ––––, 142 S. Ct. 1793, 1803, 213
L.Ed.2d 54 (2022), that expanding the Bivens doctrine is “disfavored,” Ziglar v. Abbasi, 582 U.S. 120, 137 S.
Ct. 1843, 1857, 198 L.Ed.2d 290 (2017). However, because this action is being dismissed on other grounds,
the Court need not address the availability of a remedy under Bivens.
3 Three counts were dismissed prior to trial on the government's motion. United States v. Rech, No. 6:21-
CR-6080-CJS-MWP, Dkt. 106 (W.D.N.Y. Nov. 9, 2022).
4 The Court notes that Plaintiff has already attempted to sue Judge Payson for alleged violations during his
criminal case that stem from the same allegations asserted here—that she signed a search warrant resulting
in the illegal search and seizure. See Complaint, Rech v. Roth, No. 6:22-CV-6299-CJS, Dkt. 1 at 13 (W.D.N.Y.
Jul. 8, 2022). In Rech v. Roth, Plaintiff also asserts that federal and county officials illegally seized items on
March 21, 2021, that they “used” to “obtain another search and seizure warrant illegally from Chili Town Court”
on October 28, 2021 and “took legal items ... left behind from the previous search warrant.” Id. at 5, 13-14.
The claims against Judge Payson were dismissed with prejudice on initial screening and Plaintiff was granted
leave to amend his other claims. Rech v. Roth, No. 6:22-CV-6299-CJS, Dkt. 3 (W.D.N.Y. Aug. 1, 2022).
5 “Antiques” presumably refers to antique guns.
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Robinson v. Williams, Not Reported in Fed. Supp. (2023)
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2023 WL 3352758
Only the Westlaw citation is currently available.
United States District Court, N.D. New York.
Sheila ROBINSON, Plaintiff,
v.
Mark WILLIAMS, et al., Defendants.
6:22-CV-0982 (GTS/ML)
|
Signed January 12, 2023
Attorneys and Law Firms
SHEILA ROBINSON, Plaintiff, Pro Se, 939 Ontario Avenue,
Niagara Falls, New York 14301.
ORDER and REPORT-RECOMMENDATION
MIROSLAV LOVRIC, United States Magistrate Judge
*1 The Clerk has sent a pro se complaint in the above
captioned action together with (1) an application to proceed
in forma pauperis, and (2) an application to appoint counsel,
filed by Sheila Robinson (“Plaintiff”) to the Court for review.
(Dkt. Nos. 1, 2, 5.) For the reasons discussed below, I (1) grant
Plaintiff's in forma pauperis application, (2) deny Plaintiff's
motion for appointment of counsel, and (3) recommend that
Plaintiff's Complaint be dismissed in its entirety (a) in part
with leave to amend, and (b) in part without leave to amend.
(Dkt. Nos. 1, 2, 5.)
I. BACKGROUND
Construed as liberally 1 as possible, Plaintiff's Complaint
alleges that she formed clothing brands and has since been
targeted and harassed by defendants Mark Williams, Kyle
Piersall, John De Traglia, Joseph Aiello, Brian Baye, Marissa
Vomer, K. Phillips, Benny Grullon, Derek Schultz, Reginald
Sanders, Brian French, Hiram Rios, Louis L. Stanton,
John Does, Letitia James, Chuck Schumer, Amazon.com,
Jeff Bezos, Facebook.com, Mark Zuckerberg, Google.com,
Sergin Brin, Larry Page, Sundar Pichai, Zazzle.com,
Robert Beaver, Cafepress.com, Bob Marino, Fred Durham,
Redbubble.com, Barry Newstead, Martin Hopskin, Utica
New York Police Department, and City of Utica in New York
State (collectively “Defendants”). (See generally Dkt. No. 1.)
More specifically, Plaintiff alleges that she frequented Miller
Park in Utica, New York. (Dkt. No. 1 at 5.) Plaintiff alleges
that when she would go to Miller Park, Utica police officers
would also be present in the park and that the police officers’
presence in the park at the same time as Plaintiff put her in
“fear of [her] safety and well being” such that she “stopped
going to [the] park in fear of being shot by the [U]tica
police.” (Id.)
Plaintiff alleges that, at some point in time, she called the
police regarding issues she was having with third-party, Biory
Chavez Tinco. (Id.) Plaintiff alleges that she sought to pursue
charges against Mr. Tinco and to obtain a restraining order
that would protect her from Mr. Tinco, but that the Utica
police officers refused to arrest Mr. Tinco or assist Plaintiff in
obtaining an order of protection. (Id. at 5-6.)
Plaintiff alleges that, at some point in time, she went to
get her mail and an unnamed maintenance person “came
out and provoked [P]laintiff into accidentally macing,” 2
the maintenance person then called the police, Plaintiff was
arrested, and paid a $300 fine. (Id. at 6.)
Plaintiff alleges that a building located next to her residence
is a nuisance because it is a gathering place for drug users
and dealers. (Id. at 6.) Plaintiff alleges that she sought
police assistance “multiple times” to address individuals from
the property next door who trespassed on to her property.
(Id.) However, Plaintiff alleges that the Utica police refused
to arrest individuals that criminally trespassed and did not
conduct warrant checks on the trespassers. (Id. at 6-7.)
*2 Plaintiff alleges that Defendant Derek Schultz filed
a false statement that Plaintiff was suffering from mental
illness. (Id. at 7.) Plaintiff alleges that Defendant Marissa
Vomer filed a false statement stating that Plaintiff was
rambling. (Id.) Plaintiff alleges that Defendant Reginald
Sanders retaliated against Plaintiff by refusing to arrest third-
party T. Jones and stating to Plaintiff “you wanted Utica police
fired[.] [W]hy should we help you[?]” (Id.)
Plaintiff alleges that Defendant Louis Stanton was the
assigned judge to another one of her civil cases and that
he conspired to violate Plaintiff's right to a jury trial. (Id.
at 8.) More specifically, Plaintiff alleges that Defendant
Stanton dismissed Plaintiff's civil case against “tech-giants”
via electronic notice so that Plaintiff would not receive the
notice in time to appeal the decision. (Id.)
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Plaintiff alleges that she contacted the New York State
Attorney General's office multiple times regarding the
harassment she experienced by “one or more of the tech-
giants” and the stalking that she experienced at Miller Park by
the Utica police officers but that the New York State Attorney
General's office informed her that it does not investigate those
matters and directed Plaintiff to obtain her own attorney. (Id.
at 9-10.)
Plaintiff alleges that unnamed “New York State Officials”
deprived her of “Erap arrears” by incorrectly and
“intentionally posting online that [P]laintiff had not uploaded
[the] required documents.” (Id. at 10-11.)
Plaintiff alleges that she contacted Defendant Chuck Schumer
to help her “stop and collect the unauthorized apparel
from [A]mazon warehouses” after Plaintiff saw that her
clothing line brand was being improperly sold by Defendant
Amazon.com. (Id. at 11.) Plaintiff alleges that Defendant
Schumer failed to assist her because his family members are
employed by Defendant Amazon.com. (Id.)
Plaintiff alleges that third-party Yahoo.com and Defendants
Amazon.com, Facebook.com, Google.com, Zazzle.com,
Cafepress.com, Redbubble.com, Jeff Bezos, and Mark
Zuckerberg, conspired to target, cyberstalk, and stalk Plaintiff
to interfere with her civil right to make online profits. (Id.
at 11.) Plaintiff also alleges that Defendants Amazon.com,
Facebook.com, Google.com, Zazzle.com, Cafepress.com,
Redbubble.com, Jeff Bezos, and Mark Zuckerberg racially
targeted her because she is a Black American and they are
white or of Asian descent. (Id. at 12.)
Based on these factual allegations, Plaintiff appears to assert
the following ten claims: (1) a claim against Defendant
Utica Police Department for its conduct at Miller Park in
violation of the Fourth Amendment and 42 U.S.C. § 1983;
(2) a claim against Defendant Utica Police Department
for its refusal to arrest Mr. Tinco and obtain an order of
protection in favor of Plaintiff against Mr. Tinco in violation
of the Fourteenth Amendment and 42 U.S.C. § 1983; (3)
a claim against Defendant Utica Police Department for its
refusal to arrest individuals who trespassed on Plaintiff's
residence in violation of the Fourteenth Amendment and 42
U.S.C. § 1983; (4) a claim against Defendant Stanton for
violating Plaintiff's due process right to a jury trial pursuant
to the Fourteenth Amendment and 42 U.S.C. § 1983; (5)
a claim against Defendant Stanton for sending a dismissal
notice electronically in violation of the First Amendment
and 42 U.S.C. § 1983; (6) a claim against the New York
State Attorney General's Office for failure to investigate and
enforce the laws in violation of the Fourteenth Amendment
and 42 U.S.C § 1983; (7) a claim against unnamed New York
State officials for interfering with Plaintiff's right to equal
housing in violation of the Fourteenth Amendment and 42
U.S.C. § 1983; (8) a claim against Defendant Schumer for
violating Plaintiff's right to equal protection under the law
pursuant to the Fourteenth Amendment and 42 U.S.C. § 1983;
(9) a claim against Yahoo.com and Defendants Amazon.com,
Facebook.com, Google.com, Zazzle.com, Cafepress.com,
Redbubble.com, Jeff Bezos, and Mark Zuckerberg for
conspiracy to deprive Plaintiff equal protection under the law
pursuant to the Fourteenth Amendment and 42 U.S.C. § 1983;
and (10) a claim against “the Tech-Giant gang” for stalking,
cyberstalking, and harming Plaintiff. (See generally Dkt. No.
1.)
*3 As relief, Plaintiff seeks, inter alia, $100,000,000,000 in
compensatory damages, punitive damages in the amount of
$300,000,000,000, and costs and attorney's fees. (Id.)
II. PLAINTIFF'S APPLICATION TO PROCEED IN
FORMA PAUPERIS
“When a civil action is commenced in a federal district court,
the statutory filing fee, currently set at $402, must ordinarily
be paid. 28 U.S.C. § 1914(a). A court is authorized, however,
to permit a litigant to proceed in forma pauperis status if a
party “is unable to pay” the standard fee for commencing an
action. 28 U.S.C. § 1915(a)(1). 3 After reviewing Plaintiff's in
forma pauperis application (Dkt. No. 2), the Court finds that
Plaintiff meets this standard. Therefore, Plaintiff's application
to proceed in forma pauperis is granted. 4
III. LEGAL STANDARD FOR INITIAL REVIEW OF
THE COMPLAINT
Having found that Plaintiff meets the financial criteria for
commencing this action in forma pauperis, the Court must
consider the sufficiency of the allegations set forth in the
Complaint in light of 28 U.S.C. §§ 1915(e). Section 1915(e)
of Title 28 of the United States Code directs that, when a
plaintiff seeks to proceed in forma pauperis, “the court shall
dismiss the case at any time if the court determines that—...
(B) the action ... (i) is frivolous or malicious; (ii) fails to state a
claim on which relief may be granted; or (iii) seeks monetary
relief against a defendant who is immune from such relief.”
28 U.S.C. § 1915(e)(2)(B). 5
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Additionally, when reviewing a complaint, a court may also
look to the Federal Rules of Civil Procedure. Rule 8 of the
Federal Rules of Civil Procedure provides that a pleading
which sets forth a claim for relief shall contain, inter alia, “a
short and plain statement of the claim showing that the pleader
is entitled to relief.” See Fed. R. Civ. P. 8(a)(2). The purpose of
Rule 8 “is to give fair notice of the claim being asserted so as
to permit the adverse party the opportunity to file a responsive
answer, prepare an adequate defense and determine whether
the doctrine of res judicata is applicable.” Powell v. Marine
Midland Bank, 162 F.R.D. 15, 16 (N.D.N.Y. 1995) (McAvoy,
C.J.) (quoting Brown v. Califano, 75 F.R.D. 497, 498 (D.D.C.
1977)).
*4 A court should not dismiss a complaint if the plaintiff
has stated “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.” Ashcroft v. Iqbal, 556 U.S. 662, 678
(2009). While the court should construe the factual allegations
in the light most favorable to the plaintiff, “the tenet that a
court must accept as true all of the allegations contained in
a complaint is inapplicable to legal conclusions.” Ashcroft,
556 U.S. at 678. “Threadbare recitals of the elements of a
cause of action, supported by mere conclusory statements, do
not suffice.” Id. (citing Twombly, 550 U.S. at 555). Rule 8
“demands more than an unadorned the-defendant-unlawfully-
harmed-me accusation.” Id. Thus, a pleading that contains
only allegations which “are so vague as to fail to give the
defendants adequate notice of the claims against them” is
subject to dismissal. Sheehy v. Brown, 335 F. App'x 102, 104
(2d Cir. 2009).
IV. ANALYSIS
In addressing the sufficiency of a plaintiff's complaint, the
court must construe his pleadings liberally. Sealed Plaintiff v.
Sealed Defendant, 537 F.3d 185, 191 (2d Cir. 2008). Having
reviewed Plaintiff's Complaint with this principle in mind, I
recommend that all causes of action be dismissed.
A. Claims Against the Utica Police Department
“Although a municipality is subject to suit pursuant to section
1983, see Monell v. Dep't of Soc. Servs., 436 U.S. 658, 690
(1978), a municipal police department does not have the
capacity to be sued as an entity separate from the municipality
in which it is located.” White v. Syracuse Police Dep't,
18-CV-1471, 2019 WL 981850, at *3 (N.D.N.Y. Jan. 7,
2019) (Peebles, M.J.) (citing Krug v. Cnty. of Rennselaer,
559 F. Supp. 2d 223, 247 (N.D.N.Y. 2008) (McAvoy, J.);
Turczyn ex rel. McGregor v. City of Utica, 13-CV-1357, 2014
WL 6685476, at *2 (N.D.N.Y. Nov. 26, 2014) (Sharpe, J.);
Hoisington v. Cnty. of Sullivan, 55 F. Supp. 2d 212, 214
(S.D.N.Y. 1999) (“Under New York law, a department of a
municipal entity is merely a subdivision of the municipality
and has no separate legal existence. Therefore, municipal
departments like the Department of Social Services are not
amenable to suit and no claims lie directly against the
Department.”)), report and recommendation adopted by 2019
WL 974824 (N.D.N.Y. Feb. 28, 2019) (Suddaby, C.J.).
As a result, I recommend that all claims against Defendant
Utica Police Department be dismissed for failure to state a
claim upon which relief may be granted.
Moreover, to the extent that the Court is inclined—for the sake
of judicial efficiency—to review Plaintiff's claims against
Defendant Utica Police Department, as against Defendant
City of Utica, I still recommend dismissal of Plaintiff's claims
for failure to state a claim upon which relief may be granted.
A municipality may only be named as a defendant in certain
circumstances. Pursuant to the standard for establishing
municipal liability laid out in Monell v. Dep't of Soc. Servs.
of the City of New York, 436 U.S. 658 (1978), in order to set
forth a cognizable claim for municipal liability under Section
1983, a plaintiff must plead and prove that a deprivation
of his constitutional rights “was caused by a governmental
custom, policy, or usage of the municipality.” Jones v. Town
of E. Haven, 691 F.3d 72, 80 (2d Cir. 2012) (citing Monell,
436 U.S. 658); see also Vippolis v. Vill. of Haverstraw, 768
F.2d 40, 44 (2d Cir. 1985) (“The plaintiff must first prove
the existence of a municipal policy or custom in order to
show that the municipality took some action that caused his
injuries beyond merely employing the misbehaving officer.”).
A municipality may be liable for deprivation of constitutional
rights under Section 1983 for policies or customs resulting
in inadequate training, supervision, or hiring when the failure
to train, supervise, or hire amounts to deliberate indifference
to the rights of those with whom municipal employees will
come into contact. See City of Canton, Ohio v. Harris, 489
U.S. 378, 388-89 (1989). A plaintiff must also establish a
causal connection—an affirmative link—between the policy
and the deprivation of his constitutional rights. Oklahoma v.
Tuttle, 471 U.S. 808, 823 (1985) (plurality opinion). Indeed,
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municipalities may only be held liable when the municipality
itself deprives an individual of a constitutional right; it “may
not be held liable on a theory of respondeat superior.” Jeffes
v. Barnes, 208 F.3d 49, 56 (2d Cir. 2000).
*5 Critically, “a prerequisite to municipal liability under
Monell is an underlying constitutional violation by a state
actor.” Henry-Lee v. City of New York, 746 F. Supp. 2d
546, 567 (S.D.N.Y. 2010). As the Second Circuit has noted,
“Monell does not provide a separate cause of action for
the failure by the government to train its employees; it
extends liability to a municipal organization where that
organization's failure to train, or the policies or customs
that it has sanctioned, led to an independent constitutional
violation.” Segal v. City of New York, 459 F.3d 207, 219 (2d
Cir. 2006); see also id. (noting that once a “district court
properly [finds] no underlying constitutional violation, its
decision not to address the municipal defendants’ liability
under Monell [is] entirely correct”).
1. Miller Park
I recommend that Plaintiff's claims with respect to Miller
Park be dismissed for failure to state a claim upon which
relief may be granted. The allegation that police officers
are merely present in a public space, such as a park, at the
same time as Plaintiff fails to allege that Plaintiff's rights
were violated in any way. See Hickombottom v. City of
Chicago, 739 F. Supp. 1173, 1179 (N.D. Ill. 1990) (police
surveillance of plaintiff's apartment did not violate the Fourth
Amendment in that plaintiff had no reasonable expectation
of privacy as to his comings and goings); Phillips v. City of
San Jose, C-94-20468, 1994 WL 706213, at *4 (N.D. Cal.
Dec. 13, 1994) (allegations that the police officers followed
and observed plaintiff in public areas were not sufficiently
egregious to constitute a due process violation under the
Fourteenth Amendment).
Moreover, courts in this Circuit have routinely dismissed
similar claims as factually frivolous. See McNaughton
v. de Blasio, 20-CV-6991, 2020 WL 5983100, at *4-5
(S.D.N.Y. Oct. 8, 2020) (dismissing as frivolous the plaintiff's
allegations including, inter alia, that the N.Y.P.D. was
enlisting parents and their children in an elaborate scheme
to lure the plaintiff into committing pedophilic acts); Gamez
v. U.S. Dist. Court Eastern and Southern Dist. of-Tyranny,
New York, 11-CV-4068, 2011 WL 3949807, at *2 (E.D.N.Y.
Sept. 6, 2011) (dismissing as factually frivolous, the plaintiff's
claims that the police were stalking, ambushing, and illegally
surveilling him). “[A finding of] factual frivolousness is
appropriate when the facts alleged rise to the level of
the irrational or the wholly incredible, whether or not
there are judicially noticeable facts available to contradict
them.” Denton v. Hernandez, 504 U.S. 25, 33 (1992). The
term “frivolous” embraces “not only the inarguable legal
conclusion, but also the fanciful factual allegation.” Neitzke
v. Williams, 490 U.S. 319, 325 (1989). Plaintiff's allegations,
even under a liberal reading that the courts give pro se
pleadings, easily qualify as frivolous under the standard
asserted above. See Denton, 504 U.S. at 33.
As a result, I recommend that Plaintiff's claims regarding
Miller Park be dismissed for failure to state a claim upon
which relief may be granted and, in the alternative, for
frivolity.
2. Failure to Arrest Mr. Tinco
To the extent that Plaintiff's Complaint asserts a claim based
on an alleged failure to file charges against Mr. Tinco or
help Plaintiff obtain an order of protection against Mr. Tinco,
I recommend that it be dismissed. Plaintiff does not have
standing to compel any law enforcement agency to prosecute
suspected criminal acts because there is no private right of
action to enforce state or federal criminal statutes. See Linda
R.S. v. Richard D., 410 U.S. 614, 619 (1973) (“[A] private
citizen lacks a judicially cognizable interest in the prosecution
or nonprosecution of another.”); see also Walker v. CIBC Ltd.,
20-CV-1337, 2021 WL 3518439, at *5 (N.D.N.Y. Apr. 13,
2021) (Hummel, M.J.) (“It appears plaintiff is either seeking
the criminal prosecution of an individual or individuals or a
law enforcement investigation, which is beyond this Court's
jurisdiction.”), report-recommendation adopted by 2021 WL
3204860 (N.D.N.Y. July 29, 2021) (McAvoy, J.); McFadden
v. Ortiz, 12-CV-1244, 2013 WL 1789593, at *3 (N.D.N.Y.
Apr. 26, 2013) (D'Agostino, J.) (holding that “there is no
private right of action to enforce either state or federal
criminal statutes.”).
*6 As a result, I recommend that Plaintiff's claims regarding
the failure to arrest Mr. Tinco be dismissed.
3. Failure to Arrest Trespassers
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For the reasons set forth above in Part IV.A.2. of this Order
and Report-Recommendation, I recommend that Plaintiff's
claims regarding the failure to arrest alleged trespassers be
dismissed for lack of standing.
B. Claims Against Defendant Stanton
Plaintiff's Complaint appears to assert claims against
Defendant Stanton in his individual and official capacity, for
actions he allegedly took in his position as Senior United
States District Judge of the Southern District of New York.
(Dkt. No. 1 at 8-9.)
It is well settled that “officials acting in a judicial capacity
are entitled to absolute immunity against § 1983 actions,
and this immunity acts as a complete shield to claims
for money damages.” Montero v. Travis, 171 F.3d 757,
760 (2d Cir. 1999); see also Mireles v. Waco, 502 U.S.
9, 9-10 (1991) (citations omitted) (“A long line of this
Court's precedents acknowledges that, generally, a judge is
immune from a suit for money damages. Although unfairness
and injustice to a litigant may result on occasion, ‘it is a
general principle of the highest importance to the proper
administration of justice that a judicial officer, in exercising
authority vested in him, shall be free to act upon his own
convictions, without apprehension of personal consequences
to himself.”); Mahapatra v. Comstock, 97-CV-7129, 1998
WL 88054, at *1 (2d Cir. Feb. 26, 1998) (“[T]he district
court properly dismissed the claims for damages based on
absolute immunity. Judges are shielded from liability for
civil damages for judicial acts performed in their judicial
capacities.”); McKnight v. Middleton, 699 F. Supp. 2d 507,
523 (E.D.N.Y. 2010) (“It is well settled that judges generally
have absolute immunity from suits for money damages for
their judicial actions.”). “A judge will not be deprived of
immunity because the action he took was in error, was done
maliciously, or was in excess of his authority; rather, he will
be subject to liability only when he has acted in the clear
absence of all jurisdiction.” Stump v. Sparkman, 435 U.S. 349,
357 (1978).
Plaintiff's allegations regarding Defendant Stanton appear to
relate to actions he took as judge, while presiding over another
civil proceeding initiated by Plaintiff. (See generally Dkt. No.
1.) The Complaint is devoid of facts plausibly suggesting
that Defendant Stanton took any action as an individual, and
therefore also fails to allege that he acted in the clear absence
of all jurisdiction. As a result, I recommend that the claims
against Defendant Stanton be dismissed in their entirety based
on the doctrine of absolute judicial immunity.
C. Claims Against New York State Attorney General's
Office
As set forth above in Part IV.A.2. of this Order and
Report-Recommendation, this Court does not have authority
to commence its own investigation, commence criminal
prosecution, compel a law enforcement agency to investigate
suspected criminal activity, or compel a prosecutor to
prosecute. Prosecutors possess discretionary authority to
bring criminal actions, and they are “immune from control or
interference by citizen or court.” Conn. Action Now, Inc. v.
Roberts Plating Co., 457 F.2d 81, 87 (2d Cir. 1972).
*7 As a result, I recommend that Plaintiff's claims against
the New York State Attorney General's Office be dismissed.
D. Claims Against Unnamed New York State Officials
I recommend that Plaintiff's claims against unnamed New
York State officials regarding the denial of her Emergency
Rental Assistance Program (“ERAP”) housing application, be
dismissed.
First, to the extent that those claims are asserted against
employees of New York State in their official capacity, they
are barred by the Eleventh Amendment. “[A]s a general rule,
state governments may not be sued in federal court unless they
have waived their Eleventh Amendment immunity, or unless
Congress has abrogated the states’ Eleventh Amendment
immunity....” Gollomp v. Spitzer, 568 F.3d 355, 366 (2d Cir.
2009).
New York 6 has not waived its Eleventh Amendment
immunity to suit in federal court, and Congress did not
abrogate the states’ immunity in enacting 42 U.S.C. § 1983.
See Trotman v. Palisades Interstate Park Comm'n, 557 F.2d
35, 40 (2d Cir. 1977). The Eleventh Amendment therefore
bars Plaintiff's § 1983 claims against New York State officials
in their official capacity as employees of New York State from
proceeding in federal court.
Second, Courts have held that there is no private cause of
action for the denial of an application for federally funded
emergency rental assistance program funds. 7 See Wexler
v. Dep't of Children and Families, 22-CV-1111, 2022 WL
5250140, at *2 (M.D. Fla. Sept. 19, 2022) (recommending
dismissal of the plaintiffs’ claims alleging that their federal
Emergency Rental Assistance Program applications were
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mishandled and misappropriated and holding that “there is
no express or implied cause of action under the CAA and
the undersigned is aware of no Court ... that has found
otherwise”); Turner v. Hamilton Cnty. Trustee Assn., 22-
CV-0275, 2022 WL 1606289, at *4 (S.D. Ind. May 20,
2022) (dismissing the plaintiff's claim that his application for
federally funded Emergency Rental Assistance Program was
improperly denied as fraudulent and holding that “there is
no private right of action created, expressly or impliedly, by
Congress in the CAA or the CARES Act.”).
As a result, I recommend that Plaintiff's claims against
unnamed New York State officials for denial of her ERAP
application, be dismissed based on the doctrine of immunity
pursuant to the Eleventh Amendment and because it fails to
state a claim upon which relief may be granted.
E. Claims Against Defendant Schumer
The Fourteenth Amendment's Equal Protection Clause
mandates equal treatment under the law. Essential to that
protection is the guarantee that similarly situated persons be
treated equally. City of Cleburne, Tex. v. Cleburne Living Ctr.,
473 U.S. 432, 439 (1985). “In order to establish an equal
protection violation, the plaintiffs must show that they were
treated differently than other people in similar circumstances
and must establish that such unequal treatment was the result
of intentional and purposeful discrimination.” Chaney v.
Koupash, 04-CV-0126, 2008 WL 5423419, at *20 (N.D.N.Y.
Dec. 30, 2008) (Homer, M.J.) (citing Myers v. Barrett, 95-
CV-1534, 1997 WL 151770, at *3 (N.D.N.Y. Mar. 28, 1997)
(Pooler, J.)). In addition, a valid equal protection claim may
be brought by a “class of one” “where the plaintiff alleges
that she [or he] has been intentionally treated differently from
others similarly situated and that there is no rational basis for
the difference in treatment.” Vill. of Willowbrook v. Olech, 528
U.S. 562, 564 (2000); Neilson v. D'Angelis, 409 F.3d 100, 105
(2d Cir. 2005).
*8 Plaintiff fails to allege any facts plausibly suggesting
that she was treated differently from similarly situated
individuals or any other individuals. Vague and conclusory
allegations, are insufficient to plausibly suggest an equal
protection violation. See De Jesus v. Sears Roebuck & Co.,
Inc., 87 F.3d 65, 70 (2d Cir. 1996); see Byng v. Delta
Recovery Servs., LLC., 13-CV-0733, 2013 WL 3897485,
at *15, n. 5 (N.D.N.Y. July 29, 2013) (D'Agostino, J.)
(finding that Attica inmate alleged no facts in the complaint
to indicate he was similarly situated to anyone or that
someone else was treated differently than he was). The
Complaint is devoid of allegations plausibly suggesting that
Plaintiff was similarly situated to anyone or that she was
treated differently. Accordingly, I recommend that Plaintiff's
Fourteenth Amendment Equal Protection claims against
Defendant Schumer be dismissed for failure to state a claim
upon which relief may be granted. 8
Further, to the extent that Plaintiff attempts to state conspiracy
claims pursuant to 42 U.S.C. §§ 1985, 1986, I recommend
that they be dismissed for failure to state a claim upon which
relief may be granted.
“[T]o make out a violation of § 1985(3) ..., the plaintiff must
allege and prove four elements: (1) a conspiracy; (2) for the
purpose of depriving, either directly or indirectly, any person
or class of persons of the equal protection of the laws, or of
equal privileges and immunities under the laws; and (3) an
act in furtherance of the conspiracy; (4) whereby a person is
either injured in his person or property or deprived of any
right or privilege of a citizen of the United States.” United
Brotherhood of Carpenters & Joiners of Am., Loc. 610, AFL-
CIO v. Scott, 103 S. Ct. 3352, 3356 (1983). A “conspiracy”
requires, for purposes of Section 1985, “a plurality of actors
committed to a common goal.” Frooks v. Town of Cortlandt,
997 F. Supp. 438, 456 (S.D.N.Y. 1998), aff'd, 182 F.3d 899
(2d Cir. 1999).
In addition, a claim pursuant to Section 1985 requires that
a plaintiff allege “some racial or [ ] otherwise class-based
animus behind the conspirators’ action.” Palmieri v. Lynch,
392 F.3d 73, 86 (2d Cir. 2004). The Complaint fails to allege
any racial or class-based animus other than one conclusory
assertion that the “Tech-giants” racially targeted Plaintiff
because she is a Black American “and all the tech-giant
defendants are of white or Asian” descent. (See generally Dkt.
No. 1.) “[C]onclusory allegations are inadequate to make out
a claim under Section 1985.” Jones v. Nat'l Commc'n and
Surveillance Networks, 409 F. Supp. 2d 456, 472 (S.D.N.Y.
2006) (citing Salgado v. City of N.Y., 00-CV-3667, 2001 WL
290051, at *8 (S.D.N.Y. Mar. 26, 2001); Sadler v. Brown, 793
F. Supp. 87, 90 (S.D.N.Y. 1992)). Thus, Plaintiff does not
sufficiently allege a conspiracy between Defendant Schumer
and/or others to deprive Plaintiff of any federally protected
rights.
Likewise, Plaintiff does not allege a claim under Section
1986, which proscribes knowingly failing to prevent a Section
1985 conspiracy “which such person by reasonable diligence
could have prevented,” and explicitly requires an underlying
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conspiracy under Section 1985. See Brown v. City of Oneonta,
New York, 221 F.3d 329, 341 (2d Cir. 2000) (“[A] § 1986
claim must be predicated on a valid § 1985 claim.”).
*9 As a result, I recommend that Plaintiff's claims against
Defendant Schumer be dismissed.
F. Claims Against Defendants Amazon.com,
Facebook.com, Google.com, Zazzle.com,
Cafepress.com, Redbubble.com, Bezos, and
Zuckerberg
A claim for relief under 42 U.S.C. § 1983 must allege
facts showing that the defendant acted under color of state
“statute, ordinance, regulation, custom or usage.” 42 U.S.C.
§ 1983. Thus, to state a claim under § 1983, a plaintiff must
allege both that: (1) a right secured by the Constitution or
laws of the United States was violated, and (2) the right
was violated by a person acting under the color of state
law, or a “state actor.” West v. Atkins, 487 U.S. 42, 48-49
(1988). Generally, private parties are not state actors, and
are not liable under § 1983. Sykes v. Bank of Am., 723 F.3d
399, 406 (2d Cir. 2013) (quoting Brentwood Acad. v. Tenn.
Secondary Sch. Athletic Ass'n, 531 U.S. 288, 295 (2001)); see
also Ciambriello v. Cnty. of Nassau, 292 F.3d 307, 323 (2d
Cir. 2002) (“[T]he United States Constitution regulates only
the Government, not private parties....”) (internal quotation
marks and citations omitted). “Because the United States
Constitution regulates only the Government, not private
parties, a litigant claiming that his constitutional rights have
been violated must first establish that the challenged conduct
constitutes ‘state action.’ ” United States v. Int'l Bhd. of
Teamsters, Chauffeurs, Warehousemen & Helpers of Am., 941
F.2d 1292, 1295-96 (2d Cir. 1991) (citing Blum v. Yartsky,
457 U.S. 991, 1002 (1982)). A private defendant may be held
liable only as “a willing participant in joint activity with the
State or its agents.” Adickes v. S.H. Kress & Co., 398 U.S.
144 (1970) (quoting United States v. Price, 383 U.S. 787, 794
(1966)). Claims under § 1983 can be brought against private
entities by “showing that a person acting under color of state
law ... collaborated with a private person ... to deprive the
plaintiff of a constitutional right.” Fries v. Barns, 618 F.2d
988, 990 (2d Cir. 1980) (citing Adickes, 398 U.S. at 144).
Here, the Complaint fails to allege facts plausibly suggesting
that Defendants Amazon.com, Facebook.com, Google.com,
Zazzle.com, Cafepress.com, Redbubble.com, Bezos, and
Zuckerberg were “state actors” or were “collaborating” with
state actors. Plaintiff's inclusion of citations to the statute—42
U.S.C. § 1983—in her Complaint, does not change that the
Complaint is devoid of factual allegations alleging any state
involvement by Defendants Amazon.com, Facebook.com,
Google.com, Zazzle.com, Cafepress.com, Redbubble.com,
Bezos, and Zuckerberg. (See generally Dkt. No. 1.)
Moreover, to the extent that Plaintiff sought to allege
a claim against Defendants Amazon.com, Facebook.com,
Google.com, Zazzle.com, Cafepress.com, Redbubble.com,
Bezos, and Zuckerberg for stalking, cyberstalking, and
harming Plaintiff, there is no private cause of action for
stalking or general “harm.” Sonnick v. Budlong, 20-CV-0410,
2020 WL 2999109, at *5, 9 n.8, 11 (N.D.N.Y. June 4,
2020) (Lovic, M.J.) (citations omitted) (“[F]ederal stalking
is a crime pursuant to 18 U.S.C. § 2261A, and does not
provide for a private cause of action.... New York does not
recognize private causes of action for stalking, harassment, or
trespass.”), report and recommendation adopted by 2020 WL
4345004 (N.D.N.Y. July 29, 2020) (McAvoy, J.).
*10 As a result, I recommend that Plaintiff's claims against
Defendants Amazon.com, Facebook.com, Google.com,
Zazzle.com, Cafepress.com, Redbubble.com, Bezos, and
Zuckerberg be dismissed for failure to state a claim upon
which relief may be granted.
G. Conspiracy
As set forth above in Part IV. E. of this Order and
Report-Recommendation, the Complaint fails to allege facts
plausibly suggesting racial or class-based animus—other
than Plaintiff's legally insufficient, conclusory assertion that
unnamed “Tech-giants” racially targeted Plaintiff because she
is a Black American “and all the tech-giant defendants are of
white or Asian” descent. (Dkt. No. 1 at 12.) Thus, Plaintiff
does not sufficiently allege a conspiracy between Defendants
and/or others to deprive her of any federally protected rights
pursuant to 42 U.S.C. § 1985. Moreover, because Plaintiff
fails to allege an underlying conspiracy pursuant to 42 U.S.C.
§ 1985, she likewise fails to allege a claim pursuant to 42
U.S.C. § 1986, which proscribes knowingly failing to prevent
a Section 1985 conspiracy.
As a result, to the extent that Plaintiff alleges conspiracy
claims pursuant to 42 U.S.C. §§ 1985, 1986 against any
Defendant, I recommend that they be dismissed.
H. Claims Against Defendants Williams, Piersall, De
Traglia, Aiello, Baye, Phillips, Grullon, French, Rios,
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John Does, James, Brin, Page, Pichai, Beaver, Marino,
Durham, Newstead, and Hopskin
“It is well settled in this Circuit that ‘personal involvement
of defendants in alleged constitutional deprivations is a
prerequisite to an award of damages under § 1983.’ ”
Wright v. Smith, 21 F.3d 496, 501 (2d Cir. 1994) (quoting
Moffitt v. Town of Brookfield, 950 F.2d 880, 885 (2d Cir.
1991)). In order to prevail on a section 1983 cause of action
against an individual, a plaintiff must show “a tangible
connection between the acts of a defendant and the injuries
suffered.” Bass v. Jackson, 790 F.2d 260, 263 (2d Cir. 1986).
“[D]irect participation as a basis of liability in this context
requires intentional participation in the conduct constituting
a violation of the victim's rights by one who knew of the facts
rendering it illegal.” Provost v. City of Newburgh, 262 F.3d
146, 155 (2d Cir. 2001) (internal quotation marks omitted).
The caption of the Complaint lists Defendants Williams,
Piersall, De Traglia, Aiello, Baye, Phillips, Grullon, French,
Rios, John Does, James, Brin, Page, Pichai, Beaver, Marino,
Durham, Newstead, and Hopskin but the body of the
Complaint does not contain any factual allegations regarding
them. Thus, I recommend that Plaintiff's claims against
Defendants Williams, Piersall, De Traglia, Aiello, Baye,
Phillips, Grullon, French, Rios, John Does, James, Brin, Page,
Pichai, Beaver, Marino, Durham, Newstead, and Hopskin
be dismissed. See Johnson v. Gonzalez, 14-CV-0745, 2015
WL 1179384, at *6 (N.D.N.Y. Mar. 13, 2015) (Kahn,
J.) (dismissing the claims against a defendant where the
complaint lists the defendant's “name in the caption, but
fails to again name or assert allegations against him.”);
Serrano v. New York State Dep't of Envtl. Conservation,
12-CV-1592, 2013 WL 6816787, at *15 (N.D.N.Y. Dec.
20, 2013) (D'Agostino, J.) (citing Jaffer v. Chemical Bank,
93-CV-8459, 1994 WL 392260, at *3 (S.D.N.Y. July 26,
1994) (holding that “[w]hen a complaint's caption names a
defendant but the complaint does not indicate that the named
party injured the plaintiff or violated the law, the motion
to dismiss must be granted”)) (dismissing the plaintiff's
claims against two defendants who were listed as parties in
the complaint and in the caption, but not elsewhere in the
complaint).
I. Statements of Defendants Schultz, Vomer, and
Sanders
*11 Having found that all of Plaintiff's federal claims are
subject to dismissal, I recommend that, to the extent Plaintiff
has asserted any state law claims—such as defamation
claims against Defendants Schultz, Vomer, and Sanders 9 —
the Court decline to exercise jurisdiction over those claims.
See 28 U.S.C. § 1367(c)(3) (providing that a district court
“may decline to exercise supplemental jurisdiction over
[pendent state law claims] if ... the district court has
dismissed all claims over which it has original jurisdiction”);
Carnegie-Mellon Univ. v. Cohill, 484 U.S. 343, 350 n.7
(1988) (“[I]n the usual case in which all federal-law claims
are eliminated before trial, the balance of factors to be
considered under the pendent jurisdiction doctrine—judicial
economy, convenience, fairness, and comity—will point
toward declining to exercise jurisdiction over the remaining
state-law claims.”); Walker v. Time Life Films, Inc., 784 F.2d
44, 53 (2d Cir. 1986) (citing Kavit v. A.L. Stamm & Co., 491
F.2d 1176, 1180 (1974)) (holding that “federal courts, absent
exceptional circumstances, should abstain from exercising
pendent jurisdiction when federal claims in a case can be
disposed of by summary judgment”).
V. OPPORTUNITY TO AMEND
Generally, a court should not dismiss claims contained in a
complaint filed by a pro se litigant without granting leave to
amend at least once “when a liberal reading of the complaint
gives any indication that a valid claim might be stated.”
Branum v. Clark, 927 F.2d 698, 704-05 (2d Cir. 1991);
see also Fed. R. Civ. P. 15(a)(2) (“The court should freely
give leave when justice so requires.”). An opportunity to
amend is not required, however, where “the problem with [the
plaintiff's] causes of action is substantive” such that “better
pleading will not cure it.” Cuoco v. Moritsugu, 222 F.3d 99,
112 (2d Cir. 2000); see also Cortec Indus. Inc. v. Sum Holding
L.P., 949 F.2d 42, 48 (2d Cir. 1991) (“Of course, where a
plaintiff is unable to allege any fact sufficient to support its
claim, a complaint should be dismissed with prejudice.”).
Stated differently, “[w]here it appears that granting leave to
amend is unlikely to be productive, ... it is not an abuse of
discretion to deny leave to amend.” Ruffolo v. Oppenheimer
& Co., 987 F.2d 129, 131 (2d Cir. 1993); accord, Brown v.
Peters, 95-CV-1641, 1997 WL 599355, at *1 (N.D.N.Y. Sept.
22, 1997) (Pooler, J.). 10
*12 I recommend that Plaintiff's claims against Defendant
Utica Police Department be dismissed without leave to amend
because it is not an entity that is amenable to suit. Moreover,
to the extent that Plaintiff's claims against Defendant Utica
Police Department are construed as against Defendant City
of Utica, I recommend that they be dismissed without leave
to amend because (1) Plaintiff's claims regarding Miller Park
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are factually frivolous, and (2) a better pleading will not
cure the issue with Plaintiff's claims alleging that the Utica
Police Department failed to arrest Mr. Tinco and the criminal
trespassers.
I recommend that Plaintiff's claims against Defendant Stanton
be dismissed without leave to amend because he is entitled to
absolute judicial immunity.
In addition, a better pleading will not cure the issue with
Plaintiff's claim against the New York Attorney General's
Office alleging that it failed to investigate and prosecute
alleged criminal and improper conduct. As a result, to the
extent that the Complaint is construed as asserting any
claim against the New York Attorney General's Office, I
recommend that it be dismissed without leave to amend.
To the extent that Plaintiff's Complaint is construed as
asserting any claims against unnamed New York State
officials for denying her ERAP application, I recommend
that they be dismissed without leave to amend because (1)
the officials in their official capacity are immune from suit
pursuant to the Eleventh Amendment, and (2) there is no
private cause of action to pursue Plaintiff's allegations.
Further, to the extent that Plaintiff asserted claims against
Defendants Amazon.com, Facebook.com, Google.com,
Zazzle.com, Cafepress.com, Redbubble.com, Bezos, and
Zuckerberg for stalking, cyber stalking, and harassment, I
recommend that they be dismissed without leave to amend
because there is no private cause of action for stalking, cyber
stalking, and harassment.
This Court has serious doubts about whether Plaintiff can
amend to assert actionable claims pursuant to 42 U.S.C.
§§ 1983, 1985, and 1986 against Defendants Schumer,
Amazon.com, Facebook.com, Google.com, Zazzle.com,
Cafepress.com, Redbubble.com, Bezos, Zuckerberg,
Williams, Piersall, De Traglia, Aiello, Baye, Phillips, Grullon,
French, Rios, John Does, James, Brin, Page, Pichai, Beaver,
Marino, Durham, Newstead, and Hopskin, Schultz, Vomer,
and Sanders. However, out of an abundance of caution,
I recommend that Plaintiff be permitted to amend those
claims against those Defendants. In addition, to the extent
that Plaintiff sought to allege any defamation claim against
Defendants Schultz, Vomer, and Sanders, I recommend that
she be permitted to amend that claim too.
If Plaintiff chooses to file an amended complaint, she
should note that the law in this circuit clearly provides
that “ ‘complaints relying on the civil rights statutes are
insufficient unless they contain some specific allegations of
fact indicating a deprivation of rights, instead of a litany
of general conclusions that shock but have no meaning.’
” Hunt v. Budd, 895 F. Supp. 35, 38 (N.D.N.Y. 1995)
(McAvoy, J.) (quoting Barr v. Abrams, 810 F.2d 358, 363
(2d Cir. 1987)); accord Pourzancvakil v. Humphry, 94-
CV-1594, 1995 WL 316935, at *7 (N.D.N.Y. May 22,
1995) (Pooler, J.). Therefore, in any amended complaint,
Plaintiff must clearly set forth facts that give rise to the
claims, including the dates, times, and places of the alleged
underlying acts, and each individual who committed each
alleged wrongful act. In addition, the revised pleading should
allege facts demonstrating the specific involvement of any
of the named defendants in the constitutional deprivations
alleged in sufficient detail to establish that they were tangibly
connected to those deprivations. Bass v. Jackson, 790 F.2d
260, 263 (2d Cir. 1986). Finally, Plaintiff is informed that any
such amended complaint will replace the existing Complaint,
and must be a wholly integrated and complete pleading that
does not rely upon or incorporate by reference any pleading
or document previously filed with the Court. See Shields v.
Citytrust Bancorp, Inc., 25 F.3d 1124, 1128 (2d Cir. 1994)
(“It is well established that an amended complaint ordinarily
supersedes the original and renders it of no legal effect.”).
VI. PLAINTIFF'S MOTION TO APPOINT COUNSEL
*13 Plaintiff has also submitted a request for appointment
of counsel. (Dkt. No. 5.)
As an initial matter, “[a] party has no constitutionally
guaranteed right to the assistance of counsel in a civil case.”
Leftridge v. Connecticut State Trooper Officer No. 1283, 640
F.3d 62, 68 (2d Cir. 2011) (citations omitted). Courts cannot
utilize a bright-line test in determining whether counsel
should be appointed on behalf of an indigent party. Hendricks
v. Coughlin, 114 F.3d 390, 392-93 (2d Cir. 1997). Instead, a
number of factors must be carefully considered by the court
in ruling upon such a motion. As a threshold matter, the court
should ascertain whether the indigent's claims seem likely to
be of substance. A motion for appointment of counsel may
be properly denied if the court concludes that the plaintiff's
“chances of success are highly dubious.” Leftridge, 640 F.3d
at 69. If the court finds that the claims have substance, the
court should then consider:
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[T]he indigent's ability to investigate
the crucial facts, whether conflicting
evidence implicating the need for
cross-examination will be the major
proof presented to the fact finder, the
indigent's ability to present the case,
the complexity of the legal issues and
any special reason in th[e] case why
appointment of counsel would be more
likely to lead to a just determination.
Terminate Control Corp., 28 F.3d at 1341 (quoting Hodge v.
Police Officers, 802 F.2d 58, 61-62 (2d Cir. 1986)). This is not
to say that all, or indeed any, of these factors are controlling in
a particular case. Rather, each case must be decided on its own
facts. Velasquez v. O'Keefe, 899 F. Supp. 972, 974 (N.D.N.Y.
1995) (McAvoy, C.J.) (citing Hodge, 802 F.2d at 61).
In the present matter, the Court has recommended dismissal
of the action. As such, the Court cannot find that Plaintiff's
claims are likely to be of substance. Plaintiff's motion (Dkt.
No. 5) is therefore denied.
ACCORDINGLY, it is
ORDERED that Plaintiff's application to proceed in forma
pauperis (Dkt. No. 2) is GRANTED only for purposes of
filing and any appeal unless the trial court certifies in
writing that the appeal is not taken in good faith; and it
is further
ORDERED that Plaintiff's motion for appointment of
counsel (Dkt. No. 5) is DENIED without prejudice to
refiling; and it is further respectfully
RECOMMENDED that the Court DISMISS WITH
LEAVE TO REPLEAD Plaintiff's Complaint (Dkt.
No. 1) to the extent that it asserts (1) claims
pursuant to 42 U.S.C. §§ 1983, 1985, and 1986
against Defendants Schumer, Amazon.com, Facebook.com,
Google.com, Zazzle.com, Cafepress.com, Redbubble.com,
Bezos, Zuckerberg, Williams, Piersall, De Traglia, Aiello,
Baye, Phillips, Grullon, French, Rios, John Does, James,
Brin, Page, Pichai, Beaver, Marino, Durham, Newstead, and
Hopskin, Schultz, Vomer, and Sanders, and (2) a defamation
claim against Defendants Schultz, Vomer, and Sanders,
because it fails to state a claim upon which relief may be
granted, pursuant to 28 U.S.C. § 1915(e)(2)(B); and it is
further respectfully
RECOMMENDED that the Court DISMISS WITHOUT
LEAVE TO REPLEAD Plaintiff's Complaint (Dkt. No. 1) to
the extent that it asserts (1) claims against Defendants Utica
Police Department, City of Utica, and Stanton; (2) claims
against the New York Attorney General's Office and unnamed
New York State officials; and (3) claims of stalking, cyber
stalking, and harassment against Defendants Amazon.com,
Facebook.com, Google.com, Zazzle.com, Cafepress.com,
Redbubble.com, Bezos, Zuckerberg, pursuant to 28 U.S.C. §
1915(e)(2)(B); and it is further
*14 ORDERED that the Clerk of the Court shall file a copy
of this order, report, and recommendation on the docket of
this case and serve a copy upon the parties in accordance with
the local rules. 11
NOTICE: Pursuant to 28 U.S.C. § 636(b)(1), the parties
have fourteen days within which to file written objections
to the foregoing report. 12 Such objections shall be filed
with the Clerk of the Court. FAILURE TO OBJECT
TO THIS REPORT WITHIN FOURTEEN DAYS WILL
PRECLUDE APPELLATE REVIEW. 28 U.S.C. § 636(b)
(1) (Supp. 2013); Fed. R. Civ. P. 6(a), 6(d), 72; Roldan v.
Racette, 984 F.2d 85 (2d Cir. 1993) (citing Small v. Sec'y of
Health and Human Servs., 892 F.2d 15 (2d Cir. 1989)).
All Citations
Not Reported in Fed. Supp., 2023 WL 3352758
Footnotes
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1 The court must interpret pro se complaints to raise the strongest arguments they suggest. Soto v. Walker,
44 F.3d 169, 173 (2d Cir. 1995) (quoting Burgos v. Hopkins, 14 F.3d 787, 790 (2d Cir. 1994)).
2 It is unclear if Plaintiff intended to state that she “accidentally menaced” the maintenance person or that she
“accidentally” used mace or some form of pepper spray.
3 The language of that section is ambiguous because it suggests an intent to limit availability of in forma
pauperis status to prison inmates. See 28 U.S.C. § 1915(a)(1) (authorizing the commencement of an action
without prepayment of fees “by a person who submits an affidavit that includes a statement of all assets such
prisoner possesses”). The courts have construed that section, however, as making in forma pauperis status
available to any litigant who can meet the governing financial criteria. Hayes v. United States, 71 Fed. Cl.
366, 367 (Fed. Cl. 2006); Fridman v. City of N.Y., 195 F. Supp. 2d 534, 536 n.1 (S.D.N.Y. 2002).
4 Plaintiff is reminded that, although her application to proceed in forma pauperis has been granted, she is still
required to pay fees that she may incur in this action, including copying and/or witness fees.
5 To determine whether an action is frivolous, a court must look to see whether the complaint “lacks an arguable
basis in either law or in fact.” Neitzke v. Williams, 490 U.S. 319, 325 (1989).
6 “An official capacity suit against a municipal employee is a suit against the municipality itself.” Pittman
v. Billings, 20-CV-0422, 2020 WL 2079440, at *9 (N.D.N.Y. Apr. 30, 2020) (Baxter, M.J.), report and
recommendation adopted by 2020 WL 2574631 (N.D.N.Y. May 21, 2020) (Sharpe, J.).
7 The “Coronavirus Aid Relief and Economic Security Act (“CARES Act”), which was continued by the
[Consolidated Appropriations Act of 2021] CAA and the America Rescue Plan Act, allocated funds for rental
assistance.” Turner, 2022 WL 1606289, at *2.
8 The Court notes that, should this action proceed against Defendant Schumer and the United States Attorney
make the requisite certification such that the United States be substituted as defendant, Plaintiff has failed to
allege compliance with the administrative exhaustion requirements set forth in the Federal Tort Claims Act
(FTCA). See De Masi v. Schumer, 608 F. Supp. 2d 516, 518-526 (S.D.N.Y. 2009) (replacing the United States
as the allegedly liable party and proceeding as a FTCA suit where the plaintiff alleged that Senator Charles
Schumer failed to respond to the plaintiff's repeated requests for assistance as one of Senator Schumer's
constituents).
9 To the extent that Plaintiff attempts to allege a retaliation claim against Defendant Sanders pursuant to 42
U.S.C. § 1983 and the First Amendment, I recommend that it also be dismissed because Plaintiff fails to
allege that she engaged in any protected speech. (See generally Dkt. No. 1.) Instead, Plaintiff alleges only
that Defendant Sanders accused Plaintiff of “want[ing] [U]tica police fired” and asked “why should we help
you[?]” after refusing to make an arrest. (Dkt. No. 1 at 7.) However, with additional factual allegations, Plaintiff
may have a viable claim against Defendant Sanders. See generally Rudd v. City of Norton Shores, Michigan,
977 F.3d 503, 513-516 (6th Cir. 2020) (citing Briner v. City of Ontario, 370 F. App'x 682, 700 (6th Cir. 2010);
Apple v. Glenn, 183 F.3d 477, 479 (6th Cir. 1999)) (holding that (1) “[t]he freedom of speech ... protects the
right of an ordinary citizen to criticize public officials ... without fear of criminal or civil repercussions,” and thus,
formal petitions including citizen complaints and informal requests for police assistance qualify as protected
petitioning of the government, and (2) although “ ‘the right to petition the government does not guarantee a
response to the petition or the right to compel government officials to act on or adopt a citizen's views[,]’ [a]nd
individuals have no constitutional entitlement to police protection[,].... the ‘unconstitutional conditions’ places
limits on the government's ability to deny an otherwise discretionary benefit in retaliation for a person's
protected speech.... [thus the Sixth Circuit has previously held that a plaintiff] stated a plausible claim by
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suggesting that the police ‘refused to investigate the theft of [his] GMC truck in retaliation for complaints
regarding the [police's] alleged failure to properly investigate [an earlier] burglary[.]’ ”).
10 See also Carris v. First Student, Inc., 132 F. Supp. 3d 321, 340-41 n.1 (N.D.N.Y. 2015) (Suddaby, C.J.)
(explaining that the standard set forth in Gomez v. USAA Fed. Sav. Bank, 171 F.3d 794, 796 (2d Cir. 1999)—
that the Court should grant leave to amend “unless the court can rule out any possibility, however unlikely
it might be, that an amended complaint would be successful in stating a claim”—is likely not an accurate
recitation of the governing law after Bell Atl. Corp. v. Twombly, 550 U.S. 544 (2007)), rev'd on other grounds,
682 F. App'x 30.
11 The Clerk shall also provide Plaintiff with copies of all unreported decisions cited herein in accordance with
Lebron v. Sanders, 557 F.3d 76 (2d Cir. 2009) (per curiam).
12 If you are proceeding pro se and served with this report, recommendation, and order by mail, three additional
days will be added to the fourteen-day period, meaning that you have seventeen days from the date that the
report, recommendation, and order was mailed to you to serve and file objections. Fed. R. Civ. P. 6(d). If the
last day of that prescribed period falls on a Saturday, Sunday, or legal holiday, then the deadline is extended
until the end of the next day that is not a Saturday, Sunday, or legal holiday. Fed. R. Civ. P. 6(a)(1)(C).
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Robinson v. Williams, Not Reported in Fed. Supp. (2023)
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2023 WL 2986825
Only the Westlaw citation is currently available.
United States District Court, N.D. New York.
Sheila ROBINSON, Plaintiff,
v.
Mark WILLIAMS, Utica NY, Police Officers 1-12; Kyle
Piersall, Utica NY, Police Officers 1-12; John DeTraglia,
Utica NY, Police Officers 1-12; Joseph Aiello, Utica
NY, Police Officers 1-12; Brian Baye, Utica NY, Police
Officers 1-12; Marissa Vomer, Utica NY, Police Officers
1-12; K. Phillips, Utica NY, Police Officers 1-12; Benny
Grullon, Utica NY, Police Officers 1-12; Derek Shultz,
Utica NY, Police Officers 1-12; Reginald Sanders, Utica
NY, Police Officers 1-12; Brian French, Utica NY,
Police Officers 1-12; Hiram Rios, Utica NY, Police
Officers 1-12; Louis L. Stanton, New York State Judge;
John Does, Unknown New York State Erap Officials;
Letitia James, New York State Attorney General; Chuck
Schumer, U.S. Senator for New York; Amazon.com;
Jeff Bezos, CEO of Amazon.com; Facebook.com;
Mark Zuckerberg, CEO of Facebook.com; Google.com;
Sergin Brin, of Google; Larry Page, of Google; Sundar
Pichai, CEO of Google; Zazzle.com; Robert Beaver,
CEO of Zazzle.com; Cafepress.com; Bob Marino, CEO
of Cafepress.com; Fred Durham, of Cafepress.com;
Redbubble.com; Barry Newstead, of Redbubble.com;
Martin Hopskin, of Redbubble.com; Utica New York
Police Dept., and City of Utica, New York, Defendants.
6:22-CV-0982 (GTS/ML)
|
Signed April 18, 2023
Attorneys and Law Firms
SHEILA ROBINSON, Plaintiff, Pro Se, 939 Ontario Avenue,
Niagara Falls, New York 14301.
DECISION and ORDER
GLENN T. SUDDABY, United States District Judge
*1 Currently before the Court, in this pro se civil rights
action filed by Sheila Robinson (“Plaintiff”) against the
above-captioned individuals and entities (“Defendants”), are
(1) United States Magistrate Judge Miroslav Lovric's Report-
Recommendation recommending that some of the claims in
Plaintiff's Complaint be sua sponte dismissed without leave
to amend, and that the remaining claims in that Complaint be
sua sponte dismissed with leave to amend, and (2) Plaintiff's
Objections to the Report-Recommendation. (Dkt. Nos. 6, 9.)
After carefully reviewing the relevant filings in this action,
the Court finds no error in the Report-Recommendation, clear
or otherwise: 1 Magistrate Judge Lovric employed the proper
standards, accurately recited the facts, and reasonably applied
the law to those facts. As a result, the Court accepts and adopts
the Report-Recommendation for the reasons stated therein. To
those reasons, the Court adds only two points.
First, even when construed with the utmost of special
liberality, Plaintiff's “Objections” fail to assert a specific
challenge to the Report-Recommendation. (Compare Dkt.
No. 9 with Dkt. No. 6.) 2 As a result, the “challenged
portions” of the Report-Recommendation are entitled to only
a clear-error review. In any event, even if the Court were to
subject those portions of the Report-Recommendation to a
de novo review, the Court would find that they survive that
review.
*2 Second, rather than wait for the undersigned's ruling on
Magistrate Judge Lovric's Report-Recommendation, Plaintiff
has attempted to file an Amended Complaint. (Dkt. No. 10.)
This litigation practice has complicated matters because, even
assuming that Plaintiff had an absolute right to file such an
Amended Complaint under Fed. R. Civ. P. 15(a)(1) despite
the fact that she had not yet served her Complaint, 3 an
amended complaint supersedes an original complaint in all
respects. 4 This means that, arguably, Plaintiff's Amended
Complaint has partially mooted Magistrate Judge Lovric's
Report-Recommendation, which analyzed Plaintiff's original
Complaint.
Out of a desire for judicial efficiency, the Court is tempted to
apply the recommendations in the Report-Recommendation
to Plaintiff's Amended Complaint. However, the Court is
mindful of the Second Circuit's admonition that a pro se
plaintiff's request to amend her complaint when a motion to
dismiss is pending should be denied only without prejudice,
or perhaps stayed, until she has had the benefit of the district
court's ruling on the motion to dismiss. 5
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For all of these reasons, the Court has chosen to
apply Magistrate Judge Lovric's Report-Recommendation
to Plaintiff's original Complaint while deeming Plaintiff's
Amended Complaint as a proposed Amended Complaint (out
of special solicitude to Plaintiff as a pro se civil rights litigant),
and holding that proposed Amended Complaint in abeyance
pending confirmation from Plaintiff that it is indeed the
Amended Complaint on which she wishes to proceed.
*3 ACCORDINGLY, it is
ORDERED that Magistrate Judge Lovric's Report-
Recommendation (Dkt. No. 6) is ACCEPTED and
ADOPTED; and it is further
ORDERED that the following claims in Plaintiff's Complaint
(Dkt. No. 1) are DISMISSED: (1) Plaintiff's claims against
Utica Police Department, the City of Utica, and Judge
Stanton; (2) Plaintiff's claims against the New York State
Attorney General and unnamed New York State officials;
and (3) Plaintiff's stalking claims, cyberstalking claims,
and harassment claims against Amazon.com, Facebook.com,
Google.com, Zazzle.com, Cafepress.com, Redbubble.com,
Bezos, and Zuckerberg; and it is further
ORDERED that the remaining claims in Plaintiff's
Complaint (Dkt. No. 1) shall be DISMISSED without further
Order of this Court UNLESS, within THIRTY (30) DAYS of
this Report-Recommendation, Plaintiff files an AMENDED
COMPLAINT that corrects the pleading defects identified
in those claims, which are specified as follows: (1)
Plaintiff's claims under 42 U.S.C. §§ 1983, 1985, and 1986
against Defendants Schumer, Amazon.com, Facebook.com,
Google.com, Zazzle.com, Cafepress.com, Redbubble.com,
Bezos, Zuckerberg, Williams, Piersall, DeTraglia, Aiello,
Baye, Phillips, Grullon, French, Rios, John Does, James,
Brin, Page, Pichai, Beaver, Marino, Durham, Newstead,
Hopskin, Schultz, Vomer, and Sanders; and (2) Plaintiff's
defamation claims against Defendants Schultz, Vomer, and
Sanders; and it is further
ORDERED that, more specifically, within THIRTY (30)
DAYS of the date of this Decision and Order, Plaintiff shall do
one of the following two things: (1) notify the Court in writing
that her proposed Amended Complaint (Dkt. No. 10) is indeed
the Amended Complaint on which she wishes to proceed, or
(2) file a revised Amended Complaint; and it is further
ORDERED that, upon Plaintiff's fulfillment of one of the
conditions set forth in the preceding paragraph (or, in the
absence of his fulfillment of either condition, after the passage
of thirty days), Plaintiff's operative Amended Complaint shall
be referred to Magistrate Judge Lovric for review of its
pleading sufficiency pursuant to 28 U.S.C. § 1915(e) (as well
as his management of pretrial matters).
All Citations
Not Reported in Fed. Supp., 2023 WL 2986825
Footnotes
1 When no objection is made to a report-recommendation (or when only a general objection is made to a report-
recommendation), the Court subjects that report-recommendation to only a clear-error review. Fed. R. Civ. P.
72(b), Advisory Committee Notes: 1983 Addition. When performing such a clear-error review, “the court need
only satisfy itself that there is no clear error on the face of the record in order to accept the recommendation.”
Id.; see also Batista v. Walker, 94-CV-2826, 1995 WL 453299, at *1 (S.D.N.Y. July 31, 1995) (Sotomayor,
J.) (“I am permitted to adopt those sections of [a magistrate judge's] report to which no specific objection is
made, so long as those sections are not facially erroneous.”) (internal quotation marks omitted).
2 When a specific objection is made to a portion of a magistrate judge's report-recommendation, the Court
subjects that portion of the report-recommendation to a de novo review. Fed. R. Civ. P. 72(b)(2); 28 U.S.C. §
636(b)(1)(C). To be “specific,” the objection must, with particularity, “identify [1] the portions of the proposed
findings, recommendations, or report to which it has an objection and [2] the basis for the objection.” N.D.N.Y.
L.R. 72.1(c); see also Mario v. P&C Food Markets, Inc., 313 F.3d 758, 766 (2d Cir. 2002) (“Although Mario
filed objections to the magistrate's report and recommendation, the statement with respect to his Title VII
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claim was not specific enough to preserve this claim for review. The only reference made to the Title VII claim
was one sentence on the last page of his objections, where he stated that it was error to deny his motion on
the Title VII claim ‘[f]or the reasons set forth in Plaintiff's Memorandum of Law in Support of Motion for Partial
Summary Judgment.’ This bare statement, devoid of any reference to specific findings or recommendations
to which he objected and why, and unsupported by legal authority, was not sufficient to preserve the Title
VII claim.”).
3 Rule 15(a)(1)(A) of the Federal Rules of Civil Procedure provides that “[a] party may amend its pleading once
as a matter of course within ... 21 days after serving it....” Fed. R. Civ. P. 15(a)(1)(A) (emphasis added). Here,
Plaintiff never served her Complaint; thus, she is arguably not yet within the 21-day window in which she may
filed an Amended Complaint as a matter of course. Compare Morris v. New York State Gaming Comm'n, 18-
CV-0384, 2019 WL 2423716, at *4 (W.D.N.Y. March 14, 2019) (“Because Plaintiff never served the original
Complaint, the 21-day time limit to file an amended complaint under Rule 15(a)(1)(A) never commenced.”)
(emphasis added) with Henderson v. Wells Fargo Bank, NA, 13-CV-0378, 2015 WL 630438, at *2 (D. Conn.
Feb. 13, 2015) (“Fed. R. Civ. P. 15(a) provides that a ‘party may amend its pleading once as a matter of
course within ... 21 days after serving it.’ Because Plaintiff has not yet served Defendant with the complaint,
her motion is granted although unnecessary because leave of the Court is not required.”).
4 See Int'lControls Corp. v. Vesco, 556 F.2d 665, 668 (2d Cir. 1977) (“It is well established that an amended
complaint ordinarily supersedes the original, and renders it of no legal effect.”); 6 C. Wright & A. Miller, Federal
Practice & Procedure § 1476, at 556-57 (2d ed. 1990) (“A pleading that has been amended under Rule 15(a)
supersedes the pleading it modifies and remains in effect throughout the action unless it subsequently is
modified.”); cf. N.D.N.Y. L.R. 7.1(a)(4) (“[T]he proposed amended pleading ... will supersede the pleading
sought to be amended in all respects.”).
5 See Cresci v. Mohawk Valley Community College, 693 F. App'x 21, 25 (2d Cir. June 2, 2017) (“The court's
criticism of Cresci for failure to submit a proposed amended complaint before learning whether, and in
what respects, the court would find deficiencies was unjustified, and the court's denial of leave to replead,
simultaneously with its decision that the complaint was defective, effectively deprived Cresci of a reasonable
opportunity to seek leave to amend.”).
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Sagaria v. Orange County Jail, Not Reported in Fed. Supp. (2021)
© 2026 Thomson Reuters. No claim to original U.S. Government Works. 1
2021 WL 4392422
Only the Westlaw citation is currently available.
United States District Court, S.D. New York.
John SAGARIA, Plaintiff,
v.
ORANGE COUNTY JAIL, et al., Defendants.
No. 20-CV-2287 (KMK)
|
Signed 09/24/2021
Attorneys and Law Firms
Michael David Meth, Esq., Meth Law Offices, PC, Chester,
NY, Counsel for Plaintiff.
Anthony Francisco Cardoso, Esq., Orange County Attorney's
Office, Goshen, NY, Counsel for Defendants.
OPINION & ORDER
KENNETH M. KARAS, UNITED STATES DISTRICT
JUDGE
*1 Plaintiff John Sagaria (“Plaintiff”) brings this Action
pursuant to 42 U.S.C. § 1983 against the Orange County
Jail (the “Jail”), the Orange County Sheriff's Department
(the “Sheriff's Department”), and the County of Orange
(the “County”; collectively “Defendants”) for wrongful
incarceration in violation of the Eighth and Fourteenth
Amendments of the United States Constitution and Article
1 Section 6 of the New York State Constitution. (Compl.
(Dkt. No. 1).) Before the Court is Defendants’ Motion to
Dismiss (the “Motion”). (Not. of Mot. (Dkt. No. 25).) For the
following reasons, the Motion is granted.
I. Background
A. Factual Background
The following facts, drawn from Plaintiff's Complaint, are
taken as true for the purpose of resolving the instant Motion.
Plaintiff is a businessman who has lived in Orange County,
New York for over 25 years. (Compl. ¶ 12.) His primary
source of income is the two businesses he owns, both of
which he must be present to operate. (Id.) Plaintiff also
is the plaintiff in a contentious divorce proceeding in the
Supreme Court of Orange County, New York (the “state
court”). (Id. ¶ 13.) On December 14, 2018, during a custody
hearing related to this divorce proceeding, Plaintiff's ex-wife's
counsel, Barbara Strauss, Esq. (“Strauss”), raised the issue
of Plaintiff's unpaid spousal support. (Id. ¶ 14.) The state
court denied Plaintiff's request for a hearing and offer of
proof on the non-payment issue. (Id. ¶ 15.) Plaintiff was held
in summary contempt of court for non-payment of spousal
support, and the state court ordered his immediate detention.
(Id.) The state court remanded Plaintiff to the Jail pursuant to
an order of commitment. (Id. ¶ 17.) Plaintiff alleges that the
state court set $25,000 as the payment required for Plaintiff
to purge his contempt. (Id. ¶ 16.) The Court takes judicial
notice of the order of commitment, which states that Plaintiff
could purge his contempt by “paying the partial sum of
$25,889.64 to C[ynthia] S[agaria],” and orders Plaintiff to be
imprisoned for 30 days, “or until the purge sum of $25,889.64
is paid.” (See Decl. of Anthony F. Cardoso in Supp. (“Cardoso
Decl.”) Ex. B (“Order of Commitment”) (Dkt. No. 26-2).)
See Kramer v. Time Warner Inc., 937 F.2d 767, 774 (2d Cir.
1991) (“[C]ourts routinely take judicial notice of documents
filed in other courts, ... not for the truth of the matters asserted
in the other litigation, but rather to establish the fact of such
litigation and related filings.”). 1
On December 17, 2018, Plaintiff paid $25,000 to Strauss
by credit card. (Compl. ¶ 19.) Strauss subsequently issued a
Letter of Release to the state court and brought the letter and
payment confirmation to the Sheriff's Department. (Id.) The
Sheriff's Department refused to release Plaintiff because the
release letter did not come from the state court. (Id. ¶¶ 19, 20.)
The state court refused to sign the release order. (Id. ¶ 21.)
*2 On December 19, 2018, Plaintiff paid an additional
$28,090.26 by credit card to the Sheriff's Department
GOVPAY EXP Payment Service to satisfy the purge amount.
(Id. ¶ 22.) This sum included $3,090.26 in fees. (Id. ¶ 23.)
The Sheriff's Department charged Plaintiff's credit card. (Id.)
Subsequently, the Sheriff's Department stated that it could
accept only $10,000 via credit card. (Id. ¶ 24.) The Sheriff's
Department stated that Plaintiff had to pay $25,000 in cash
at the window of the Jail to be released. (Id. ¶ 26.) While
Plaintiff's family and friends were gathering cash, he was
advised by the state court that an additional $1,639.644 paid
directly to Strauss would be required for release. (Id. ¶¶ 28,
30.) Plaintiff paid Strauss $1,639.44 in cash and was released
on December 19, 2018 at 8:30 P.M. (Id. ¶¶ 30–31.) The
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following day, GOVPAY EXP credited Plaintiff's credit card
the $28,090.26 previously paid. (Id. ¶¶ 22, 33.)
Plaintiff seeks compensatory and special damages—
including for emotional injury and loss of liberty, punitive
damages, pre- and post-judgment interest, and attorneys’ fees
and costs. (Id. ¶ 34 & 10–11.) 2
B. Procedural Background
Plaintiff filed his Complaint on March 13, 2020. (Compl.) On
September 28, 2020, Defendants submitted a letter requesting
a pre-motion conference in anticipation of filing a motion
to dismiss pursuant to Rule 12(b)(6). (Dkt. No. 21.) On
October 8, 2020, the Court ordered Plaintiff to respond to
Defendant's pre-motion letter by October 13, 2020, (Dkt.
No. 22), which Plaintiff did, (Dkt. No. 23). On October 20,
2020, the Court adopted a briefing schedule. (Dkt. No. 24.)
On November 20, 2020, Defendants filed their Motion To
Dismiss. (Not. of Mot.; Cardoso Decl. (Dkt. No. 26); Not.
of Mot. on Behalf of Defs. (“Defs.’ Mem.”) (Dkt. No. 27).)
Plaintiff filed a memorandum of law in opposition to the
Motion To Dismiss on December 18, 2020. (Mem. of Law in
Opp'n (“Pl.’s Mem.”) (Dkt. No. 28).) Defendants filed their
Reply on January 5, 2021. (Reply Mem. of Law in Further
Supp. of Mot. To Dismiss on Behalf of the Defs. (“Defs.’
Reply”) (Dkt. No. 29).)
II. Discussion
A. Standard of Review
When ruling on a Rule 12(b)(6) motion to dismiss, the
Court must accept all factual allegations in the complaint
as true and draw all reasonable inferences in the plaintiff's
favor. Nielsen v. Rabin, 746 F.3d 58, 62 (2d Cir. 2014). The
Court, however, is not required to credit “mere conclusory
statements” or “[t]hreadbare recitals of the elements of a
cause of action.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)
(citing Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007)).
“To survive a motion to dismiss, a complaint must contain
sufficient factual matter, accepted as true, to state a claim to
relief that is plausible on its face.” Id. at 678 (citation and
quotation marks omitted). A claim is facially plausible “when
the plaintiff pleads factual content that allows the [C]ourt to
draw the reasonable inference that the defendant is liable for
the misconduct alleged.” Id. Specifically, the plaintiff must
allege facts sufficient to show “more than a sheer possibility
that a defendant has acted unlawfully,” id., and if the plaintiff
has not “nudged [his or her] claims across the line from
conceivable to plausible, [the] complaint must be dismissed,”
Twombly, 550 U.S. at 570.
On a Rule 12(b)(6) motion to dismiss, the question “is not
whether a plaintiff will ultimately prevail but whether the
claimant is entitled to offer evidence to support the claims.”
Sikhs for Justice v. Nath, 893 F. Supp. 2d 598, 615 (S.D.N.Y.
2012). Accordingly, the “purpose of Federal Rule of Civil
Procedure 12(b)(6) is to test, in a streamlined fashion, the
formal sufficiency of the plaintiff's statement of a claim for
relief without resolving a contest regarding its substantive
merits.” Halebian v. Berv, 644 F.3d 122, 130 (2d Cir. 2011)
(citation and quotation marks omitted). To decide the motion,
the Court “may consider the facts as asserted within the four
corners of the complaint together with the documents attached
to the complaint as exhibits, and any documents incorporated
in the complaint by reference.” Peter F. Gaito Architecture,
LLC v. Simone Dev. Corp., 602 F.3d 57, 64 (2d Cir. 2010)
(citation and quotation marks omitted).
B. Analysis
1. Claims Against the Jail and the Sheriff's Department
*3 The Jail and the Sheriff's Department argue that they
are administrative arms of the County and cannot be sued
independently under New York law. (Defs.’ Mem. 12.) The
Court agrees.
The Orange County Sheriff's Department is a municipal
department of the County of Orange, State of New
York. Sheriff's Office, Sheriff's Office: Orange County,
New York, https://www.orangecountygov.com/1650/Sheriffs-
Office (last visited September 24, 2021). The Sheriff's
Department is subdivided into multiple divisions. Id.
The Orange County Jail is a subdivision of the
Sheriff's Department. Orange County, Corrections (Jail),
https://www.orangecountygov.com/511/Corrections-Jail (last
visited September 24, 2021). The Jail is responsible for
operating and maintaining the County's correctional system.
Id. 3
Pursuant to Federal Rule of Civil Procedure 17, federal courts
must look to state law when deciding whether a government
entity may be sued. Fed. R. Civ. P. 17(b)(3) (providing that
capacity to be sued is determined “for all ... parties [except
individuals or corporations] by the law of the state where
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the court is located”); see also Fanelli v. Town of Harrison,
46 F. Supp. 2d 254, 257 (S.D.N.Y. 1999) (“New York law
governs the capacity of a police department to sue or be
sued.”); Orraca v. City of New York, 897 F. Supp. 148, 152
(S.D.N.Y. 1995) (“[T]he capacity of a governmental entity
to sue or be sued is a question of state law.”). “Under New
York law, departments that are merely administrative arms
of a municipality do not have a legal identity separate and
apart from the municipality and, therefore, cannot sue or be
sued.” McCloud v. Dzurenda, No. 20-CV-6393, 2021 WL
1924181, at *3 (E.D.N.Y. May 13, 2021) (quoting Rose v.
County of Nassau, 904 F. Supp. 2d 244, 247 (E.D.N.Y. 2012));
see also Carr v. County of Sullivan, No. 16-CV-06850,
2018 WL 3733952, at *2 n.6 (S.D.N.Y. Aug. 3, 2018)
(noting that departments are “merely administrative arms of
a municipality [that] do not have a legal identity separate and
apart from the municipality and, therefore, cannot sue or be
sued”); Polite v. Town of Clarkstown, 60 F. Supp. 2d 214,
216 (S.D.N.Y. 1999) (holding that “municipal departments in
this State ... are not amenable to suit, and no claims can lie
directly against them”); Hoisington v. County of Sullivan, 55
F. Supp. 2d 212, 214 (S.D.N.Y. 1999) (finding that “municipal
departments like the Department of Social Services are not
amenable to suit”). Neither the Sheriff's Department nor the
Jail exist separate and apart from the County and, as a result,
neither can be sued. See Gleeson v. County of Nassau, No.
15-CV-6487, 2019 WL 4754326, at *14 (E.D.N.Y. Sept.
30, 2019) (finding Nassau County Sheriff's Department and
Nassau County Correction Center were not proper parties
because they are administrative arms of Nassau County);
Carr, 2018 WL 3733952, at *2 n.6 (holding that the Fallsburg
Police Department cannot be sued because “[i]t is well-settled
that departments that are merely administrative arms of a
municipality do not have legal identity separate and apart
from the municipality and, therefore, cannot sue or be sued”);
Campbell v. Sposato, No. 15-CV-1958, 2015 WL 9267222,
at *4 (E.D.N.Y. Nov. 17, 2015) (finding Nassau County
Correctional Center was not a proper party because it was
an arm of the Department of Sheriff, which was a Nassau
County department), report and recommendation adopted,
2015 WL 9273951 (E.D.N.Y. Dec. 16, 2015); Joseph v.
Nassau Cnty. Corr. Ctr., No. 12-CV-4414, 2013 WL 1702162,
at *3 (E.D.N.Y. Apr. 19, 2013) (same); Polite, 60 F. Supp. 2d
at 216–17 (dismissing claims against the Clarkstown Police
Department); see also N.Y. GEN. MUN. LAW § 2 (noting
that counties are defined as “municipal corporations”).
*4 Thus, Plaintiff's claims against the Sheriff's Department
and the Jail are dismissed with prejudice. This outcome
does not “subject ... Plaintiff to indefinite arbitrary
detention.” (Pl.’s Mem. 22.) Plaintiff may seek recourse
against the County, which “has already been named as a
defendant.” Umhey v. County of Orange, 957 F. Supp. 525,
532 (S.D.N.Y. 1997).
2. Due Process
Plaintiff claims that the delay in his release violated his
due process rights. (Compl. ¶¶ 49–51.) The Fourteenth
Amendment to the United States Constitution provides that
a State shall not “deprive any person of life, liberty, or
property, without due process of law.” U.S. CONST. amend.
XIV, § 1. Plaintiff brings both substantive and procedural due
process claims under the Fourteenth Amendment. To state a
procedural due process claim, a plaintiff “must first establish
that he enjoyed a protected liberty interest.” Arce v. Walker,
139 F.3d 329, 333 (2d Cir. 1998). If a plaintiff establishes
such a protected interest, the next question is whether
“the procedures followed by the State were constitutionally
sufficient.” Swarthout v. Cooke, 562 U.S. 216, 219 (2011).
The Fourteenth Amendment guarantees “ ‘more than fair
process’; it ‘cover[s] a substantive sphere as well, barring
certain government actions regardless of the fairness of the
procedures used to implement them.’ ” Hurd v. Fredenburgh,
984 F.3d 1075, 1087 (2d Cir. 2021) (quoting County of
Sacramento v. Lewis, 523 U.S. 833, 840 (1998)). To state
a substantive due process claim, Plaintiff must allege: (1)
a valid liberty or property interest, (2) which Defendants
infringed in an arbitrary or irrational manner. See Harlen
Assocs. v. Incorporated Village of Mineola, 273 F.3d 494, 503
(2d Cir. 2001). “The interference with the plaintiff's protected
right must be so shocking, arbitrary, and egregious that the
Due Process Clause would not countenance it even were it
accompanied by full procedural protection.” Southerland v.
City of New York, 680 F.3d 127, 152 (2d Cir. 2012) (quotation
marks omitted).
Plaintiff alleges a valid liberty interest for both a procedural
and substantive due process claim. Because “[f]reedom
from bodily restraint has always been at the core of the
liberty protected by the Due Process Clause from arbitrary
governmental action[,] ... commitment for any purpose
constitutes a significant deprivation of liberty that requires
due process protection.” Foucha v. Louisiana, 504 U.S. 71,
80 (1992) (citation and quotation marks omitted). Here,
Plaintiff alleges that he was wrongfully detained for 30
additional hours. (Compl. ¶¶ 51–53.) The Court assumes
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without deciding that improper detention for this amount of
time can violate substantive due process. See Lynch v. City
of New York, 335 F. Supp. 3d 645, 655 (S.D.N.Y. 2018)
(holding unconstitutional the Department of Correction's
practice of forcing detainees who had already paid bail
to remain detained until a critical mass awaiting release
formed). Thus, the key questions are (1) whether Plaintiff
plausibly alleges that Defendants failed to use constitutionally
sufficient procedures, and (2) whether Plaintiff's confinement
was arbitrary or irrational. The Court concludes on both
questions that Plaintiff has failed to state a claim.
a. Procedural Due Process
Given that Plaintiff had a liberty interest in freedom from
bodily restraint, the question is “whether the government
deprived the plaintiff of that interest without due process,”
which examines “what process was due to the plaintiff, and
inquires whether that constitutional minimum was provided
in the case under review.” Narumanchi v. Bd. of Trs. of Conn.
State Univ., 850 F.2d 70, 72 (2d Cir. 1988) (citing Mathews v.
Eldridge, 424 U.S. 319 (1976)).
i. First Payment Attempt
*5 Plaintiff claims that Defendants failed to use
constitutionally sufficient procedures in delaying his release
after the Jail received a letter from Strauss consenting to
Plaintiff's release. (Pl.’s Mem. 10–11.) The Court disagrees.
The Complaint acknowledges that Plaintiff was detained
pursuant to a commitment order after a finding of contempt.
(See Compl. ¶¶ 15, 17.) Plaintiff does not challenge the facial
validity of this commitment order. (See generally id.) 4 Nor
does he allege that he challenged the commitment order while
he was detained. (See generally id.; see also Pl.’s Mem.
13 (stating that Plaintiff “never challenged the order”).) Of
course, Plaintiff was “free to raise ... legal challenges ... by
seeking to have the commitment order vacated.” Ngemi v.
County of Nassau, 87 F. Supp. 3d 413, 419 (E.D.N.Y. 2015). 5
Absent such a challenge, Defendants were “bound to execute
the valid order as it [was] written.” Id. (citing Tornheim v.
Eason, 363 F. Supp. 2d 674, 677 (S.D.N.Y. 2005) (“A sheriff
is not empowered to review a facially valid court order; it is
not within his scope of authority to question the legality of the
provision in the [j]udgment.”), aff'd, 175 F. App'x 427 (2d Cir.
2006)). As a result, to the extent they acted consistent with the
commitment order, Defendants are entitled to quasi-judicial
immunity. (See Defs.’ Mem. 13.) See Fludd v. Fischer, No.
10-CV-6603, 2012 WL 3749652, at *5 (W.D.N.Y. Aug. 28,
2012) (“Government officials carrying out a facially valid
court order are entitled to immunity to suits for damages under
§ 1983.”), aff'd in part, vacated in part on other grounds,
remanded, 568 F. App'x 70 (2d Cir. 2014); Tornheim, 363
F. Supp. 2d at 677 (finding that a municipal official sued in
his official capacity for executing a court order was “entitled
to an absolute quasi-judicial immunity because his actions
—undertaken in performance of his official duties—ha[d]
an integral relationship with the judicial process”); Respass
v. N.Y.C. Police Dep't, 852 F. Supp. 173, 177 (E.D.N.Y.
1994) (finding it “highly unlikely that the mere averment that
the warden failed to look behind the facial validity of [the]
plaintiff's commitment order would state a claim against the
Department of Corrections”). 6
*6 Plaintiff's claim thus turns on whether Plaintiff has
plausibly alleged that Defendants acted beyond the scope of
the commitment order. He has not. The commitment order
allowed Plaintiff to purge his contempt by paying Cynthia
Sagaria $25,889.64. (See Order of Commitment.) See N.Y.C.
Transit Auth. v. Transp. Workers Union of Am., 822 N.Y.S.2d
579, 589 (App. Div. 2006) (noting that a civil contemnor
may end his or her incarceration by satisfying the purge
conditions). Plaintiff's payment of $25,000 on December 17,
2019 was less than the required $25,889.64. (See Compl.
¶ 19; Order of Commitment.) Strauss's letter consenting to
Plaintiff's release likewise did not require Plaintiff's release,
because the commitment order did not specify that Plaintiff
would be released upon consent by his ex-wife. (See Order
of Commitment.) Because Plaintiff does not claim that
Defendants violated the commitment order, he has not alleged
that Defendants violated his due process rights by delaying
his release after his first attempted payment. See Ngemi,
87 F. Supp. 3d at 419 (finding that where the sheriff was
executing a facially valid commitment order by placing the
plaintiff in custody, the plaintiff's complaint did not allege
a valid procedural due process against any employee of
the Sheriff's Office); Pack v. Hynes, Nos. 04-CV-574, 04-
CV-2907, 2004 WL 3090592, at *2 (E.D.N.Y. Aug. 18, 2004)
(“The superintendents of various New York State correctional
institutions had custody of [the] plaintiff under a sentence and
judgment of convictions [that were] valid on their face. No
valid claim is stated against them individually or together.”).
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Plaintiff cites Town of Wilmurt v. Wright, 171 N.Y.S. 230
(App. Div. 1918), to argue that Defendants would have been
“entirely justified” in releasing Plaintiff due to his ex-wife's
consent, (Pl.’s Mem. 10–11). However, Wright is consistent
with the Court's reasoning. There, the parties were able “to
agree upon [a] settlement, which would release the defendant
from imprisonment.” Wright, 171 N.Y.S. at 232. However,
the defendant was released only because “an order was made
discharging the defendant.” Id. In other words, the defendant
in Wright received a court order reversing a prior detention
order. See also First Mariner Bank v. Resol. L. Grp., P.C., No.
12-CV-1133, 2014 WL 1681986, at *3 (D. Md. Apr. 28, 2014)
(ordering that the defendants had purged civil contempt).
Defendants are not liable merely because Plaintiff failed to
seek the same.
ii. Second Payment Attempt
Plaintiff argues that the County violated his due process rights
by refusing to release him after he attempted to pay the full
purge amount via credit card. (Pl.’s Mem. 11–12.) The Court
disagrees. 7
Numerous courts have held that there is no “constitutional
right to a certain type of bond.” Walden v. Carmack, 156 F.3d
861, 874 (8th Cir. 1998); see also Guam v. Tuncap, 2011
Guam 24 ¶ 12 (noting that “other courts have held that there
is no established right to a certain type of bond”); Campbell
v. Johnson, No. 06-CV-365, 2006 WL 3408177, at *2 (N.D.
Fla. Nov. 27, 2006) (holding that “there is no established
constitutional right to a certain type of bond”); cf. Holland v.
Rosen, 895 F.3d 272, 292 (3d Cir. 2018) (finding it unlikely
“that the Excessive Bail Clause guarantees a right to monetary
bail”). The history of New York's bail law is consistent
with this principle. New York's law was “intended to reform
the restrictive bail scheme” and “improve the availability of
pretrial release.” People ex rel. McManus v. Horn, 967 N.E.2d
671, 674 (N.Y. 2012). This law allows a court to require that
“bail be posted in any one of three or more ... forms.” N.Y.
CRIM. PROC. LAW § 520.10(2)(b). The statute lists nine
possible bail forms, and “[c]redit card or similar device” is
only one of the options. Id. § 520.10(1). Thus, even in a bail
regime designed to improve the availability of pretrial release,
a criminal defendant is not entitled to pay bail by credit card.
See, e.g., People v. Disimile, 142 N.Y.S.3d 319, 322 (County
Ct. 2021) (setting bail as “$30,000 cash, $60,000 insurance
company bond or $200,000 partially secured appearance bond
with a 10% cash component”). In light of this history, it is
unsurprising that courts have rejected claims that refusing to
accept credit card payment for bail is unconstitutional. See,
e.g., Wells v. Ward, 470 F.2d 1185, 1185 (10th Cir. 1972)
(affirming summary judgment against a plaintiff who alleged
that “the jailer refused to accept his bail bond credit card”); see
also Kinsey v. Ohio, No. 20-3315, 2021 WL 1100494, at *1
(6th Cir. Jan. 11, 2021) (summary order) (affirming summary
judgment against a plaintiff who claimed that he was “was
not permitted to pay the bail with a credit card because cash
was the only acceptable method of payment”); cf. Keele v.
City of St. John, No. 10-CV-811, 2011 WL 453254, at *3, *4
(E.D. Mo. Feb. 4, 2011) (dismissing on statute of limitations
grounds the plaintiff's constitutional claim that the defendants
“refused to take checks or credit cards as payment for bail”).
*7 Finally, the Sheriff's Department did not violate
Plaintiff's constitutional rights by incorrectly advising him
that he could pay the full purge amount via credit card. Simply
put, such miscommunications do not qualify as constitutional
fouls. See Blackburn v. Wash. Dep't of Soc. & Health Servs.,
No. 11-CV-5385, 2011 WL 3563741, at *2 (W.D. Wash.
Aug. 12, 2011) (finding that, where “a miscommunication
occurred over the course of one weekend,” this “regrettable
mistake” did not “amount[ ] to a violation under ... the
Constitution because it was unintentional and brief”), aff'd,
472 F. App'x 569 (9th Cir. 2012); cf. Brown v. Strickland,
No. 09-CV-3248, 2009 WL 3414344, at *1 (S.D. Tex. Oct.
20, 2009) (“Neither simple negligence nor gross negligence
is enough for constitutional liability. A simple mistake does
not violate the Constitution.” (citation omitted)).
Because Defendants’ refusal to allow Plaintiff to pay more
than $10,000 via credit card towards purging his contempt
does not rise to the level of a constitutional violation,
Plaintiff's procedural due process claim must be dismissed. 8
b. Substantive Due Process 9
The Court considers whether Plaintiff's prolonged detention
was arbitrary. See Wolff v. McDonnell, 418 U.S. 539, 558
(1974). “Substantive due process protects against government
action that is arbitrary, conscience-shocking, or oppressive in
a constitutional sense, but not against government action that
is incorrect or ill advised.” Cunney v. Bd. of Trs., 660 F.3d 612,
626 (2d Cir. 2011) (citation omitted). “In order to shock the
conscience and trigger a violation of substantive due process,
official conduct must be outrageous and egregious under the
circumstances; it must be truly brutal and offensive to human
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dignity.” Lombardi v. Whitman, 485 F.3d 73, 81 (2d Cir. 2007)
(citation and quotation marks omitted).
*8 “[U]nder the Due Process Clause, a detainee may not
be punished prior to an adjudication of guilt in accordance
with due process of law.” Bell v. Wolfish, 441 U.S. 520, 535
(1979). An individual who has not been adjudged guilty of
a crime, like Plaintiff, may therefore only be subjected to
the restrictions of a detention facility so long as they “do
not amount to punishment.” Fusco v. County of Putnam, No.
15-CV-08132, 2018 WL 1889070, at *7 (S.D.N.Y. Apr. 18,
2018) (citing Bell, 441 U.S. at 536). The Second Circuit
has recognized that in assessing whether prison restrictions
imposed on individuals without criminal convictions comport
with substantive due process, “a court must decide whether
the restriction is imposed for the purpose of punishment
or whether it is but an incident of some other legitimate
governmental purpose.” Almighty Supreme Born Allah v.
Milling, 876 F.3d 48, 61 (2d Cir. 2017) (alterations omitted)
(quoting Bell, 441 U.S. at 538). 10
When executive action “infringes a protected right, a plaintiff
must show not just that the action was literally arbitrary, but
that it was ‘arbitrary in the constitutional sense.’ ” O'Connor
v. Pierson, 426 F.3d 187, 203 (2d Cir. 2005) (citation omitted).
In other words, only conduct that “shocks the conscience”
will form the basis for a substantive due process violation
for executive action. Id. In the Second Circuit, “whether
executive action shocks the conscience depends on the state
of mind of the government actor and the context in which the
action was taken.” Id.
Plaintiff claims that his release was delayed 30 hours.
(Compl. ¶ 53.) This detention period is distinguishable
from Lynch, which Plaintiff cites to argue that prolonged
detention may violate due process. (Pl.’s. Mem. 16–17.) In
Lynch, the court found that a city violated the plaintiff's
substantive due process rights with its practice of forcing
detainees who had already paid bail to remain detained
until a critical mass formed, with no justification other than
convenience. 335 F. Supp. 3d at 655. Here, unlike in Lynch,
Plaintiff has not alleged that Defendants have a formal
policy of prolonging the release of incarcerated individuals
by transferring them elsewhere. (See generally Compl.) Nor
has Plaintiff alleged that Defendants deprived him of the
ability to purge contempt. See supra (discussing the absence
of a constitutional right to make bail payments via credit
card). Therefore, the Sheriff Department's decision to delay
Plaintiff's release after it mistakenly accepted his payment
does not rise to a level that is “arbitrary in the constitutional
sense.’ ” O'Connor, 426 F.3d at 203. Nor does a credit card
cap “shock[ ] the conscience.” Id.; see also Davidson v.
City of Bridgeport, 487 F. App'x 590, 592 (2d Cir. 2012)
(summary order) (holding that to establish “egregious and
conscience-shocking” behavior, the plaintiff must show that
the municipality “engaged in deliberate malfeasance”). Thus,
Plaintiff's Fourteenth Amendment substantive due process
claim is dismissed.
3. Eighth Amendment
Next Plaintiff claims that the delay in release time violated
his Eighth Amendment rights. (Compl. ¶¶ 49–51.) Because
Plaintiff was incarcerated due to an official order of
commitment for failure to pay spousal support and not a
criminal conviction, his delayed release claim falls under the
Due Process Clause of the Fourteenth Amendment, rather
than the Cruel and Unusual Punishments Clause of the Eight
Amendment. Darnell v. Pineiro, 849 F.3d 17, 29 (2d Cir.
2017). While a detainee's rights are “at least as great as
the Eighth Amendment protections available to a convicted
prisoner,” id. (quoting City of Revere v. Mass. Gen. Hosp.,
463 U.S. 239, 244 (1983)), as discussed, Plaintiff has failed
to allege a Due Process claim. Further, because Plaintiff was
not a criminal defendant, it is unclear that he is protected by
the Eighth Amendment Excessive Bail Clause. See Kehl, 456
F.2d at 868–69. Even if he were, Plaintiff alleges that the
state court set his purge amount, (see Compl. ¶ 16; see also
Order of Commitment), and Plaintiff does not name the state
court as a defendant, see supra Footnote 5. Plaintiff's Eighth
Amendment claim is therefore dismissed. 11
III. Conclusion
*9 For the foregoing reasons, Moving Defendants’ Motion
To Dismiss is granted. Because this is the first adjudication of
Plaintiff's claims, the dismissal is without prejudice. Plaintiff
may file an amended complaint within 30 days of the date of
this Opinion & Order. Failure to file an amended complaint
could result in dismissal of this case with prejudice. The Clerk
of the Court is respectfully directed to terminate the pending
Motion, (Dkt. No. 25).
SO ORDERED.
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All Citations
Not Reported in Fed. Supp., 2021 WL 4392422
Footnotes
1 Plaintiff does not appear to contest this payment figure. (See generally Pl.’s Mem.) Indeed, he incorporates
it into his brief. (See id. at 3, 12.)
2 Because the Complaint is not paginated, the Court refers where there are no paragraph numbers to the ECF-
generated page numbers in the upper right-hand corner.
3 The Court may take judicial notice of the structure of the Orange County government because it is “capable
of accurate and ready determination by resort to sources whose accuracy cannot reasonably be questioned.”
Gagnon v. Alkermes PLC, 368 F. Supp. 3d 750, 763 (S.D.N.Y. 2019) (citing Kramer, 937 F.2d at 774),
reconsideration denied in part, No. 17-CV-9178, 2019 WL 2866113 (S.D.N.Y. July 2, 2019); cf. Gjolaj v.
Bureau of Citizenship & Immigr. Servs., 468 F.3d 140, 143 n.2 (2d Cir. 2006) (holding that a court may take
judicial notice of “a fundamental change in the political structure and government of Albania”).
4 The Court notes that the order of commitment provided “how much [Plaintiff] should pay ... in order to purge
himself from contempt,” which is one requirement for facial validity under New York law. See Garenani v.
County of Clinton, 552 F. Supp. 2d 328, 333 (N.D.N.Y. 2008) (citing Loeber v. Teresi, 681 N.Y.S.2d 416, 419
(App. Div. 1998)); see also N.Y. JUD. LAW § 774(1) (requiring that a commitment order “specify the amount
of the fine, and the duration of the imprisonment”).
5 Plaintiff alleges that the state court refused to sign the release order, (see Compl. ¶ 21; Pl.’s Mem. 11), and
arbitrarily changed the purge conditions, (see Compl. ¶ 30; Pl.’s Mem. 2, 4, 10, 14). The Court does not
consider these claims because the state court is neither a defendant in this Action nor a County employee.
See N.Y. JUD. LAW § 39(6) (“[A]ll justices, judges, and nonjudicial officers and employees of the courts and
court-related agencies of the unified court system ... shall be employees of the state of New York ....”). For
the same reason, the Court rejects Plaintiff's argument that the state court failed to allow the required ten-
day notice before considering Plaintiff's ex-wife's contempt application. (See Pl.’s Mem. 9.)
6 Plaintiff briefs only the issue of qualified immunity, which is not relevant to the issue of quasi-judicial immunity.
As such, the Court does not address it. (See Pl.’s Mem. 22–23.)
7 The Court assumes without deciding that Plaintiff enjoys due process protections equivalent to those provided
by the Eighth Amendment Excessive Bail Clause, even though he was detained for civil contempt. Cf. U. S.
ex rel. Goodman v. Kehl, 456 F.2d 863, 868–69 (2d Cir. 1972) (“How far, in light of the rather obvious thrust
of the Eighth Amendment toward criminal prosecutions, these principles apply to orders for civil contempt
whose purpose is not to punish but to secure obedience to a court's processes may be a different question.”).
8 Plaintiff's false imprisonment claim, (see Compl. ¶ 52), is dismissed for the same reason. Federal courts
look to New York law to determine the elements of a cause of action for false imprisonment. See Tobias
v. County of Putnam, 191 F. Supp. 2d 364, 375 (S.D.N.Y. 2002). Under New York law, “where a facially
valid order issued by a court with proper jurisdiction directs confinement, that confinement is privileged and
everyone connected with the matter is protected from liability for false imprisonment.” Aponte v. Fischer, No.
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14-CV-3989, 2020 WL 1911190, at *10 (S.D.N.Y. Aug. 20, 2020) (citing Holmberg v. County of Albany, 738
N.Y.S.2d 701, 703 (App. Div. 2002)).
9 While a plaintiff may simultaneously assert liberty interests based on procedural and substantive due process
protection, if the Court finds that “the claim for substantive due process is subsumed by” the procedural due
process claim, “it must be dismissed.” Rother v. NYS Dep't of Corr. & Cmty. Supervision, 970 F. Supp. 2d 78,
100 (N.D.N.Y. 2013); see also Cherry v. N.Y.C. Hous. Auth., 15-CV-6949, 2017 WL 4357344, at *29 (E.D.N.Y.
Sept. 29, 2017) (“Plaintiff fails to state a claim for a violation of substantive due process because [that] claim
is based on the same facts as his procedural due process claim.”); Ratajack v. Brewster Fire Dep't, Inc., 178
F. Supp. 3d 118, 147 (S.D.N.Y. 2016) (holding that “the overwhelming majority of [the plaintiff's] claims fall
into ambit of other provisions of the Constitution,” including the Due Process Clause, “thereby closing off [the
plaintiff's] ability to seek relief by invoking the concept of substantive due process”); Monko v. Cusack, No.
11-CV-1218, 2013 WL 5441724, at *3 (N.D.N.Y. Sept. 27, 2013) (dismissing substantive due process claim
where it “overlaps both his procedural due process claim and his retaliation claim” (citing Rother, 2013 WL
4774484, at *14)). Here, as Plaintiff relies on the same facts in both claims, Plaintiff's substantive due process
claim is subsumed by his procedural due process claim, and is dismissed on this independent basis.
10 Although the Second Circuit was specifically addressing the substantive due process rights of pre-trial
detainees in Milling, the reasoning appears to apply with equal force to Plaintiff. See Fusco, 2018 WL
1889070, at *5 n.3 (analogizing the due process analysis for pre-trial detainees to the due process analysis
for incarcerated civil contemnors).
11 Because Plaintiff fails to allege a violation of his constitutional rights, he cannot maintain a Monell claim.
See Roe v. City of Waterbury, 542 F.3d 31, 36 (2d Cir. 2008) (listing as a requirement of a Monell claim
that the plaintiff establish “deprivation of a constitutional or statutory right”); see also Pitchell v. Callan, 13
F.3d 545, 549 (2d Cir. 1994) (“If [no individual defendant] inflicted a constitutional injury on [the plaintiff], ‘it
is inconceivable that the [municipality] could be liable to [the plaintiff].’ ” (alterations omitted) (quoting City of
Los Angeles v. Heller, 475 U.S. 796, 799 (1986))).
Even if he had pleaded a violation of his constitutional rights, Plaintiff could not establish a Monell claim
because he has not alleged “that an official policy of the municipality caused [his] constitutional injury.”
Roe, 542 F.3d at 36. (See generally Compl.) This requirement for Monell liability reflects the notion that “a
municipality may not be held liable under § 1983 solely because it employs a tortfeasor.” Bd. of Cnty. Comm'rs
of Bryan Cnty. v. Brown, 520 U.S. 397, 403 (1997); see also Newton v. City of New York, 566 F. Supp. 2d
256, 270 (S.D.N.Y. 2008) (“As subsequently reaffirmed and explained by the Supreme Court, municipalities
may only be held liable when the municipality itself deprives an individual of a constitutional right.”). In other
words, a municipality may not be liable under § 1983 “by application of the doctrine of respondeat superior.”
Pembaur v. City of Cincinnati, 475 U.S. 469, 478 (1986) (italics omitted); see also Vassallo v. Lando, 591
F. Supp. 2d 172, 201 (E.D.N.Y. 2008) (noting that “a municipal entity may only be held liable where the
entity itself commits a wrong”). Instead, there must be a “direct causal link between a municipal policy or
custom and the alleged constitutional deprivation.” City of Canton v. Harris, 489 U.S. 378, 385 (1989); see
also City of St. Louis v. Praprotnik, 485 U.S. 112, 122 (1988) (“[G]overnments should be held responsible
when, and only when, their official policies cause their employees to violate another person's constitutional
rights.”). “In determining municipal liability, it is necessary to conduct a separate inquiry into whether there
exists a ‘policy’ or ‘custom.’ ” Davis v. City of New York, 228 F. Supp. 2d 327, 336 (S.D.N.Y. 2002), aff'd, 75
F. App'x 827 (2d Cir. 2003). Normally, “a custom or policy cannot be shown by pointing to a single instance
of unconstitutional conduct by a mere employee of the [municipality].” Newton, 566 F. Supp. 2d at 271;
Brogdon v. City of New Rochelle, 200 F. Supp. 2d 411, 427 (S.D.N.Y. 2002) (“A single incident by itself is
generally insufficient to establish the affirmative link between the municipal policy or custom and the alleged
unconstitutional violation.”). Here, the only valid defendant is the County. Absent an alleged policy or custom
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that caused constitutional harm, Plaintiff cannot maintain a Monell claim against the County. See Kinsey v.
Ohio, No. 17-CV-982, 2020 WL 1066633, at *1, *4 (S.D. Ohio Mar. 5, 2020), aff'd, No. 20-3315, 2021 WL
1100494 (6th Cir. Jan. 11, 2021) (dismissing the plaintiff's claim because his “amended complaint fail[ed] to
allege that any ... [c]ounty custom or official policy led to a violation of his constitutional rights” where the
plaintiff “offered to pay the ... bail amount by credit card, but ... [the] [c]ounty refused to accept any form of
payment other than cash”).
End of Document © 2026 Thomson Reuters. No claim to original U.S. Government Works.
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Taranto v. Putnam County, Not Reported in Fed. Supp. (2023)
© 2026 Thomson Reuters. No claim to original U.S. Government Works. 1
2023 WL 6318280
Only the Westlaw citation is currently available.
United States District Court, S.D. New York.
George TARANTO, et al., Plaintiffs,
v.
PUTNAM COUNTY, et al., Defendants.
No. 21-CV-2455 (KMK)
|
Signed September 28, 2023
Attorneys and Law Firms
Thomas Martin Gambino, Esq., Law Office of Thomas M.
Gambino & Associates PC, Poughkeepsie, NY, Counsel for
Plaintiffs.
James A. Randazzo, Esq., Portale Randazzo LLP, White
Plains, NY, Counsel for Defendants.
Drew William Sumner, Esq., Sumner Law LLP, White Plains,
NY, Counsel for Defendants.
OPINION & ORDER
KENNETH M. KARAS, District Judge:
*1 Plaintiffs George Taranto (“Taranto”), Karen Taranto,
and Christopher P. Taranto and Kerrianne Taranto-Garabo as
Executors for the Estate of Taranto (altogether, “Plaintiffs”)
bring this Action, pursuant to 42 U.S.C. § 1983, against
Putnam County (“County”), the Putnam County Sheriff's
Office, Sheriff Robert L. Langley, Jr. (“Langley”), Deputy
Sheriff Ronald C. Yeager (“Yeager”), Investigator Daniel
Hunsberger (“Hunsberger”), Deputy Sheriff Ryan Diskin
(“Diskin”), Deputy Sheriff Vincent Dalo (“Dalo”), Sergeant
William Quick (“Quick”), and Officers John Does 1–10
(collectively, “Defendants”), in their individual and official
capacities, alleging several constitutional violations and state
claims. (See generally Second Am. Compl. (Dkt. No. 31).)
Before the Court is Defendants’ Motion to Dismiss (the
“Motion”) the claims in the Second Amended Complaint
(“SAC”) except for the Fourth Amendment excessive force
claim, failure to intervene claims against the on-scene
officers, state law claims for assault, battery, and wrongful
death, and Karen Taranto's claims for loss of consortium, (see
Notice of Defs.’ Mot. To Dismiss (Dkt. No. 32)). 1 For the
following reasons, Defendants’ Motion To Dismiss is granted
in part and denied in part.
I. Background
A. Allegations and Materials Appropriately Considered
As a threshold matter, the Court must determine whether
it may consider the (1) Notice of 50-h Hearing attached to
Defendants’ Motion, (see Dkt. No. 34) or the (2) Langley
Video Interview, New York Attorney General Complaint,
Putnam County Daily Voice News Article, 50-h Adjournment
Letters, and Letter from Dr. Frank Kessler attached to
Plaintiffs’ Opposition (see Dkt No. 38) at this stage of the
litigation. 2
1. Applicable Law
Generally, “[w]hen considering a motion to dismiss, the
Court's review is confined to the pleadings themselves,”
because “[t]o go beyond the allegations in the [c]omplaint
would convert the Rule 12(b)(6) motion to dismiss into one
for summary judgment pursuant to [Rule] 56.” Thomas v.
Westchester Cnty. Health Care Corp., 232 F. Supp. 2d 273,
275 (S.D.N.Y. 2002) (citation omitted). However, “the Court's
consideration of documents attached to, or incorporated by
reference in the [c]omplaint, and matters of which judicial
notice may be taken, would not convert the motion to dismiss
into one for summary judgment.” Id. (citations omitted);
see also Bellin v. Zucker, 6 F.4th 463, 473 (2d Cir. 2021)
(explaining that “when ruling on Rule 12(b)(6) motions to
dismiss,” courts may “consider the complaint in its entirety ...,
documents incorporated into the complaint by reference, and
matters of which a court may take judicial notice” (quotation
marks omitted)); Hu v. City of New York, 927 F.3d 81, 88
(2d Cir. 2019) (“In deciding a Rule 12(b)(6) motion, the
court may consider ‘only the facts alleged in the pleadings,
documents attached as exhibits or incorporated by reference
in the pleadings, and matters of which judicial notice may
be taken.’ ” (alteration omitted) (quoting Samuels v. Air
Transp. Loc. 504, 992 F.2d 12, 15 (2d Cir. 1993))). Under the
Federal Rules of Evidence, a court may take judicial notice
of a fact outside of the pleadings provided that the fact “can
be accurately and readily determined from sources whose
accuracy cannot reasonably be questioned.” Fed. R. Evid.
201(b).
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2. Application
*2 “Generally, a court may incorporate documents
referenced where (1) [the] plaintiff relies on the materials
in framing the complaint, (2) the complaint clearly
and substantially references the documents, and (3) the
document's authenticity or accuracy is undisputed.” Stewart v.
Riviana Foods Inc., No. 16-CV-6157, 2017 WL 4045952, at
*6 (S.D.N.Y. Sept. 11, 2017) (emphasis omitted) (collecting
cases); see also Dunkelberger v. Dunkelberger, No. 14-
CV-3877, 2015 WL 5730605, at *5 (S.D.N.Y. Sept. 30, 2015)
(“To be incorporated by reference, the complaint must make a
clear, definite, and substantial reference to the documents, and
to be integral to a complaint, the plaintiff must have (1) actual
notice of the extraneous information and (2) relied upon the
documents in framing the complaint.” (alterations omitted)
(quoting Bill Diodato Photography LLC v. Avon Prods., Inc.,
No. 12-CV-847, 2012 WL 4335164, at *3 (S.D.N.Y. Sept. 21,
2012))).
Even if not incorporated by reference, a document on which
the complaint “solely relies and which is integral to the
complaint,” Roth v. Jennings, 489 F.3d 499, 509 (2d Cir.
2007) (citation, emphasis, and quotation marks omitted), or
a document on which “the complaint relies heavily on upon
its terms and effect,” DiFolco v. MSNBC Cable L.L.C., 622
F.3d 104, 111 (2d Cir. 2010) (quotation marks omitted), may
also be considered by the Court on a motion to dismiss.
Documents are “integral” where the plaintiff had to rely on
their content “in order to explain what the actual unlawful
course of conduct was on which the [d]efendants embarked.”
Thomas, 232 F. Supp. 2d at 276; see also Gantt v. Ferrara,
No. 15-CV-7661, 2017 WL 1192889, at *14 (S.D.N.Y. Mar.
29, 2017) (holding documents were integral to the complaint
where the plaintiff “relied heavily upon [them] in framing
the [c]omplaint” (alterations in original) (citation omitted)).
Additionally, “no serious question as to [the documents’]
authenticity can exist,” Kramer v. Time Warner Inc., 937 F.2d
767, 774 (2d Cir. 1991), and it must be “clear on the record
that no dispute exists regarding the authenticity or accuracy
of the document,” DiFolco, 622 F.3d at 111 (citation and
quotation marks omitted).
Plaintiffs’ Second Amended Complaint states that
“Defendants have not held a hearing on this claim pursuant
to General Municipal Law 50-h.” (SAC ¶ 21.) That is
Plaintiffs’ sole reference to the 50-h Hearing. (See generally
id.) No Party has attempted to explain how the Notice of
50-h Hearing, 50-h Adjournment Letters, and Letter from
Dr. Frank Kessler regarding Taranto's ability to testify were
clearly referenced in or integral to the Second Amended
Complaint. Indeed, the Second Amended Complaint makes
no reference to these documents and Plaintiffs have not
relied on these documents in framing the Second Amended
Complaint. Accordingly, these documents are not considered
by the Court at this stage. For the same reason, the New
York Attorney General Complaint against the Putnam County
Sheriff's Department, the Putnam County Daily Voice News
Article regarding the DiPippo settlement, and the Langley
Video Interview, which are not mentioned anywhere in the
Second Amended Complaint, cannot be considered.
B. Factual Background
The following facts are drawn from the SAC and materials
attached thereto and are assumed to be true for the purpose of
deciding the instant Motion.
1. Parties
The Putnam County Sheriff's Office was and remains an
agency of Putnam County. (SAC ¶ 5.) Langley, Yeager,
Hunsberger, Diskin, Dalo, Quick, and Officers John Does
1-10 were employed “by Putnam County, by and through
the Putnam County Sheriff's Office and/or Fire Department
personnel and/or Emergency Medical Technicians” and “were
acting within the scope of their employment.” (Id. ¶¶ 6–7.)
Langley “at all relevant times herein was and still is employed
by Putnam County and/or Putnam County Sheriff's Office as
Sheriff of Putnam County” and “supervised the actions of all
subordinate officers of the Putnam County Sheriff's Office
complained of herein.” (Id. ¶¶ 10, 13.) “John Doe 1 was a
Fire Department supervisor present at the time [ ] Taranto
encountered the remaining Defendants” and “John Doe 2-3
are Emergency Medical Technicians present at the time [ ]
Taranto encountered the remaining Defendants.” (Id. ¶¶ 14–
15.)
*3 “Taranto was born on December 25, 1943 and died on
August 25, 2021. His estate was duly formed on November
4, 2021 in Connecticut where he resided with his wife at
the time of his death. Christopher P. Taranto and Kerrianne
Taranto-Garabo, the decedent's children, were appointed by
the Connecticut Probate Court as co-executors for the Estate
of [ ] Taranto and have been substituted herein in his place
and stead.” (Id. ¶ 17.)
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2. Factual Allegations Giving Rise to the Current Action
On July 8, 2019 at approximately 2:00 AM while lawfully
at his residence located at 202 Apple Tree Lane, Brewster,
New York, Taranto heard noise outside his residence and saw
flashlights by his window. (Id. ¶¶ 24–25.) Taranto exited his
home and stood on his driveway with his lawfully possessed
firearm at his side pointing downward towards the ground.
(Id. ¶¶ 26–27.) Taranto heard multiple Defendants screaming
at him to drop his firearm and raise his hands. (Id. ¶ 28.)
Taranto complied with the orders and placed his firearm on
the pavement and raised his hands. (Id. ¶ 29.) Taranto further
complied with Defendants’ orders to walk towards them. (Id.
¶ 30.)
Dalo then approached Taranto from behind and “violently
threw him to the ground, banging his head on the ground,
repeatedly striking him and smashing his face upon the
pavement.” (Id. ¶ 31.) “Thereafter, all Defendants continued
to use force upon a prone and helpless [ ] Taranto as he lie
face-down on the pavement experiencing difficulty breathing
and chest pains.” (Id. ¶ 32.) “Defendants, [ ] Yeager, [ ] Diskin,
[ ] Dalo, [ ] Quick and/or John Does 1–10 proceeded to throw
him to the ground, beat him about the face, head[,] and body
with at least closed fists, grind his head and face on the ground
and severely brutalize him.” (Id. ¶ 40.)
During Taranto's arrest, Defendants believed Taranto to be
emotionally disturbed and believed he was “verbally non-
compliant.” (Id. ¶¶ 33, 37.) Taranto was a 75-year-old, “frail
man suffering from early dementia,” and had recently had
open heart surgery at the time of the incident. (Id. ¶¶ 33, 39.)
Plaintiffs allege Defendants were aware of these facts at the
time of the incident. (Id. ¶ 39.) Plaintiffs further allege that
“[d]espite believing [ ] Taranto to be an emotionally disturbed
person, Defendants failed to utilize a process or procedure to
[e]nsure his safety.” (Id. ¶ 34.) Plaintiffs additionally allege
that “[d]uring the course of [ ] Taranto's arrest, the Defendants
did not believe [ ] Taranto to have used deadly physical
force against them.” (Id. ¶ 35.) Defendants “eventually placed
handcuffs” on Taranto while under the supervision of Quick.
(Id. ¶ 41.) “As the supervisor in charge, [ ] Quick was
responsible for the overall actions of the subordinate officers
on scene, including the treatment of [ ] Taranto and the force
used upon him.” (Id. ¶ 42.)
“Taranto was detained in handcuffs in the rear seat of a
police vehicle while pleading for help from law enforcement
personnel on scene due to the excruciating pain caused by
handcuffs placed on him that were fastened too tight.” (Id.
¶ 44.) Taranto was removed from the scene while informing
Defendants he was “experiencing chest pains and sustained
physical injuries to his face, head, and body.” (Id. ¶ 45.)
“Defendants refused to permit [ ] Taranto to receive proper
medical attention at the scene or to be removed from the
scene via ambulance.” (Id. ¶ 46.) “Any first aid provided
at the scene by Fire Department personnel or Emergency
Medical Technicians present at the scene was insufficient
and inadequate to address [ ] Taranto's medical distress.” (Id.
¶ 48.) Plaintiffs also allege that “[a]ny Fire Department
personnel or Emergency Medical Technicians present on
scene conspired with the remaining Defendants to conceal
and/or cover up Defendants’ excessive use of force utilized
upon [ ] Taranto and the injuries caused to him.” (Id. ¶ 49.)
Taranto was eventually moved to Putnam County Hospital
while in Defendants’ custody unbeknownst to his family. (Id.
¶ 50.)
*4 Defendants entered Taranto's home without his or
Karen Taranto's consent. (Id. ¶ 51.) Once inside the home,
Defendants demanded Karen Taranto show them Taranto's
pistol permit and stated “they almost killed her husband and
would only tell her that he had been arrested.” (Id. ¶¶ 52–53.)
Defendants did not advise her that her husband was going to
a hospital or that he was injured. (Id. ¶ 54.) Defendants left
Taranto at the hospital after placing a criminal court summons
in his pocket charging him with Menacing in the Second
Degree “unattended and without notifying his family who
several hours later received a phone call from a nurse at the
hospital.” (Id. ¶¶ 55–56.) Plaintiffs attach an appearance ticket
for Taranto with the charge of Menacing in the Second Degree
to the Second Amended Complaint. (SAC Ex. 4.) A nurse
from Putnam Hospital called Karen Taranto to inform her that
her husband was placed on life support after suffering cardiac
and respiratory failure and pulmonary edema. (SAC ¶ 57.)
Because Taranto was unable to breathe on his own, he was
placed on a respirator—he remained unconscious for several
days and was in critical condition. (Id. ¶¶ 58–59.) Taranto
was removed to Danbury Hospital via ambulance given the
critical nature of his injuries. (Id. ¶ 60.) After recovering
consciousness and regaining the ability to breathe on his own,
Taranto was released from the hospital. (Id. ¶ 61.)
On September 1, 2019, Taranto woke up and realized he was
unable to walk. (Id. ¶ 62.) Taranto was taken to Danbury
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Hospital where a scan revealed that he had “brain bleeds as
a direct result of the brutal attack.” (Id. ¶ 63.) The following
day, Taranto underwent surgery to relieve the bleeding and
pressure on his brain. (Id. ¶ 64.) Taranto lost control of his
bladder as a result of the surgery and had permanent reduced
motor skills and cognitive ability. (Id. ¶¶ 66–67.) Taranto
remained in the hospital for another seven days and then
began physical rehabilitation treatment. (Id. ¶ 65.)
Plaintiffs allege that the “Defendants herein have covered-
up Defendants’ collective misconduct and violent tendencies
of the Defendants, including but not limited to Defendant
Quick.” (Id. ¶ 72.) “After knowing that the original
information disseminated concerning [ ] Taranto was false,
Defendants engaged in a course of conduct to continue its
malicious prosecution of [ ] Taranto after falsely arresting
him and criminally charging him in an attempt to justify
and cover-up their prior false statements and misconduct”
and “Defendants thereafter tampered with potential witnesses
seeking to obtain false testimony from them and coerce[d]
them to falsely testify against [ ] Taranto in criminal
court.” (Id. ¶¶ 76–77.) “Defendants have fabricated evidence
against [ ] Taranto in an effort to conceal their wrongful
actions.” (Id. ¶ 87.)
Plaintiffs additionally allege that “Defendants failed to
disclose criminal discovery in a timely fashion and/or at
all” and that “Defendants maintain a pattern, policy and/
or practice whereby criminal discovery is not provided in
a timely fashion and/or at all.” (Id. ¶¶ 82–83.) Defendants
provided the Putnam County District Attorney's Office
documents which have been provided to Taranto's criminal
defense attorney which “came after various filings as part
of this present litigation apparently in response to those
filings.” (Id. ¶¶ 88–89.) “Criminal Discovery was initially
provided to defense counsel by the Putnam County District
Attorney's Office on September 10, 2020, with Supplemental
Disclosure being provided on November 16, 2020, April 6,
2021 and May 27, 2021”—the “May 27, 2021 Supplemental
Discovery was made seven days after Plaintiffs’ counsel filed
his response to Defendants’ pre-motion letter.” (Id. ¶¶ 90–91.)
“Other than document number 28, the disclosure presented
as part of the May 27, 2021 Supplemental Discovery existed
before the initial discovery response was made on September
10, 2020 but were not provided at that time.” (Id. ¶ 92.) “One
such document ... purports to be an internal investigation
allegedly performed by Defendants pursuant to the arrest of
George Taranto,” which “is alleged to have started on July 8,
2019 and ended one-year later on July 9, 2020 resulting in
Defendant Langley condoning the actions of the Defendants
herein.” (Id. ¶¶ 93–94.) “This document, along with other
documents provided by Defendants as part of [ ] Taranto's
criminal prosecution, have been fabricated by the Defendants
in an effort to conceal their wrong-doing.” (Id. ¶ 95.) “[T]his
report was not disclosed as part of the original criminal
disclosure on September 10, 2020 or either Supplement
disclosure on November 16, 2020 or April 6, 2021.” (Id. ¶
96.) Plaintiffs attach a list of materials disclosed to defense
counsel on different dates, beginning in September 2020 and
ending in May 2021. (SAC Ex. 9.)
*5 Plaintiffs point to “misconduct committed by the
Defendants in the matter of DiPippo v. County of Putnam,
et al. where Defendants, among other things, also failed to
disclose criminal discovery.” (SAC ¶ 84.) “In the matter of
DiPippo v. County of Putnam, Defendant Quick was also one
of the defendants who failed to disclose and apparently hid
criminal discovery.” (Id. ¶ 85.) 3
The complaint arrest report attached to Plaintiffs’ Second
Amended Complaint July 8, 2019, reported by Yeager and
reviewed by Quick, states:
ON 07/08/2019 AT APPROXIMATELY 0310 HOURS,
MEMBERS WERE INVESTIGATING A STOLEN
VEHICLE INCIDENT AT 201 APPLE TREE LN IN
THE TOWN OF SOUTHEAST. WHILE STANDING IN
THE PARKING LOT OUTSIDE OF SAID RESIDENCE,
AN OLD WHITE MALE, GEORGE C TARANTO
DOB ... 1943, EXITED HIS RESIDENCE AT 202 APPLE
TREE LANE AND WALKED UP TO INVESTIGATOR
HUNSBERGER. INV HUNSBERGER TURNED TO
ASK THE MAN TO GO BACK INTO HIS RESIDENCE
WHEN MEMBER OBSERVED INV HUNSBERGER
RUN TO COVER AND HEARD INV HUNSBERGER
YELL “HES GOT A GUN”.
DEPUTY DALO, DEPUTY DISKIN, SERGEANT
QUICK AND MYSELF ALL DREW OUR SERVICE
WEAPONS AND ORDERED MR. TARANTO
NUMEROUS TIMES TO PUT DOWN HIS WEAPON
AND PUT HIS HANDS IN THE AIR. MR. TARANTO
DID NOT INITALLY COMPLY WITH ORDERS
AND TOOK COVER BEHIND A VEHICLE. ALL
MEMBERS CLEARLY STATED MULTIPLE TIMES
THAT WE WERE POLICE FROM THE SHERIFF'S
OFFICE. AFTER MULTIPLE ORDERS TO PUT
DOWN HIS WEAPON, MR. TARANTO COMPLIED,
PUT HIS WEAPON DOWN ON THE PAVEMENT,
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AND LISTENED TO ORDERS TO WALK TOWARD
DEPUTIES. AT THIS TIME DEPUTY DALO WAS
ABLE TO SNEAK UP BEHIND MR. TARANTO AND
BRING HIM TO THE GROUND. ALL MEMBERS
THEN ASSISTED TRYING TO GET MR. TARANTO
IN HANDCUFFS. MR. TARANTO WAS ORDERED
NUMEROUS TIME TO PUT HIS HANDS BEHIND HIS
BACK BUT CONTINUED TO KEEP THEM LOCKED
UNDER HIS BODY. MEMBERS WERE ABLE TO FREE
MR. TARANTO'S ARMS AND GET THEM BEHIND
HIS BACK SO THAT HE COULD BE PLACED IN
HANDCUFFS.
EMS WAS CALLED TO THE SCENE TO EVALUATE
MR. TARANTO FOR ANY INJURIES. HE WAS
TRANSPORTED BY AMBULANCE TO PUTNAM
HOSPITAL CENTER FOR FURTHER EVALUATION.
MEMBER FOLLOWED THE AMBULANCE TO PHC
AND ISSUED MR. TARANTO AN APPEARANCE
TICKET FOR THE TOWN OF SOUTHEAST COURT
FOR THE CHARGE OF MENACING IN THE 2ND
DEGREE (PL 120.14(1)) FOR 08/01/2019 AT 1800
HOURS AT WHICH TIME HE WILL BE ARRAIGNED.
MEMBER ALSO CHARGED MR. TARANTO WITH
CRIMINAL POSSESSION OF A WEAPON IN THE
4TH DEGREE (VTL 265.01(2)), RESISTING ARREST
(PL 205.30) AND OBSTRUCTING GOVERNMENTAL
ADMINISTRATION IN THE 2ND DEGREE (PL 195.05).
THE COLT MUSTANG .380 PISTOL WITH A FULL
MAGAZINE OF AMMUNITION
(SAC Ex. 3.) Additionally attached to the Second Amended
Complaint is a use of force form prepared by Quick
indicating that Taranto was emotionally disturbed, that he
resisted through “Verbal Non Compliance,” “Verbal Threats/
Gestures” and “Physically Uncooperative (Resisting),” that
“verbal command,” “physical direction,” “impact weapon,”
and “hands” were used to control Taranto, and that “suspect
was tackled then physically restrained” and sustained
“laceration to head/shoulder pain.” (SAC Ex. 5.)
Plaintiffs additionally attach a Putnam County Sheriff's
Department Personnel Investigation conducted by Kevin
McManus which lists personnel involved as Quick, Diskin,
Dalo, Yeager, Hunsberger, and Investigator Ryan McMahon
and states that:
*6 On 07/08/2019, the afore
mentioned Sheriff's Office members
were investigating a stolen vehicle
complaint on Apple Tree Lane within
Reed Farm, located in the T/O
Southeast. During the investigation,
the defendant exited his residence
of 202 Apple Tree Lane holding a
unholstered handgun. The defendant
was ordered to drop his weapon
multiple times over the course of 3
minutes. Upon the defendant finally
placing his weapon on the ground, he
was taken to the ground by Deputy
Dalo and assisted by other members.
The defendant continued to struggle
while members attempted to handcuff
him. As a result of being taken to
the ground, the defendant sustained a
small cut or rash to his head.
(SAC Ex. 8.) The Recommendation of Investigating Officer
stated that:
All Sheriff's Office members on scene
acted within the scope of their duties
in assisting with effecting a lawful
arrest of the defendant. Furthermore,
all Sheriff's Office members acted
within the scope of the New York State
Penal Law as it pertains to Article 35 as
well as within the rules and regulations
of the Putnam County Sheriff's
Department in effecting said arrest
using the minimum force necessary.
Since Sgt, Quick was directly involved
in the incident, member believes any
investigation should be conducted by
his direct supervisor. Sheriff's Office
Rules and Regulations Article 8.lA, in
effect at the time of this incident states
Any injury to a prisoner whether the
injury occurred while the subject was
being taken into custody or while the
person was in custody of the Putnam
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County Sheriff's Department shall be
the subject of an internal investigation,
Member observed video and spoke
with Sgt, Quick and several of the
Deputies involved after the incident
and investigation determined that the
there was no improper conduct on the
part of any Sheriff's Office member on
scene. Member used my discretion in
determining there was no need for a
detailed written report.
(Id.) The report is signed by Langley, among others, stating
“no action needed, acceptable force used on combative
subject was armed with a firearm which was still within
reach.” (Id.) Plaintiffs, citing to this document, allege Langley
“ ‘rubber stamped’ an approval of the treatment of [ ] Taranto
while in police custody.” (SAC ¶ 86.) “Defendant Langley's
deliberate indifference to ‘rubber stamp’ his deputies[’]
misconduct during an election year is nothing more than
an attempt to protect his position rather than addressing the
misconduct of his deputies.” (Id. ¶ 106.)
Finally, Plaintiffs attach Taranto's Information signed by
Yeager for Menacing in the Second Degree, Criminal
Possession of a Weapon in the Fourth Degree, Resisting
Arrest, Obstructing Governmental Administration in the
Second Degree, based upon the following facts, respectively:
The said defendant, at or about 03:10 hours on the aforesaid
date, while in front of 202 Apple Tree Ln in the Town of
Southeast, County of Putnam, New York, did intentionally
place or attempt to place members of the Putnam
County Sheriff's Office in reasonable fear of physical
injury, serious physical injury or death. Specifically, your
defendant placed Investigator Hunsberger, Deputy Diskin,
Deputy Dalo, Deputy Yeager and Sergeant Quick in
reasonable fear of physical injury, serious physical injury
or death by displaying a Colt Mustang .380 pistol.
The said defendant, at or about 03:10 hours on the aforesaid
date, at 202 Apple Tree Ln, in the Town of southeast,
County of Putnam, New York, was in possession of a Colt
Mustang .380 pistol with intent to use the same unlawfully
against another.
The said defendant, at or about 03:10 hours on the aforesaid
date, while at 202 Apple Tree Ln in the Town of Southeast,
County of Putnam, New York, did intentionally prevent or
attempt to prevent members of the Putnam County Sheriff's
Office from effecting an authorized arrest of himself, in
that the defendant did physically struggle with members to
avoid being handcuffed.
*7 The said defendant, at or about 03:10 hours on the
aforesaid date, at 202 Apple Tree Ln, in the Town of
Southeast, County of Putnam, New York, did intentionally
prevent or attempt to prevent members of the Putnam
County Sheriff's Office from performing an official
function by means of intimidation, physical force or
interference, or by means of an independently unlawful act
in that he menaced police officers with a firearm which
interfered with an official police investigation.
(SAC Ex. 10.)
C. Procedural History
Plaintiffs filed their original Complaint on March 19, 2021,
(Dkt. No. 1), their Amended Complaint on July 12, 2021,
(Dkt. No. 14), and their Second Amended Complaint on
January 10, 2022, (Dkt. No. 31). Defendants filed their
Motions to Dismiss and accompanying Memorandum of Law
on January 21, 2022. (See Not. of Mot. (Dkt. No. 32); Mem.
of Law in Supp. of Mot. (“Defs.’ Mem.”) (Dkt. No. 33).)
Plaintiffs filed their Opposition on February 18, 2022. (See
Mem. of Law for Reply to Mot. to Dismiss (“Pls.’ Mem.”)
(Dkt. No. 37).) Plaintiffs additionally filed a motion to amend
that same day. (Dkt. No. 39).) Defendants filed their Reply
(see Reply to Mot. (“Defs.’ Reply Mem.”) (Dkt. No. 40)), and
their Opposition to Plaintiffs’ motion to amend on March 4,
2022, (Dkt. No. 41). Plaintiffs filed their Reply to Defendants’
Opposition to Plaintiffs’ motion to amend on March 9, 2022.
(Dkt. No. 42.)
II. Discussion
A. Standard of Review
The Supreme Court has held that although a complaint
“does not need detailed factual allegations” to survive a
Rule 12(b)(6) motion to dismiss, “a plaintiff's obligation to
provide the grounds of his entitlement to relief requires more
than labels and conclusions, and a formulaic recitation of
the elements of a cause of action will not do.” Bell Atl.
Corp. v. Twombly, 550 U.S. 544, 555 (2007) (alteration and
quotation marks omitted). Indeed, Rule 8 of the Federal
Rules of Civil Procedure “demands more than an unadorned,
the-defendant-unlawfully-harmed-me accusation.” Ashcroft
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v. Iqbal, 556 U.S. 662, 678 (2009). “Nor does a complaint
suffice if it tenders naked assertions devoid of further factual
enhancement.” Id. (alteration and quotation marks omitted).
Rather, a complaint's “[f]actual allegations must be enough to
raise a right to relief above the speculative level.” Twombly,
550 U.S. at 555. Although, “once a claim has been stated
adequately, it may be supported by showing any set of facts
consistent with the allegations in the complaint,” id. at 563,
and a plaintiff must allege “only enough facts to state a
claim to relief that is plausible on its face,” id. at 570, if
a plaintiff has not “nudged [his] claim[ ] across the line
from conceivable to plausible, the[ ] complaint must be
dismissed,” id.; see also Iqbal, 556 U.S. at 679 (“Determining
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. But
where the well-pleaded facts do not permit the court to infer
more than the mere possibility of misconduct, the complaint
has alleged—but it has not ‘show[n]’—‘that the pleader is
entitled to relief.’ ” (second alteration in original) (citation
omitted) (quoting Fed. R. Civ. P. 8(a)(2))); id. at 678–79.
(“Rule 8 marks a notable and generous departure from the
hypertechnical, code-pleading regime of a prior era, but it
does not unlock the doors of discovery for a plaintiff armed
with nothing more than conclusions.”).
*8 “[W]hen ruling on a defendant's motion to dismiss,
a judge must accept as true all of the factual allegation
contained in the complaint,” Erickson v. Pardus, 551 U.S. 89,
94 (2007) (per curiam), and “draw all reasonable inferences
in the plaintiff's favor,” Div. 1181, 9 F.4th at 95 (citation
omitted). Additionally, “when ruling on a Rule 12(b)(6)
motion to dismiss,” district courts are directed to confine their
consideration to “the complaint in its entirety, ... documents
incorporated into the complaint by reference, and matters of
which a court may take judicial notice.” Bellin v. Zucker, 6
F.4th 463, 473 (2d Cir. 2021) (quotation marks omitted); see
also Dashnau v. Unilever Mfg. (US), Inc., 529 F. Supp. 3d
235, 240 (S.D.N.Y. 2021) (same).
B. Analysis
1. False Arrest
A § 1983 claim for false arrest “rest[s] on the Fourth
Amendment right of an individual to be free from
unreasonable seizures, including arrest without probable
cause.” Weyant v. Okst, 101 F.3d 845, 852 (2d Cir. 1996). A §
1983 false arrest claim “is substantially the same as a claim of
false arrest under New York law.” Id. New York law requires
a plaintiff to show “that (1) the defendant intended to confine
him, (2) the plaintiff was conscious of the confinement, (3)
the plaintiff did not consent to the confinement[,] and (4) the
confinement was not otherwise privileged.” Toussaint v. Cnty.
of Westchester, No. 21-CV-03817, 2022 WL 2834108, at *5
(S.D.N.Y. July 20, 2022). “[T]he existence of probable cause
to arrest constitutes justification and is a complete defense to
an action for false arrest ... under § 1983.” Dillon v. Rosen,
No. 22-CV-7035, 2022 WL 4538397, at *3 (S.D.N.Y. Sept.
28, 2022) (quoting Jenkins v. City of N.Y., 478 F.3d 76, 84 (2d
Cir. 2007)); see also Figueroa v. Mazza, 825 F.3d 89, 99 (2d
Cir. 2016) (“The existence of probable cause to arrest ... will
defeat a claim of false arrest under the Fourth Amendment.”).
“[A] claim for false arrest will not lie so long as the arresting
officer had probable cause to arrest the plaintiff for some
crime.” Jaegly v. Couch, 439 F.3d 149, 150 (2d Cir. 2006).
Generally speaking, officers have probable cause to arrest
when they have “reasonably trustworthy information as to
facts and circumstances that are sufficient to warrant a person
of reasonable caution in the belief that an offense has been
committed by the person to be arrested.” Ackerson v. City
of White Plains, 702 F.3d 15, 19 (2d Cir. 2012) (internal
quotation marks and alterations omitted). As the Second
Circuit recently observed:
To determine the existence of probable cause, a court
considers the totality of the circumstances, based on ‘a full
sense of the evidence that led the officer to believe that
there was probable cause to make an arrest.’ The court
considers those facts available to the officer at the time of
the arrest and immediately before it. The significance of
each of these factors may be enhanced or diminished by
surrounding circumstances.
Guan v. City of New York, 37 F.4th 797, 804 (2d Cir. 2022)
(quotation marks and citations omitted).
Moreover, “[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)). “The qualified immunity defense, thus, is a broad
shield that protects ‘all but the plainly incompetent or those
who knowingly violate the law.’ ” Kass v. City of N.Y.,
864 F.3d 200, 206 (2d Cir. 2017) (quoting Zalaski v. City
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of Hartford, 723 F.3d 382, 389 (2d Cir. 2013)). “[I]n the
qualified immunity context, an officer invoking the probable
cause defense need only establish that he or she acted with
arguable probable cause[.]” Schlaepfer v. City of N.Y., No. 20-
CV-3339, 2022 WL 4484571, at *9 (S.D.N.Y. Sept. 27, 2022)
(quotation marks omitted); Kass, 864 F.3d at 206 (“An officer
is entitled to qualified immunity from a federal false arrest
and imprisonment claim if he had arguable probable cause to
arrest the plaintiff for any offense, regardless of the offense
with which the plaintiff was actually charged.”). “Arguable
probable cause exists if either (a) it was objectively reasonable
for the officer to believe that probable cause existed, or (b)
officers of reasonable competence could disagree on whether
the probable cause test was met.” Falls v. (Police Officer)
Detective Michael Pitt, No. 16-CV-8863, 2021 WL 1164185,
at *12 (S.D.N.Y. Mar. 26, 2021) (quoting Walczyk v. Rio, 496
F.3d 139, 163 (2d Cir. 2007)); see also Amore v. Novarro, 624
F.3d 522, 536 (2d Cir. 2010) (same).
*9 Defendants argue there existed probable cause to arrest
Taranto for, among other offenses, criminal possession of a
weapon in the fourth degree. (Defs.’ Mem. 4–9.) “A person is
guilty of criminal possession of a weapon in the fourth degree
when ... [h]e or she possesses any dagger, dangerous knife,
dirk, machete, razor, stiletto, imitation pistol, undetectable
knife[,] or any other dangerous or deadly instrument or
weapon with intent to use the same unlawfully against
another[.]” N.Y. Penal Law § 265.01(2). “Crucially, for the
charge of criminal possession of a weapon in the fourth
degree, ‘the element of intent to use a dangerous instrument
unlawfully can be presumed from a finding that defendant
possessed a dangerous instrument.’ ” Curanaj v. Cordone,
No. 10-CV-5689, 2012 WL 4221042, at *11 (S.D.N.Y.
Sept. 19, 2012) (quoting People v. Campbell, 450 N.Y.S.2d
210, 211 (App. Div. 1982)). Plaintiffs clearly alleged that
Taranto was in possession of a firearm, (SAC ¶¶ 26–27),
accordingly, at the least, Defendants had arguable probable
cause to arrest Taranto. See Curanaj, 2012 WL 4221042, at
*11 (holding that the “[d]efendants had arguable probable
cause on the charge of Criminal Possession of a Weapon in
the Fourth Degree” when the plaintiff clearly “possessed a
dangerous instrument”—an ax—because “[f]rom that fact,
the intent element is satisfied”); N.Y. Penal Law § 265.15
(“The possession by any person of any dagger, dirk, stiletto,
dangerous knife or any other weapon, instrument, appliance
or substance designed, made or adapted for use primarily as
a weapon, is presumptive evidence of intent to use the same
unlawfully against another.”); cf. Egan v. New York City, No.
16-CV-1479, 2018 WL 4926445, at *9 (S.D.N.Y. Oct. 10,
2018) (holding that because the “criminal purpose of a laser
pointer is not immediately apparent” possession of a laser
pointer would not be “enough to provide probable cause in
this case: there must be probable cause to believe that Plaintiff
possessed the laser with the intent to use it unlawfully”); Levy
v. City of New York, 935 F. Supp. 2d 575, 586 (E.D.N.Y. 2013)
(noting in false arrest case for N.Y. Penal Law § 265.01(2) that
“[b]ecause a kitchen knife is an inherently utilitarian utensil,
the key inquiry is the manner in which the kitchen knife is
used”). Thus, the Court grants the Motion to Dismiss the false
arrest claim.
2. Denial of Fair Trial
“When a police officer creates false information likely to
influence a jury's decision and forwards that information to
prosecutors, he violates the accused's constitutional right to a
fair trial, and the harm occasioned by such an unconscionable
action is redressable in an action for damages under 42 U.S.C.
§ 1983.” Ricciuti v. N.Y.C. Transit Auth., 124 F.3d 123, 130
(2d Cir. 1997). To state a fair trial right claim, a plaintiff must
plausibly plead the following elements: “an (1) investigating
official (2) fabricates information (3) that is likely to influence
a jury's verdict, (4) forwards that information to prosecutors,
and (5) the plaintiff suffers a deprivation of life, liberty, or
property as a result.” Garnett v. Undercover Officer C0039,
838 F.3d 265, 279 (2d Cir. 2016) (citing Ricciuti, 124 F.3d at
130).
Probable cause is not a defense to a denial of fair trial
claim. See Heard v. City of New York, 319 F. Supp. 3d
687, 697 (S.D.N.Y. 2018); Overby v. Fabian, No. 17-
CV-3377, 2018 WL 3364392, at *11 (S.D.N.Y. July 10,
2018). “Because probable cause is no defense to a denial
of the right to a fair trial claim, fair trial claims cover
kinds of police misconduct not addressed by false arrest or
malicious prosecution claims.” Garnett, 838 F.3d at 278; see
also Brandon v. City of New York, 705 F. Supp. 2d 261,
276 (S.D.N.Y. 2010) (noting that the Second Circuit has
permitted “claims for both malicious prosecution and a denial
of [a plaintiff's] fair right to trial based on the same alleged
fabrication of evidence”).
Plaintiffs make many conclusory allegations regarding
fabrication of evidence. For instance, Plaintiffs allege
“[a]fter knowing that the original information disseminated
concerning [ ] Taranto was false, Defendants engaged in
a course of conduct to continue its malicious prosecution
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of [ ] Taranto after falsely arresting him and criminally
charging him in an attempt to justify and cover-up their
prior false statements and misconduct,” that “Defendants
thereafter tampered with potential witnesses seeking to obtain
false testimony from them and coerce them to falsely testify
against [ ] Taranto in criminal court,” that “Defendants
have fabricated evidence against [ ] Taranto in an effort to
conceal their wrongful actions,” that “[a]fter knowing that
the original allegations concerning [ ] Taranto were false,
Defendants engaged in a course of conduct to fabricate
their claims concerning [ ] Taranto,” and that Defendants
“[f]abricat[ed] and contrive[ed] criminal charges lodged
against Plaintiff.” (SAC ¶¶ 76–77, 87, 99, 123.) Plaintiffs’
Opposition similarly states “[a]s discussed herein, Plaintiffs
have demonstrated, before discovery has proceeded, the
extent and nature of the fabrication of evidence by the
Defendants pursuant to the arrest and prosecution of [ ]
Taranto,” which “includes the criminal discovery turned over
by the Defendants to the prosecutor after pleadings were
docketed pursuant to this litigation despite the documents
provided during criminal discovery having been previously
available based upon the dates of creation.” (Pls.’ Mem
15.) However, the Opposition, like the Second Amended
Complaint does not specifically point to particular instances
of fabrication of evidence. 4
*10 Conclusory statements that officers fabricated evidence
do not suffice to state a claim for the denial of a fair trial.
See Longo v. Ortiz, No. 15-CV-7716, 2016 WL 5376212, at
*6 (S.D.N.Y. Sept. 26, 2016) (holding that the plaintiff failed
to state denial of fair trial claim where he alleged “he was
denied the right to a fair trial ... when the defendants fabricated
evidence, gave false testimony, and made false extrajudicial
statements ... to be used against [the plaintiff] at trial as well
as to a Supreme Court judge in an effort to secure a search
warrant, indictment and conviction” (internal quotation marks
omitted)); see also Harasz v. Katz, 239 F. Supp. 3d 461, 493
(D. Conn. 2017) (holding that the plaintiff failed to state a
denial of fair trial claim where he merely alleged that officers
“did in fact participate in fabrication of evidence, ignored
the truth when presented[,] and chose what to bring as the
truth ... [and] did not want the truth to interfere with their
witch hunt.”). “Instead[,] plaintiffs must identify the actual
fabrication,” which Plaintiffs fail to do. Hutchins v. Solomon,
No. 16-CV-10029, 2018 WL 4757970, *16 (S.D.N.Y. Sept.
29, 2018); see also Thompson v. City of New York, No.
18-CV-04105, 2020 WL 2097622, at *4 (S.D.N.Y. May 1,
2020) (“The [c]omplaint does not identify what evidence was
fabricated; and the [c]omplaint fails to identify what, if any,
fabricated evidence the defendants offered or to whom it was
offered and what effect the purported false evidence would
have had on the jury.”); Cunningham v. City of New York,
No. 17-CV-5124, 2018 WL 4168964, at *5 (S.D.N.Y. Aug.
30, 2018) (dismissing fair trial claim where the complaint
failed to assert that arresting report contained a fabrication);
Waddlington v. City of New York, 971 F. Supp. 2d 286, 297
(E.D.N.Y. 2013) (dismissing fair trial claim, and noting that
the “[p]laintiff at no point alleges with specificity what false
information [defendant police officers] created or forwarded
to the D.A.’s Office”); cf. Long v. New York City, No.
14-CV-9908, 2016 WL 4203545, at *3 (S.D.N.Y. Aug. 8,
2016) (“[The p]laintiff claims specific sentences in specific
documents were intentionally falsified by Officer Vazquez.”).
Plaintiffs additionally allege that an investigation that ended
on July 9, 2020 “along with other documents provided by
Defendants as part of [ ] Taranto's criminal prosecution, have
been fabricated by the Defendants in an effort to conceal
their wrong-doing.” (SAC ¶ 94–95.) Again, Plaintiffs have
not identified any specific fabrication. Furthermore, Plaintiffs
have not alleged a causal connection between any fabrication
contained within the investigation, which concluded a year
after Taranto was arrested, and any deprivation. “The
manufacture of false evidence, in and of itself ... does
not impair anyone's liberty, and therefore does not impair
anyone's constitutional right ... the deprivation of liberty of
which [a plaintiff] complains [must] be shown to be the result
of [the defendant's] fabrication of evidence.” Zahrey v. Coffey,
221 F.3d 342, 348–49 (2d Cir. 2000) (internal quotation
marks omitted) (noting that plaintiff had alleged the “eight
months he was confined, from his bail revocation (after his
arrest) to his acquittal” was the result of “the manufacture of
false evidence”). Without such an allegation, Plaintiffs claim
cannot stand. Cf. Ricciuti, 124 F.3d at 126–27, 130 (holding
qualified immunity is unavailable where plaintiffs alleged that
a fabricated confession caused prosecutors to add another
charge); Harris v. City of New York, No. 15-CV-8456, 2017
WL 6501912, at *8 (S.D.N.Y. Dec. 15, 2017) (“[F]abricated
evidence may cause a further deprivation if it adversely
informs a prosecutor's charging and bail determinations.”);
Long v. New York City, No. 14-CV-9908, 2016 WL 4203545,
at *5 (S.D.N.Y. Aug. 8, 2016) (“[F]abrication of evidence
leading to pre-trial detention can satisfy the causation element
for a fair trial claim.”).
3. Deliberate Indifference to Medical Needs
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Because Taranto was a pre-trial detainee at the time he was
allegedly denied adequate medical care, Plaintiffs’ claim falls
under “the Due Process Clause of the Fourteenth Amendment,
rather than the Cruel and Unusual Punishments Clause of the
Eight[h] Amendment.” Darnell v. Pineiro, 849 F.3d 17, 29 (2d
Cir. 2017). A pre-trial detainee's rights are “at least as great as
the Eighth Amendment protections available to a convicted
prisoner.” Id. (quotation marks omitted).
To establish a claim for deliberate indifference to medical
needs under the Due Process Clause of the Fourteenth
Amendment, a pre-trial detainee must establish two elements:
(1) that the “deprivation of medical care ... [was] ‘sufficiently
serious,’ ” and (2) that the defendant “acted or failed to act
with ‘a sufficiently culpable state of mind.’ ” Smith v. Outlaw,
No. 15-CV-9961, 2017 WL 4417699, at *2 (S.D.N.Y. Sept.
30, 2017) (quoting Farmer v. Brennan, 511 U.S. 825, 834
(1994); Salahuddin v. Goord, 467 F.3d 263, 279 (2d Cir.
2006)). The first element is objective and requires allegations
that suggest that the detainee was subject to “conditions
posing a substantial risk of serious harm.” Blandon v. Capra,
No. 17-CV-65, 2017 WL 5624276, at *7 (S.D.N.Y. Nov. 20,
2017) (quotation marks omitted) (quoting Hayes v. N.Y.C.
Dep't of Corrs., 84 F.3d 614, 620 (2d Cir. 1996)). The
second element, which is applied somewhat “differently to
claims under the Eighth Amendment [than] the Fourteenth
Amendment,” also imposes an objective standard, whereas
the Eighth Amendment imposes a “subjective standard.”
Howard v. Brown, No. 15-CV-9930, 2018 WL 3611986, at *4
(S.D.N.Y. July 26, 2018) (citation omitted). That is, the law
enforcement or prison official need only “recklessly fail[ ] to
act with reasonable care to mitigate the risk that the condition
posed to the pretrial detainee even though the defendant-
official knew, or should have known, that the condition posed
an excessive risk to health or safety.” Darnell, 849 F.3d at 35.
*11 Plaintiffs contend in their Opposition that “Taranto was
detained at the scene for such an extended period of time”
which “begs further inquiry of ... why he was not immediately
transported to a hospital.” (Pls.’ Mem. 18.) Plaintiffs allege
that before he was transported for treatment, Taranto was
detained in the rear seat of a police vehicle, however the
Second Amended Complaint does not allege the length of
the detention. (SAC ¶ 44.) Plaintiffs additionally allege that
“Taranto was eventually removed from the scene while he
informed the Defendants that he was experiencing chest pains
and sustained physical injuries to his face, head, and body”
and transported to a hospital to received care. (Id. ¶¶ 45, 50.)
“When the basis for a ... claim is a temporary delay or
interruption in the provision of otherwise adequate medical
treatment, it is appropriate to focus on the challenged delay
or interruption in treatment rather than the [detainee's]
underlying medical condition alone in analyzing whether the
alleged deprivation is, in objective terms, sufficiently serious,
to support a[ ] ... claim.” Smith v. Carpenter, 316 F.3d 178,
185 (2d Cir. 2003) (citation and quotation marks omitted); see
also James v. Brown, No. 14-CV-1767, 2016 WL 3945688,
at *4 (S.D.N.Y. July 19, 2016) (noting that where an inmate
alleges “an unreasonable delay or interruption in treatment,
the seriousness inquiry focuses on the challenged delay or
interruption in treatment rather than the prisoner's underlying
medical condition alone.” (alteration and citation omitted)).
“[A] short interruption of care, even if the underlying medical
condition is serious, does not constitute a serious medical
need where the ‘alleged lapses in treatment are minor.’ ”
Ferguson v. Cai, No. 11-CV-6181, 2012 WL 2865474, at *4
(S.D.N.Y. July 12, 2012) (quoting Smith, 316 F.3d at 186).
“Where temporary delays or interruptions in the provision of
medical treatment have been found to satisfy the objective
seriousness requirement in this Circuit, they have involved
either a needlessly prolonged period of delay, or a delay
which caused extreme pain or exacerbated a serious illness.”
Id. (collecting cases). Where a plaintiff cannot show actual
injury, he may nonetheless satisfy the objective prong by
demonstrating that the delay of medical treatment exposed
him to “an unreasonable risk of future harm.” Smith, 316 F.3d
at 188. However, “the inmate must show that the risk of future
harm is ‘so grave that it violates contemporary standards of
decency.’ ” Braxton v. Nichols, No. 08-CV-8568, 2010 WL
1010001, at *3 (S.D.N.Y. Mar. 18, 2010) (quoting Helling v.
McKinney, 509 U.S. 25, 36 (1993)).
“Although in many cases, calling for medical assistance
within an hour or so of the injury may have sufficed
in meeting an official's duties, see Pateman v. City of
White Plains, No. 17-CV-6156, 2020 WL 1497054, at *21
(S.D.N.Y. Mar. 25, 2020) (collecting cases), the Second
Circuit has also noted that ‘it's the particular risk of harm
faced by a [detainee] due to the challenged deprivation of
care’ that is relevant to deliberate indifference claims, Smith
v. Carpenter, 316 F.3d 178, 186 (2d Cir. 2003) (citation
omitted).” Maldonado v. Town of Greenburgh, 460 F. Supp.
3d 382, 396 (S.D.N.Y. 2020). Therefore, “delay in medical
treatment must be interpreted in the context of the seriousness
of the medical need, deciding whether the delay worsened
the medical condition, and considering the reason for the
delay.” Id. (quoting Smith, 316 F.3d at 186). For instance, in
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Maldonado, this Court held that a pretrial detainee's estate
plausibly alleged deliberate indifference to medical needs
when the pretrial detainee was tasered, was not responding
to NARCAN, and even though the defendant was told the
pretrial detainee needed to be rushed to medical treatment
immediately, there was a 20-minute delay in transporting the
pretrial detainee to the emergency room. Id. at 389, 397.
The pretrial detainee was pronounced dead at the hospital.
Id. at 390. Here, Plaintiffs have not alleged how much time
transpired between the incident and Taranto's arrival at the
hospital—it is possible Taranto was transported to the hospital
almost immediately after the alleged incident. See Cooper
v. City of New York, No. 14-CV-3698, 2016 WL 4491719,
at *1, 8 (E.D.N.Y. Aug. 25, 2016) (holding plaintiff who
was attacked by police, became unconscious, and fell into
a coma had not alleged deliberate indifference to medical
needs when the “incident took place at 1:15pm, and it was
reported at 1:32pm” and plaintiff was then admitted to the
emergency room approximately 20 minutes later). Indeed,
Plaintiffs allege that Taranto was removed from the scene
“while” informing Defendants he was “experiencing chest
pains and sustained physical injuries to his face, head, and
body”—indicating there was no delay between Taranto's
complaints and his transport to the hospital. (SAC ¶ 45.)
Additionally, Plaintiffs have not alleged any fact indicating
that any delay worsened Taranto's medical condition. Without
any sense of the time that transpired between Taranto's
injury and the subsequent transport to the hospital or any
allegations as to whether any delay worsened or posed
any specific risk to Taranto's medical condition, Plaintiffs
have not plausibly alleged any delay constitutes deliberate
indifference to medical needs. See Smith, 316 F.3d at 186 (“[It
is] the particular risk of harm faced by a [detainee] due to the
challenged deprivation of care, rather than the severity of the
[detainee's] underlying medical condition, considered in the
abstract, that is relevant.”).
*12 Plaintiffs additionally allege that “Defendants refused
to permit [ ] Taranto to receive proper medical attention at
the scene or to be removed from the scene via ambulance,”
and that “[a]ny first aid provided at the scene by any Fire
Department personnel or Emergency Medical Technician
present at the scene was insufficient and inadequate to address
[ ] Taranto's medical distress.” (Id. ¶¶ 46, 48.) “While
Plaintiff[s] allege[ ] that ‘all defendants’ failed to provide
adequate medical treatment, that allegation is insufficient
because it is conclusory.” Sterling v. Akinyombo, No. 20-
CV-10804, 2022 WL 2657223, at *5 (S.D.N.Y. July 8,
2022) (citation omitted). Plaintiffs have not alleged which
Defendants were involved in any deprivations of care or
what medical attention was or was not provided at the scene.
Such conclusory allegations cannot withstand Defendants’
Motion to Dismiss. See Price v. Koenigsmann, No. 19-
CV-4068, 2022 WL 125818, at *5 (S.D.N.Y. Jan. 13, 2022)
(holding that factual allegations plaintiff makes that reference
“Defendants” and their deliberate indifference to his medical
needs “are vague and conclusory” and therefore cannot
support a plausible deliberate indifference claim).
4. 1985(3) Conspiracy
To state a claim for conspiracy in violation of § 1985(3), a
plaintiff must allege (1) a conspiracy, (2) with the intent or
purpose to deprive a person of equal protection of the law, (3)
an act in furtherance of the conspiracy, (4) which results in an
injury to a person, or a person's property, or the deprivation of
a federal constitutional right. Dolan v. Connolly, 794 F.3d 290,
296 (2d Cir. 2015). “In order to maintain an action under [§]
1985, a plaintiff must provide some factual basis supporting a
meeting of the minds, such that [the] defendants entered into
an agreement, express or tacit, to achieve the unlawful end.”
Webb v. Goord, 340 F.3d 105, 110 (2d Cir. 2003) (citation
and internal quotation marks omitted). “In addition, a plaintiff
must allege that she is a member of a protected class and
that the conspirators acted with class-based discriminatory
motivation.” Arroyo-Horne v. City of New York, No. 16-
CV-3857, 2019 WL 3428577, at *5 (E.D.N.Y. July 30, 2019),
aff'd, 831 F. App'x 536 (2d Cir. 2020).
Defendants argue that Plaintiffs failed to plead any specifics
about the alleged conspiracy and failed to plead a factual
basis supporting a meeting of the minds. (Defs.’ Reply
Mem. 4.) Plaintiffs argue that they have sufficiently pled a
cause of action of conspiracy noting that the identities of
the John Doe Defendants are unknown but that they were
present on the scene at the time of Taranto's arrest and failed
to intervene when Taranto was assaulted, failed to provide
proper medical attention, and “covered-up the wrongdoing of
the known Defendants.” (Pls.’ Mem. 15.) Plaintiffs also allege
that “[i]n furtherance of the conspiracy, Defendants fabricated
evidence against [Taranto], failed to provide evidence in a
timely manner despite it being available during [ ] Taranto's
criminal prosecution and engaged in acts to cover up the
excessive use of force upon [ ] Taranto by the Defendants
herein.” (SAC ¶ 153.) However, Plaintiffs have not included
any facts which support a plausible allegation that Defendants
conspired together, let alone conspired to deprive Taranto's of
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equal protection of the laws. Accordingly, the claim cannot
stand. See Ziglar v. Abbasi, 582 U.S. 120, 154 (2017) (“To
state a claim under § 1985(3), a plaintiff must first show
that the defendants conspired—that is, reached an agreement
—with one another.”); see also Arroyo-Horne, 2019 WL
3428577, at *5 (dismissing 1985 conspiracy claim when
the complaint “does not provide any allegations or include
any facts from which the Court could conclude that any
individual(s) conspired to deprive Plaintiff of equal protection
of the laws or equal privileges and immunities under the
laws.”); K.D. ex rel. Duncan v. White Plains Sch. Dist.,
921 F. Supp. 2d 197, 308 (S.D.N.Y. 2013) (dismissing the
plaintiff's section 1985(3) claim because the complaint did
not “set forth any specific facts that indicate any sort of
meeting of the minds ... let alone an agreement to violate
[the plaintiffs’ rights]” (emphasis omitted)); Friends of Falun
Gong v. Pacific Cultural Enter., Inc., 288 F. Supp. 2d 273, 279
(E.D.N.Y. 2003) (finding that the plaintiff failed to adequately
plead a section 1985(3) claim because “the complaint [did]
not include any facts that could support an inference of a
conspiracy” and because the plaintiff “cite[d] no facts from
which a meeting of the minds could be inferred”).
*13 However, even if Plaintiffs have plausibly alleged
concerted action by Defendants, the claim still fails.
Defendants additionally argue that Plaintiffs’ § 1985(3)
should fail as “Plaintiffs failed to plead membership in a
protected class under § 1985(3).” (Defs.’ Reply Mem. 4.) The
Court agrees. To establish a violation of § 1985(3), a plaintiff
must establish, among other elements, that the conspiracy
was motivated by “some racial or perhaps otherwise class-
based, invidious discriminatory animus.” McDaniel v. City
of New York, 585 F. Supp. 3d 503, 522 (S.D.N.Y. 2022),
report and recommendation adopted, No. 19-CV-11265,
2022 WL 874769 (S.D.N.Y. Mar. 24, 2022) (quotation marks
omitted). Plaintiffs have not attempted to do so. (See generally
SAC.) Accordingly, the section 1985(3) conspiracy claim
fails on this ground as well. McDaniel, 585 F. Supp. 3d
at 522 (dismissing claims pursuant to § 1985 when the
complaint “provides no factual assertions that would establish
the requisite discriminatory animus”); see also Joyner v.
Alston & Bird LLP, No. 21-CV-8549, 2022 WL 6244417, at
*10 (S.D.N.Y. May 13, 2022), report and recommendation
adopted, No. 21-CV-8549, 2022 WL 4115954 (S.D.N.Y.
Sept. 9, 2022) (dismissing claim § 1985(3) in part because
plaintiff had not alleged “discriminatory animus aimed at
depriving her of a federal constitutional right”).
5. 1983 “Cover-Up” Claim
“In a section 1983 claim alleging a cover-up by government
agents, the constitutional right at issue is the First Amendment
right of access to courts: the theory is that the cover-up has
made it impossible for the plaintiff to litigate an underlying
claim, because material evidence was destroyed, for instance,
or because the statute of limitations expired before the
plaintiff discovered the cover-up.” Tavares v. New York City
Health & Hosps. Corp., No. 13-CV-3148, 2015 WL 158863,
at *7 (S.D.N.Y. Jan. 13, 2015) (citing Christopher v. Harbury,
536 U.S. 403, 413–14 & n. 11 (2002) (describing these claims
as “backward-looking access claims”)). “The Second Circuit
has emphasized, however, that ‘[t]he viability of [such] claims
is far from clear,’ pointing out that the Harbury decision
was careful not to endorse their validity.” Id. (citing Sousa v.
Marquez, 702 F.3d 124, 128 (2d Cir. 2012)).
Nevertheless, even assuming backward-looking access
claims are actionable, Plaintiffs’ fail. “[S]uch claims are
available only if a judicial remedy was ‘completely
foreclosed’ by the alleged cover-up.” Sousa, 702 F.3d at
128 (quoting Broudy v. Mather, 460 F.3d 106, 120 (D.C.
Cir. 2006)). Plaintiffs’ claims are clearly not foreclosed as
they are bringing them in this very Action and have not
argued that any claims have been foreclosed—accordingly
the claim is dismissed. See Tavares, 2015 WL 158863, at
*7–8 (dismissing “cover-up” claim when plaintiff “has not
alleged that the DOCCS [d]efendants’ actions prevented him
from litigating his underlying Eighth Amendment and state-
law medical malpractice claims against the City [d]efendants
—indeed, he is bringing those very claims in this action.”).
6. Individual Liability
Defendants argue that Plaintiffs “impermissibly plead all
causes of action against all named Defendants instead of
bringing each cause of action against only the involved
[D]efendants.” (Defs.’ Mem. 14.) Specifically, Defendants
argue that Plaintiffs’ “Fourth Amendment false arrest and
excessive force claims” and failure to intervene claims against
Langley “who was not present at the scene on July 8, 2019”
must fail for lack of personal involvement. (Id.)
“It is well settled in this Circuit that personal involvement
of defendants in alleged constitutional deprivations is a
prerequisite to an award of damages under § 1983.” Sterling,
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2022 WL 2657223, at *4 (quoting Colon v. Coughlin,
58 F.3d 865, 873 (2d Cir. 1995)). “[A] plaintiff must
plead and prove that each Government-official defendant,
through the official's own individual actions, has violated
the Constitution.” Tangreti v. Bachmann, 983 F.3d 609, 618
(2d Cir. 2020) (quotation marks omitted); see also Leneau v.
Ponte, No. 16-CV-776, 2018 WL 566456, at *15 (S.D.N.Y.
Jan. 25, 2018) (dismissing allegations against a defendant
for lack of personal involvement because the “[p]laintiff's
general allegation that all defendants were involved in the
alleged constitutional violations does not rescue the claims
against” a particular defendant). Accordingly, “a plaintiff may
not rely on a special test for supervisory liability” instead,
“[t]he violation must be established against the supervisory
official directly.” Tangreti, 983 F.3d 616–18.
*14 The Court agrees that Plaintiffs have not alleged
Langley's personal involvement in Plaintiffs’ remaining
constitutional claim, namely their excessive force claim.
While Plaintiffs have pled that Langley “failed to intercede
to terminate the aforementioned assault upon [ ] Taranto”
they have not alleged he was present during the incident
at issue or how he somehow permitted the use of force to
occur. (SAC ¶ 71.) And while they allege Langley “was
personally aware of the events complained of herein as they
were occurring” they have not alleged any fact indicating this
was the case. (Id. ¶ 73.) Such conclusory allegations do not
sufficiently allege personal involvement. See Falls v. Pitt, No.
16-CV-8863, 2018 WL 3768036, at *6 (S.D.N.Y. Aug. 8,
2018) (finding personal involvement not established where
the plaintiff failed to allege the defendants were “present”
for the alleged violation or “participated directly” in or
“somehow permitted” the alleged violation); Lara-Grimaldi
v. Cnty. of Putnam, No. 17-CV-622, 2018 WL 1626348, at *11
(S.D.N.Y. Mar. 29, 2018) (holding personal involvement not
established where the “[c]omplaint contain[ed] no allegations
whatsoever that [the defendant] was involved in, aware of, or
somehow permitted” the violation).
Plaintiffs additionally state in their Opposition that dismissal
of Langley is inappropriate at this stage because he
“established policy, was responsible for the training and
discipline of officers and the overall operation of the
Defendant police department.” (Pls.’ Mem. 19.) “While
personal involvement of a supervisor may be established
by showing that he created a policy or custom under
which the violation occurred, conclusory allegations that a
defendant was involved in the creation and enforcement of
unconstitutional policies cannot sustain a claim of personal
involvement.” Koehl v. Bernstein, No. 10-CV-3808, 2011
WL 2436817, at *19 (S.D.N.Y. June 17, 2011), report
and recommendation adopted by, No. 10-CV-3808, 2011
WL 4390007 (S.D.N.Y. Sept. 21, 2011) (citation omitted).
Plaintiffs appear to only allege a single instance of excessive
force in their Second Amended Complaint, namely the
incident at issue. (See generally SAC.) “Allegations involving
only a single incident are generally insufficient to demonstrate
the existence of an official policy or custom for purposes
of establishing personal involvement under § 1983.” Parris
v. N.Y. State Dep't Corr. Servs., 947 F. Supp. 2d 354, 364
(S.D.N.Y. 2013). Accordingly, this single alleged use of force
is insufficient to plausibly allege personal involvement on the
basis of a policy. See Tubbs v. Venettozzi, No. 19-CV-126,
2019 WL 2610942, at *8 (N.D.N.Y. June 26, 2019) (holding
that allegations that Superintendent was made aware of
complaints about due process violations and allowed a custom
of due process violations in disciplinary hearings failed when
plaintiff only alleged two such incidents); Lindsey v. Butler,
43 F. Supp. 3d 317, 331 (S.D.N.Y. 2014), on reconsideration
in part, No. 11-CV-9102, 2014 WL 5757448 (S.D.N.Y. Nov.
5, 2014) (holding that plaintiff's claims that Commissioner
Kelly “created or adopted” an unconstitutional policy
were insufficient to plausibly allege personal involvement
“[w]ithout more than the allegations related to the single
incident in the station house”). Additionally, insofar as
Plaintiffs seek to hold Langley liable on the basis of his
supervisory position, the Second Circuit has made clear that
in the wake of Iqbal, plaintiffs cannot rely on supervisory
liability to establish personal involvement. Tangreti, 983 F.3d
at 620 (holding it was insufficient to show that defendant “was
negligent, or even grossly negligent, in her supervision of the
correctional officers or in failing to act on the information
she had” for the purposes of personal involvement); see also
Bridgewater v. Taylor, 832 F. Supp. 2d 337, 348 (S.D.N.Y.
2011) (holding personal involvement not established where
the plaintiff made conclusory claims that a supervisory
official failed to provide proper training and supervision or
created a policy).
7. Putnam County Sheriff's Office
*15 Defendants argue that “claims against the Putnam
County Sheriff's Office must be dismissed because the police
department is a non-suable entity.” (Defs.’ Mem. 23.) The
Court agrees. Under law of the State of New York, “a
department of a municipal entity is merely a subdivision of the
municipality and has no separate legal existence.” Hoisington
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v. County of Sullivan, 55 F. Supp. 2d 212, 214 (S.D.N.Y.
1999). “[T]he Sheriff's Department [does not] exist separate
and apart from the County and, as a result, [ ] can[not]
be sued.” Sagaria v. Orange Cnty. Jail, No. 20-CV-2287,
2021 WL 4392422, at *3 (S.D.N.Y. Sept. 24, 2021); see also
Gleeson v. County of Nassau, No. 15-CV-6487, 2019 WL
4754326, at *14 (E.D.N.Y. Sept. 30, 2019) (holding Nassau
County Sheriff's Department and Nassau County Correction
Center were not proper parties because they are administrative
arms of Nassau County); Polite v. Town of Clarkstown, 60 F.
Supp. 2d 214, 216 (S.D.N.Y. 1999) (“Therefore, municipal
departments in this State—such as the Clarkstown Police
Department—are not amenable to suit, and no claims can
lie directly against them.”) Indeed, “Plaintiffs concede the
Putnam County Sheriff's Office is not a suable entity.” (Pls.’
Mem. 26.)
8. Monell Claim
“To state a claim under [§ 1983], the plaintiff must show
that a defendant, acting under color of state law, deprived
him of a federal constitutional or statutory right.” Sykes v.
Bank of Am., 723 F.3d 399, 405–06 (2d Cir. 2013). However,
“Congress did not intend municipalities to be held liable
[under § 1983] unless action pursuant to official municipal
policy of some nature caused a constitutional tort.” Monell
v. Dep't of Soc. Servs., 436 U.S. 658, 691 (1978). Thus, “to
prevail on a claim against a municipality under [§] 1983 based
on acts of a public official, a plaintiff is required to prove:
(1) actions taken under color of law; (2) deprivation of a
constitutional or statutory right; (3) causation; (4) damages;
and (5) that an official policy of the municipality caused
the constitutional injury.” Roe v. City of Waterbury, 542
F.3d 31, 36 (2d Cir. 2008); see also Williams v. Lohard,
No. 20-CV-10571, 2022 WL 269164, at *3 (S.D.N.Y. Jan.
28, 2022) (“[The] [p]laintiff's claim against the [c]ity fails
for lack of facts supporting the existence of a municipal
policy or practice.” (citing cases)); Palmer v. City of New
York, 564 F. Supp. 3d 221, 240 (E.D.N.Y. 2021) (dismissing
claim against city where the plaintiffs failed to “sufficiently
allege[ ] that they suffered constitutional violations as a result
of an official policy or custom” (quotation marks omitted));
Salvatierra v. Connolly, No. 09-CV-3722, 2010 WL 5480756,
at *10 (S.D.N.Y. Sept. 1, 2010) (dismissing a claim against
agencies where the plaintiff did not allege that any policy
or custom caused the deprivation of his rights), report and
recommendation adopted, 2011 WL 9398 (S.D.N.Y. Jan. 3,
2011).
This multi-factor test, and particularly the fifth element,
reflects the notion that “a municipality may not be held liable
under § 1983 solely because it employs a tortfeasor.” Bd.
of Cnty. Comm'rs of Bryan Cnty. v. Brown, 520 U.S. 397,
403 (1997); see also Pembaur v. City of Cincinnati, 475
U.S. 469, 478 (1986) (holding that a municipality may not
be liable under § 1983 “by application of the doctrine of
respondeat superior.” (italics omitted)); Vassallo v. Lando,
591 F. Supp. 2d 172, 201 (E.D.N.Y. 2008) (noting that “a
municipal entity may only be held liable where the entity
itself commits a wrong”); Newton v. City of N.Y., 566 F. Supp.
2d 256, 270 (S.D.N.Y. 2008) (“As subsequently reaffirmed
and explained by the Supreme Court, municipalities may
only be held liable when the municipality itself deprives an
individual of a constitutional right.”). Instead, there must be
a “direct causal link between a municipal policy or custom
and the alleged constitutional deprivation.” City of Canton v.
Harris, 489 U.S. 378, 385 (1989); see also City of St. Louis
v. Praprotnik, 485 U.S. 112, 122 (1988) (“[G]overnments
should be held responsible when, and only when, their official
policies cause their employees to violate another person's
constitutional rights.”).
*16 “In determining municipal liability, it is necessary
to conduct a separate inquiry into whether there exists
a ‘policy’ or ‘custom.’ ” Davis v. City of N.Y., 228 F.
Supp. 2d 327, 336 (S.D.N.Y. 2002), aff'd, 75 F. App'x 827
(2d Cir. 2003). Normally, “a custom or policy cannot be
shown by pointing to a single instance of unconstitutional
conduct by a mere employee of the [municipality].” Newton,
566 F. Supp. 2d at 271; see also City of Okla. City v.
Tuttle, 471 U.S. 808, 823–24 (1985) (plurality opinion)
(“Proof of a single incident of unconstitutional activity is
not sufficient to impose liability under Monell, unless proof
of the incident includes proof that it was caused by an
existing, unconstitutional municipal policy, which policy can
be attributed to a municipal policymaker.”); Bird v. Cnty. of
Westchester, No. 20-CV-10076, at *12 (S.D.N.Y. June 23,
2022) (“[The] [p]laintiff fails to allege the existence of any
other similar incident, which dooms [the p]laintiff's claim
because a custom or policy cannot be shown by pointing
to a single instance of unconstitutional conduct by a mere
employee of the municipality.” (quotation marks omitted));
Santana v. City of N.Y., No. 15-CV-6715, 2018 WL 1633563,
at *10 (S.D.N.Y. Mar. 29, 2018) (“[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.’ ”) (quoting DeCarlo v. Fry, 141 F.3d 56, 61 (2d Cir.
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1998)); Brogdon v. City of New Rochelle, 200 F. Supp. 2d 411,
427 (S.D.N.Y. 2002) (“A single incident by itself is generally
insufficient to establish the affirmative link between the
municipal policy or custom and the alleged unconstitutional
violation.”).
A plaintiff may satisfy the “policy or custom” requirement by
alleging one of the following:
(1) a formal policy officially endorsed
by the municipality; (2) actions taken
by government officials responsible
for establishing the municipal policies
that caused the particular deprivation
in question; (3) 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 (4) 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.
Atadzhanov v. City of New York, No. 21-CV-5098, 2022
WL 4331304, at *11 (S.D.N.Y. Sept. 19, 2022) (citations
omitted); see also Patterson v. Cnty. of Oneida, 375 F.3d 206,
226–27 (2d Cir. 2004) (describing methods of establishing
Monell liability). Moreover, as noted, a plaintiff must also
establish a causal link between the municipality's policy,
custom, or practice and the alleged constitutional injury.
See Tuttle, 471 U.S. at 824 n.8 (“The fact that a municipal
‘policy’ might lead to ‘police misconduct’ is hardly sufficient
to satisfy Monell’s requirement that the particular policy
be the ‘moving force’ behind a constitutional violation.
There must at least be an affirmative link between[, for
example,] the training inadequacies alleged, and the particular
constitutional violation at issue.” (emphasis omitted)); Batista
v. Rodriguez, 702 F.2d 393, 397 (2d Cir. 1983) (“Absent
a showing of a causal link between an official policy or
custom and the plaintiffs’ injury, Monell prohibits a finding of
liability against the [c]ity.”); Hincapie v. City of New York, 434
F. Supp. 3d 61, 77 (S.D.N.Y. 2020) (holding that the plaintiff
“fails to state a Monell claim” because the plaintiff “has not
pled facts demonstrating a direct link between his injuries
and the alleged municipal policy”); Johnson v. City of New
York, No. 06-CV-9426, 2011 WL 666161, at *3 (S.D.N.Y.
Feb. 15, 2011) (noting that after demonstrating the existence
of a municipal policy or custom, “a plaintiff must establish a
causal connection—an affirmative link—between the policy
and the deprivation of his constitutional rights” (quotation
marks omitted)).
Plaintiffs assert that the County is liable to Plaintiffs
for the alleged constitutional deprivations based upon its
maintenance of “a policy, practice or custom, officially or
unofficially, of unconstitutional practices, including the use
of force, the cover-up of police misconduct, the failure to
maintain an independent police review board, the fabrication
of evidence, the intimidation of witnesses, the failure to
disclose discovery during criminal prosecution and the
condoning of police misconduct.” (SAC ¶ 161.) Plaintiffs
further allege that the County “by and through its policy
makers, maintained a policy, practice or custom, officially or
unofficially, of failing to adequately supervise, discipline and/
or train its officers, including with respect to the use of force,
tactics with respect to emotionally disturbed persons and the
use of weapons during police encounters.” (Id. ¶ 162.)
*17 Plaintiffs do not allege that the County maintains a
formal policy officially endorsed by the municipality. (See
generally id.) 5 Accordingly, the Court need only analyze
whether Plaintiffs have plausibly alleged that there existed
a sufficiently widespread practice to constitute a custom,
whether policymakers failed to provide adequate training or
supervision so grossly that it rises to gross indifference, or
whether actions by final policymakers constituted official
policy. See Atadzhanov, 2022 WL 4331304, at *11 (listing
the four modes of proving a policy, custom, or practice under
Monell).
a. Widespread Practice
To demonstrate a de facto policy or custom through
a widespread practice, a plaintiff must “show that the
policymaker was aware of a subordinate's unconstitutional
actions, and consciously chose to ignore them, effectively
ratifying the actions.” Buari v. City of N.Y., 530 F. Supp.
3d 356, 398 (S.D.N.Y. 2021) (quoting Amnesty America v.
Town of West Hartford, 361 F.3d 113, 126 (2d Cir. 2004)).
A practice can constitute a custom under Monell when the
practice is “persistent and widespread,” or “permanent and
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well settled as to constitute a ‘custom or usage’ with the
force of law” and to “imply the constructive knowledge
of policymaking officials.” In re N.Y.C. Policing During
Summer 2020 Demonstrations, 548 F. Supp. 3d 383, 400
(S.D.N.Y. 2021) (quoting Sorlucco v. N.Y.C. Police Dep't, 971
F.2d 864, 870–71 (2d Cir. 1992)); see also Triano v. Town of
Harrison, 895 F. Supp. 2d 526, 532 (S.D.N.Y. 2012) (noting
that to demonstrate a practice is sufficiently widespread and
crystalized to constitute a custom under Monell, “a plaintiff
must prove that the custom at issue is permanent and well-
settled” (citing Praprotnik, 485 U.S. at 127)).
*18 Plaintiffs allege that “Defendants maintain a pattern,
policy and/or practice whereby criminal discovery is not
provided in a timely fashion and/or at all” and cite to DiPippo
v. County of Putnam, No. 17-CV-7948, 2019 WL 1004152
(S.D.N.Y. Feb. 28, 2019). (SAC ¶¶ 83–84.) In DiPippo,
plaintiff Anthony DiPippo alleged in part that he was denied
a fair trial and wrongfully convicted based upon fabricated
evidence during his criminal trials in 1994 and 2012. 2019
WL 1004152, at *8. The court held that plaintiff had
pleaded ample specific facts indicating
that Defendants used extremely
similar coercive investigative
techniques on at least six witnesses
within the [ ] investigation
[at issue]. These techniques
included: procuring testimony that
implicated DiPippo in exchange
for leniency, threatening witnesses
with prosecutions against them if
they did not provide inculpatory
testimony, harassing and assaulting
witnesses over extended periods
of time, isolating witnesses and
interrogating them for hours, forcing
or attempting to force witnesses
to sign false affidavits or other
pre-written statements, administering
sham polygraph examinations, failing
to keep records of meetings with
witnesses, using force on witnesses,
and denying witnesses the opportunity
to consult with counsel.
Id. at *9. Based on these allegations, and the fact that
“DiPippo was wrongfully convicted twice and tried three
times by a jury” and the plaintiff “alleged facts that indicated
that the [Putnam County Sheriff's Department] officers used
similar unconstitutional methods in every trial” the court held
that, that the plaintiff had sufficiently pled a Monell claim
under a widespread practice theory. Id. at *11.
Defendants argue that Plaintiffs’ sole reliance on this case
dooms their Monell claim as the case resolved by settlement
without determination or admission of liability. (Defs.’ Mem.
18–19.) Indeed, courts in this District have held that “citations
to lawsuits, even if they did involve comparable conduct, do
not alone establish a custom or practice that is widespread
and persistent, particularly if the lawsuits did not result in
an adjudication of liability.” Bethune v. Westchester County,
No. 18-CV-3500, 2020 WL 1032508, at *5 (S.D.N.Y. Mar.
2, 2020) (emphasis added) (granting a motion to dismiss
where the plaintiff premised Monell liability on, inter alia,
citations to several filed lawsuits); see also Barnett v.
Westchester County, No. 18-CV-2483, 2020 WL 1032445,
at *5 (S.D.N.Y. Feb. 28, 2020) (same); Vincent v. Winski,
No. 14-CV-7744, 2018 WL 1441370, at *17 (S.D.N.Y.
Mar. 22, 2018) (granting the defendants’ motion to dismiss
Monell claims where “the only facts that [the] [p]laintiff
identifie[d] in support of any pattern of mishandling situations
because of a failure to train ... consist[ed] of other litigations
resulting in settlements”); Tieman v. City of Newburgh, No.
13-CV-4178, 2015 WL 1379652, at *17 (S.D.N.Y. Mar. 26,
2015) (concluding that “lawsuits cited by [the] [p]laintiff
in the [proposed amended complaint], even when combined
with [other] allegations ..., are insufficient to plausibly
support an inference of a widespread custom” to establish
Monell municipal liability). DiPippo was settled without
an admission of liability. See Stipulation of Discontinuance
with Prejudice, DiPippo, 2019 WL 1004152, Dkt. No. 98.
Accordingly, Plaintiffs cannot allege a widespread practice on
the basis of DiPippo alone. See McDonald v. City of Troy,
542 F. Supp. 3d 161, 175–76 (N.D.N.Y. 2021) (holding that
while “Plaintiffs’ eight settled [excessive force] lawsuits over
eight years is not the best record for a small city like Troy to
sport .... [B]ecause plaintiff has not pointed to a single related
case that actually resulted in a finding of liability on the
City's part, that showing falls woefully short of establishing
Monell liability”); An v. City of New York, 230 F. Supp. 3d
224, 229–30 (S.D.N.Y. 2017) (granting a motion to dismiss
where a complaint sought to establish Monell liability based
on “cites [to] six lawsuits filed between 2012 and 2016 and
one newspaper report” but failed to plausibly allege a custom
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because “the Complaint fail[ed] to allege that any of the six
lawsuits, which were filed over a course of four years, resulted
in a finding that the NYPD officers violated the plaintiffs’
First Amendment rights”). 6
b. Failure to Train
*19 Monell liability can also exist “ ‘where a local
government is faced with a pattern of misconduct and does
nothing, compelling the conclusion that the local government
has acquiesced in or tacitly authorized its subordinates’
unlawful actions.’ ” Fraser, 2021 WL 1338795, at *10
(quoting Reynolds, 506 F.3d at 192). One category of
municipal acquiescence involves a failure to train public
officials. However, a failure to train constitutes a policy or
custom that is actionable under § 1983 only where “in light
of the duties assigned to specific officers or employees[,] the
need for more or different training is so obvious, and the
inadequacy so likely to result in the violation of constitutional
rights, that the policymakers ... can reasonably be said to have
been deliberately indifferent to the need.” City of Canton,
489 U.S. at 390. The Second Circuit has held that a finding
of deliberate indifference requires: (1) “that a policymaker
knows ‘to a moral certainty’ that her employees will confront
a given situation”; (2) “that the situation either presents the
employee with a difficult choice of the sort that training or
supervision will make less difficult or that there is a history
of employees mishandling the situation”; and (3) “that the
wrong choice by the ... employee will frequently cause the
deprivation of a citizen's constitutional rights.” Okin v. Vill.
of Cornwall-On-Hudson Police Dep't, 577 F.3d 415, 440 (2d
Cir. 2009) (alteration in original) (quoting Walker v. City of
N.Y., 974 F.2d 293, 297–98 (2d Cir. 1992)). “A municipality's
culpability for a deprivation of rights is at its most tenuous
where a claim turns on a failure to train.” Connick, 563 U.S.
at 61.
To set forth a failure to train claim, “a plaintiff must
plausibly allege a specific deficiency in the municipality's
training.” Tieman, 2015 WL 1379652, at *22. Here, Plaintiffs’
claim fails first and foremost because they have not alleged
a specific training deficiency. Indeed, Plaintiffs’ Second
Amended Complaint does not “contain sufficient factual
matter” to state a training deficiency “that is plausible
on its face.” Iqbal, 556 U.S. at 678 (quoting Twombly,
550 U.S. at 570). Instead, Plaintiffs only broadly allege
“Defendant Putnam County and/or Putnam County Sheriff's
Office breached their duty to the public and the Plaintiff
specifically by deploying Deputies without first properly
screening the hiring of and training of them,” that the County
failed to “train its officers, including with respect to the use
of force, tactics with respect to responding to emotionally
disturbed persons and the use of weapons during police
encounters,” and that “Langley has failed to train and/or
retrain his deputies, including the Defendants herein, in
the proper and lawful use of force,” “the proper treatment
of prisoners requiring medical attention,” “proper response
and/or treatment of emotionally disturbed persons,” and the
“requirement to timely transmit criminal discovery as part of
a criminal prosecution.” (SAC ¶¶ 108–111, 162, 201.) Simply
put, the sum total of Plaintiffs’ failure-to-train claim is based
on a threadbare description of the County's training, and is
the type of conclusory claim that courts routinely dismiss.
See, e.g., Clarke v. Antonini, No. 21-CV-1877, 2022 WL
4387357, at *12 (S.D.N.Y. Sept. 22, 2022) (dismissing Monell
claim where plaintiff failed to “allege a specific deficiency in
either the [c]ity or the [c]ounty's training for his failure-to-
train theory”); Lehal v. Cent. Falls Det. Facility Corp., No.
13-CV-3923, 2016 WL 7377238, at *11 (S.D.N.Y. Nov. 21,
2016) (dismissing failure to train claim when a “[p]laintiff's
new allegations regarding a supposed lack of training are too
general and speculative to support a Monell claim”); Triano,
895 F. Supp. 2d at 539–40 (dismissing Monell claim where
the plaintiff “merely alleged that the [t]own failed to train its
employees, without providing any supporting factual detail
about alleged deficiencies in the training program”); Walker
v. City of New York, No. 14-CV-808, 2015 WL 4254026, at
*11 (S.D.N.Y. July 14, 2015) (dismissing failure to train claim
where the plaintiff “neither cites to procedural manuals and
training guides, nor highlights the pertinent aspects of police
training in order to prove the claim”).
Furthermore, in addition to identifying a specific training
deficiency, a plaintiff must “establish that that deficiency
caused the constitutional deprivation.” Benn v. City of New
York, No. 18-CV-722, 2021 WL 3193022, at *6 (S.D.N.Y.
July 28, 2021) (citation omitted). Plaintiffs, however, only
make conclusory assertions that Langley, “as Sheriff of
Putnam County and/or subordinates under his command,
fail to properly train and/or supervise its officers resulting
in the unlawful actions complained of herein.” (SAC ¶
115.) Plaintiffs’ conclusory assertions do not suffice to
plausibly allege that a deficiency in training caused Taranto's
injury. See King v. City of Beacon Police Dep't, No. 20-
CV-5815, 2021 WL 1550073, at *3 (S.D.N.Y. Apr. 20, 2021)
(dismissing Monell claims when a plaintiff's allegations that
his injuries “resulted from a municipal policy or custom” were
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“wholly conclusory”); Acosta v. City of New York, No. 11-
CV-856, 2012 WL 1506954, at *11 (S.D.N.Y. Apr. 26, 2012)
(dismissing Monell claim where the plaintiff merely alleged
that the city “failed to train its police officers,” because the
plaintiff “failed to set forth factual allegations that would
support a plausible inference that the [c]ity's ‘policies’ or
‘customs’ caused ... [the] alleged violations of [the] plaintiff's
rights”).
*20 In sum, Plaintiffs have not pled a plausible Monell claim
under a failure to train theory.
c. Failure to Discipline or Supervise
“In City of Canton, the Supreme Court established the
‘deliberate indifference’ standard in the context of a claim for
failure to train, but ‘the stringent causation and culpability
requirements set out in that case have been applied to a broad
range of supervisory liability claims,’ including claims for
failure to supervise and failure to discipline.” Green v. City
of Mount Vernon, 96 F. Supp. 3d 263, 306 (S.D.N.Y. 2015)
(quoting Reynolds, 506 F.3d at 192).
“To establish Monell liability premised on a failure to
supervise, a plaintiff must plead that (1) there was a pattern
of allegations of or complaints about, or a pattern of actual,
similar unconstitutional activity, and (2) the municipality
consistently failed to investigate those allegations.” Lopes
v. Westchester Cnty., No. 18-CV-8205, 2020 WL 1445729,
at *5 (S.D.N.Y. Mar. 25, 2020). Alternatively, “a plaintiff
may plead (1) that there was a pattern of actual similar
constitutional violations and (2) the municipality consistently
failed to discipline those involved.” Tieman, 2015 WL
1379652 at *21 (emphasis omitted). To establish deliberate
indifference for a failure to supervise and/or discipline
claim, the plaintiff must show that “the need for more or
better supervision to protect against constitutional violations
was obvious,” which may be established “through proof
of repeated complaints of civil rights violations ... if the
complaints are followed by no meaningful attempt on the
part of the municipality to investigate or to forestall further
incidents.” Buari, 530 F. Supp. 3d at 400.
“[A]n allegation of numerous claims of [the underlying
constitutional wrong] by itself is insufficient to raise
an inference of deliberate indifference due to failure to
supervise.” Tieman, 2015 WL 1379652, at *21. Rather, a
plaintiff must allege that “meaningful attempts to investigate
repeated claims ... are absent.” Id. (quoting Hart v. City of
Binghamton, No. 10-CV-1064, 2012 WL 1565085, at *5
(N.D.N.Y. May 2, 2012)). In other words, “[f]or deliberate
indifference to be shown, the response must amount to a
persistent failure to investigate the complaints or discipline
those whose conduct prompted the complaints.” Hart, 2012
WL 1565085, at *5. Plaintiffs do not make any such
allegation, instead Plaintiffs allege that Langley, “as Sheriff
of Putnam County and/or subordinates under his command,
fail to ... supervise its officers resulting in the unlawful actions
complained of herein,” failed “to discipline subordinates upon
findings of misconduct,” and that the “attack against [ ]
Taranto could have been prevented had Putnam County and/
or Sheriff Langley acted properly by removing Deputies
who have demonstrated violent tendencies, failed to act
within the boundaries of law, properly train its officers,
properly supervise its officers and/or to discipline officer
misconduct.” (SAC ¶¶ 75, 115.) While the DiPippo case
points to misconduct that occurred in the Putnam County
Sheriff's Office, Plaintiffs make no specific factual allegations
regarding any failures to investigate complaints or discipline
officers involved in that matter by the Putnam County
Sheriff's Office's in the Second Amended Complaint. (See
generally SAC.) The only relevant allegations in the Second
Amended Complaint are that “Plaintiffs are presently aware
of similar misconduct committed by the Defendants in
the matter of DiPippo v. County of Putnam, et al. where
Defendants, among other things, also failed to disclose
criminal discovery,” and that “[i]n the matter of DiPippo v.
County of Putnam, Defendant Quick was also one of the
defendants who failed to disclose and apparently hid criminal
discovery.” (Id. ¶¶ 84–85.) However, Plaintiffs have made no
allegations regarding any prior lack of investigation into or
disciplining of Quick, or any other officer for that matter, in
the Second Amended Complaint, which dooms their claim.
See Esperanza v. City of New York, 325 F. Supp. 3d 288,
309 (E.D.N.Y. 2018) (“Plaintiffs do not allege any specific
facts regarding whether the [c]ity investigated or disciplined
Lluka in response to the complaints of excessive force.”);
Walker, 2015 WL 4254026, at *11 (noting that “[e]ven if
[the] [p]laintiff had shown an obvious need for more or better
supervision by listing the numerous lawsuits and complaints,
he has not stated any facts to show that the [c]ity has acted
with deliberate indifference” where “he does not specifically
claim that the [c]ity failed to investigate the list of lawsuits”).
Cases finding failures to supervise or discipline have required
more. See, e.g., Buari, 530 F. Supp. 3d at 407–08 (ruling that
the plaintiff sufficiently alleged failure to supervise when “in
approximately 72 cases where courts had found prosecutorial
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misconduct occurred [ ]including the use of and failure to
correct false or misleading testimony and Brady violations[ ],
officials could only identify one prosecutor from between
1975 and 1996 who had been disciplined in any respect”);
Marlin v. City of New York, No. 15-CV-2235, 2016 WL
4939371, at *20–21 (S.D.N.Y. Sept. 7, 2016) (denying motion
to dismiss on failure to discipline claim where officers were
not disciplined in over thirty-five percent of substantiated
complaints, which “plausibly suggest[ed] that the City did
nothing”). 7
d. Final Policymaker
*21 “Actions by an individual with final decision-making
authority in a municipality constitute official policy for
purposes of a § 1983 claim.” Anthony v. City of New
York, 339 F.3d 129, 139 (2d Cir. 2003). “[E]ven a single
action by a decisionmaker who possesses final authority to
establish municipal policy with respect to the action ordered
is sufficient to implicate the municipality in the constitutional
deprivation for the purposes of § 1983.” Amnesty, 361 F.3d
at 126 (internal quotation marks and citation omitted). When
a non-decisionmaker committed the constitutional violation
“a plaintiff must allege facts suggesting that an officer with
final policymaking authority ordered, ratified, or ‘was aware
of a subordinate's unconstitutional actions, and consciously
chose to ignore them, effectively ratifying the actions.’ ” Hu
v. City of New York, 927 F.3d 81, 105 (2d Cir. 2019) (quoting
Amnesty Am., 361 F.3d at 126).
“An official has final authority if his decisions, at the time
they are made, for practical or legal reasons constitute
the municipality's final decisions.” Anthony, 339 F.3d at
139. When alleging policymakers caused the violation,
“the critical inquiry is not whether an official generally
has final policymaking authority; rather, the court must
specifically determine whether the government official is
a final policymaker with respect to the particular conduct
challenged in the lawsuit.” Guity v. Uniondale Union Free
School Dist., No. 18-CV-04369, 2019 WL 3402280, at *7
(E.D.N.Y. July 26, 2019) (alteration omitted). “Whether an
official has final policymaking authority is a legal question,
determined on the basis of state law.” Roe, 542 F.3d at 37.
Plaintiffs do allege in the Second Amended Complaint that
“Defendant Langley is the final decision/policy maker of
the Putnam County Sheriff's Department and in is familiar
with, creates and implements his Department's practices and
policies.” (SAC ¶ 107.) However, Plaintiffs do not point
to any support for this proposition, which they must do to
sufficiently allege Langley was a final policymaker with
respect to the particular conduct challenged in this lawsuit.
See Coppola v. Town of Plattekill, No. 17-CV-1032, 2018
WL 1441306, at *10 (N.D.N.Y. Mar. 22, 2018) (“[M]inimal,
conclusory statements fall far short of satisfying Plaintiff's
burden to allege facts creating a plausible inference that
either of these defendants were final policymakers. Plaintiff
does not direct the Court to New York State law, municipal
charters, or any other source that could support her claim.”);
W.A. v. Hendrick Hudson Cent. Sch. Dist., No. 14-CV-8093,
2016 WL 1274587, at *12–13 (S.D.N.Y. Mar. 31, 2016)
(dismissing a Monell claim where the plaintiffs “allege[d]
that ‘Coughlin, as an administrator for the District, possesses
policy making authority,’ ” but “cite[d] no state or county law
that actually vests Coughlin with final policymaking authority
over the maintenance and protection of student records”);
Canner v. City of Long Beach, No. 12-CV-2611, 2015 WL
4926014, at *6 (E.D.N.Y. Aug. 18, 2015) (noting a prior order
where the court dismissed the plaintiffs’ Monell claim where
the “plaintiffs did not reference any state law supporting
their claim that [an official] was a final policymaker”); see
also Jeffes v. Barnes, 208 F.3d 49, 57–58 (2d Cir. 2000)
(“Where a plaintiff relies not on a formally declared or
ratified policy, but rather on the theory that the conduct of
a given official represents official policy, it is incumbent
on the plaintiff to establish that element as a matter of
law.”); Long v. Cnty. of Orleans, 540 F. Supp. 3d 344,
352–53 (W.D.N.Y. 2021), appeal dismissed (Sept. 1, 2021)
(holding at summary judgment that the “[p]laintiff's vague
assertion of final policymaking authority by Sheriff Bower is
simply insufficient to satisfy his burden” when the plaintiff
“neither produced nor pointed to any evidence or legal
authority supporting the conclusion that Sheriff Bower had
final policymaking authority regarding the force to be used in
effectuating an arrest or when probable cause for an arrest has
been established” (quotation marks omitted)). Accordingly,
the Monell claim cannot stand. 8
9. State Claims
*22 Defendants move to dismiss all of Plaintiffs’ state
claims “except for state law claims for assault, battery and
wrongful death, and Ms. Taranto's corollary claims for loss of
consortium.” (Defs.’ Mem. 2.) 9
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a. Defamation
To state a claim for defamation under New York law, a
plaintiff must allege “(1) a false statement about the plaintiff;
(2) published to a third party without authorization or
privilege; (3) through fault amounting to at least negligence
on part of the publisher; (4) that either constitutes defamation
per se or caused special damages.” Alvarado v. Mount
Pleasant Cottage Sch. Dist., 404 F. Supp. 3d 763, 790
(S.D.N.Y. 2019) (quotation marks omitted). Under New
York law, “spoken defamatory words are slander; written
defamatory words are libel.” Albert v. Loksen, 239 F.3d 256,
265 (2d Cir. 2001); see also Celle v. Filipino Reporter Enters.
Inc., 209 F.3d 163, 176 (2d Cir. 2000) (“Libel is a method of
defamation expressed in writing or print.”).
*23 A plaintiff must plead the defamatory statements with
some particularity. N.Y. C.P.L.R. 3016(a) (“In an action for
libel or slander, the particular words complained of shall
be set forth in the complaint, but their application to the
plaintiff may be stated generally.”). Under Federal Rule of
Civil Procedure 8’s liberal pleading standards, this requires
a plaintiff to “identify the allegedly defamatory statements,
the person who made the statements, the time when the
statements were made, and the third parties to whom the
statements were published.” Neal v. Asta Funding, Inc., 13-
CV-2176, 2014 WL 3887760, at *3 (S.D.N.Y. June 17, 2014).
Plaintiffs argue they have sufficiently pled a cause
of action for defamation because the “filing of false
criminal allegations sufficiently demonstrates libel/slander
per se.” (Pls.’ Mem. 26.) More specifically, Plaintiffs
allege that “Defendants, individually and/or collectively, have
defamed [Taranto] by libel per se and/or slander per se,
libel and/or slander, based upon the false arrest of Plaintiff
and release of false information concerning said arrest, the
sum and substance of which defamatory statements was that
[Taranto] engaged in acts constituting the crime of Menacing
in the Second Degree and other alleged criminal acts despite
knowing them to be false.” (SAC ¶ 206.)
However, “[o]fficers may not be held liable for any allegedly
defamatory statements in their criminal complaints, because
‘individuals participating in a public function such as judicial
proceedings are afforded protection from liability by an
absolute immunity.’ ” Grant v. City of Syracuse, No. 15-
CV-445, 2017 WL 5564605, at *11 (N.D.N.Y. Nov. 17,
2017); Lockett v. City of Middletown, No. 19-CV-08255,
2021 WL 1092357, at *6 (S.D.N.Y. Mar. 22, 2021) (same).
Accordingly, “[a] person filing a formal complaint charging
another with a crime is ... entitled to absolute immunity
from a civil suit for defamation.” Grant, 2017 WL 5564605,
at *11 (citation omitted); see also Frederique v. Cnty. of
Nassau, 168 F. Supp. 3d 455, 488 (E.D.N.Y. 2016) (“[T]o the
extent that Plaintiffs argue that the Felony Complaints and
District Court Informations contained defamatory statements,
the [Nassau County Police Department] officers who made
those statements are protected from liability by an absolute
immunity.”); Goncalves v. Reynolds, 198 F. Supp. 2d 278, 282
(W.D.N.Y. 2001) (holding that absolute immunity shielded
the defendant from liability for defamation where the
“defendant's actions with respect to plaintiff's arrest and the
bringing of the assault charge were clearly prosecutorial in
nature, and were directly related to the decision to prosecute
plaintiff”). Accordingly, Plaintiffs’ defamation claim cannot
stand.
b. Negligence
The elements of a negligence claim under New York law are:
“(i) a duty owed to the plaintiff by the defendant; (ii) breach of
that duty; and (iii) injury substantially caused by that breach.”
Lombard v. Booz–Allen & Hamilton, Inc., 280 F.3d 209, 215
(2d Cir. 2002) (citing Merino v. New York City Transit Auth.,
639 N.Y.S.2d 784 (App. Div. 1996)).
Plaintiffs argue they “have sufficiently pled negligence as
an alternate theory of liability,” because Defendants “owned
[sic] a duty of care to [ ] Taranto who was deprived
of his liberties while in Defendants[’] custody, care and
control.” (Pls.’ Mem. 25.) “Under New York law, a plaintiff
may not recover under general negligence principles for
a claim that law enforcement officers failed to exercise
the appropriate degree of care in effecting an arrest or
initiating a prosecution.” Bernard v. United States, 25 F.3d
98, 102 (2d Cir. 1994); see also Toure v. Air France, No.
21-CV-1645, 2022 WL 4079592, at *3 (E.D.N.Y. Sept. 6,
2022) (“[A] plaintiff seeking damages for an injury resulting
from a wrongful arrest and detention may not recover under
broad general principles of negligence ... but must proceed
by way of the traditional remedies of false arrest and
imprisonment.”) (citation omitted); Durr v. Slator, 558 F.
Supp. 3d 1, 40 (N.D.N.Y. 2021) (“When a plaintiff brings
excessive force and assault claims which are premised upon a
defendant's allegedly intentional conduct, a negligence claim
with respect to the same conduct will not lie.” (citation and
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quotation marks omitted)); Dollard v. City of New York,
408 F. Supp. 3d 231, 238–39 (E.D.N.Y. 2019) (“New York
does not, as a matter of public policy, recognize a claim
for negligence arising out of an arrest or prosecution....
To the extent that a claim for negligence and/or NIED is
based upon injury incident to an arrest, a plaintiff must
resort to the traditional tort remedies of false arrest, false
imprisonment, and malicious prosecution.”); Sullivan v. City
of New York, No. 17-CV-3779, 2018 WL 3368706, at *18
(S.D.N.Y. July 10, 2018) (“New York courts have long
held that, where a plaintiff brings false-arrest and false-
imprisonment claims, she cannot also recover under broad
principles of negligence.”). Accordingly, Plaintiffs cannot
maintain a negligence claim insofar as that claim overlaps
with excessive force, false arrest, false imprisonment, and
malicious prosecution causes of action.
*24 “However, a plaintiff may proceed with negligence
claims brought against law enforcement officials if such
claims are not duplicative of false arrest, false imprisonment,
or malicious prosecution.” Lalonde v. City of Ogdensburg,
––– F. Supp. 3d ––––, 2023 WL 2537626, at *29 (N.D.N.Y.
Mar. 16, 2023). Accordingly, courts have allowed negligence
actions pertaining to deprivations of adequate medical care
to proceed. See Durr, 558 F. Supp. 3d at 40–41 (holding that
plaintiff plausibly alleged both a deliberate indifference to
medical claim needs claim and a negligence claim related to
the failure to provide medical care upon his arrest).
“[I]t is well-established in New York that when the State
assumes physical custody of inmates or detainees, who cannot
protect and defend themselves in the same way as those at
liberty can, the State owes a duty of care to safeguard those
individuals from harm.” Maldonado, 460 F. Supp. 3d at 400–
01 (quotation and citation omitted). Accordingly, courts have
found that when a plaintiff is injured during an arrest and
the arresting officers fail to provide medical care upon arrest,
a plaintiff may proceed with a negligence claim. See Durr,
558 F. Supp. 3d at 41 (holding negligence claim survived
when the “complaint plausibly alleges that Plaintiff was
seriously injured during the course of his arrest and that the
City Defendants, knowing that Plaintiff was in severe pain,
declined to take him to the Upstate Emergency Department
for treatment, despite being instructed to do so by healthcare
personnel”).
Plaintiffs allege that “Defendants refused to permit [ ] Taranto
to receive proper medical attention at the scene or to be
removed from the scene via ambulance,” and that “[a]ny
first aid provided at the scene by any Fire Department
personnel or Emergency Medical Technician present at the
scene was insufficient and inadequate to address [ ] Taranto's
medical distress.” (SAC ¶¶ 46, 48.) Federal Rule of Civil
Procedure 8 “requires, at a minimum, that a complaint give
each defendant fair notice of what the plaintiff's claim is
and the ground upon which it rests.” Patrico v. Voya Fin.,
Inc., No. 16-CV-7070, 2017 WL 2684065, at *5 (S.D.N.Y.
June 20, 2017) (quotation marks omitted). A complaint fails
this standard when it “lump[s] all the defendants together
in each claim and provid[es] no factual basis to distinguish
their conduct.” Id. Plaintiffs have brought the claims against
multiple Defendants, namely Putnam County Sheriff's Office
employees, not all of whom were present at the scene,
and possibly Fire Department personnel, and Emergency
Medical Technicians. (See generally SAC.) It is unclear from
Plaintiffs’ pleadings which Defendants prevented Taranto
from receiving proper medical attention or what medical
attention Taranto was prevented from receiving, as Plaintiffs
have simply pled that “Defendants” were responsible for
such actions and have not provided a “plausible factual
basis to distinguish the conduct of each of the defendants.”
Bardwil Indus. Inc. v. Kennedy, No. 19-CV-8211, 2020 WL
2748248, at *3 (S.D.N.Y. May 27, 2020). On that basis,
the negligence claim must fail. See Nesbeth v. N.Y.C. Mgmt.
LLC, 17-CV-8650, 2019 WL 110953 (S.D.N.Y. Jan. 4, 2019)
(“[I]t is well-established in this Circuit that plaintiffs cannot
simply lump defendants together for pleading purposes”
under Rule 8 (quotation marks omitted)); Medina v. Bauer,
No. 02-CV-8837, 2004 WL 136636, at *6 (S.D.N.Y. Jan. 27,
2004) (“By lumping all the defendants together and failing
to distinguish their conduct, plaintiff's amended complaint
fails to satisfy the requirements of Rule 8. Specifically, the
allegations fail to give adequate notice to these defendants as
to what they did wrong.”).
c. Negligent Hiring, Supervision, and Training
*25 Defendants argue that Plaintiffs’ negligent-hiring,
retention, training, and supervision claims are not actionable
under New York law because all Defendants were acting
within the scope of their employment. (Defs.’ Mem. 21.)
Indeed, Plaintiffs allege that, at all relevant times, Defendants
“were acting within the scope of their employment and
in furtherance of the purposes and business of Putnam
County and/or the Putnam County Sheriff's Office, and/
or Fire Department personnel and/or Emergency Medical
Technicians.” (SAC ¶ 7.) “New York law provides that an
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employer can be liable for the torts of an employee who acts
within the scope of his or her employment under the theory
of respondeat superior, but no claim may proceed against
the employer for negligent hiring, retention, supervision or
training.” Hurt v. City of New York, No. 15-CV-7612, 2018
WL 4007639, at *4 (S.D.N.Y. Aug. 22, 2018) (quotation
marks omitted). An “exception to [this] general principle
exists where the plaintiff is seeking punitive damages from
the employer based on alleged gross negligence in the
hiring or retention of the employee.” Nesheiwat v. City of
Poughkeepsie, No. 11-CV-7072, 2013 WL 620267, at *2
(S.D.N.Y. Feb. 13, 2013).
“It is [ ] well settled that ‘the State and its political
subdivisions [such as counties] are not subject to punitive
damages ... [as] the goals of punishment and deterrence are
not served when punitive damages are imposed against the
State, for in such circumstances, it ultimately is the innocent
taxpayer who is punished.’ ” Martinez v. Cnty. of Suffolk, 999
F. Supp. 2d 424, 433 (E.D.N.Y. 2014) (citing Hubbard v. Town
of Sand Lake, 667 N.Y.S.2d 496, 498 (App. Div. 1998)); see
also Ogunkoya v. Cnty. of Monroe, No. 15-CV-6119, 2020
WL 3791850, at *8 (E.D.N.Y. July 7, 2020) (noting that
municipalities are not subject to punitive damages). “Thus,
the negligent hiring claim ... is dismissed.” Martinez, 999 F.
Supp. 2d at 433.
d. Prima Facie Tort
To survive a motion to dismiss on a claim of prima facie tort, a
plaintiff must allege: (1) the defendant's intentional infliction
of harm; (2) special damages resulting from the defendant's
actions; (3) a lack of “excuse or justification”; and (4) that the
defendant's act or acts would otherwise be lawful. NE Brands
LLC v. Seattle Pac. Indus., Inc., No. 19-CV-7420, 2020 WL
4287989, at *2 (S.D.N.Y. July 27, 2020) (quoting U.S. for Use
and Benefit of Evergreen Pipeline Constr. Co., Inc. v. Merritt
Meridian Constr. Corp., 95 F.3d 153, 161 (2d Cir. 1996)).
“Special damages” refers to an injury made up of a “specific
and measurable loss.” Freihofer v. Hearst Corp., 65 N.Y.2d
135, 143 (1985). Defendants argue that Plaintiffs have failed
to allege any specific damages and their claim therefore fails.
(Defs.’ Mem. 22.) Plaintiffs have failed to respond to this
argument. (See generally Pls.’ Mem.)
Federal courts have the discretion to deem a claim abandoned
when a defendant moves to dismiss that claim and the
plaintiff fails to address in their opposition papers the
defendant's arguments for dismissing such a claim. See,
e.g., Lipton v. Cnty. of Orange, 315 F. Supp. 2d 434,
446 (S.D.N.Y. 2004) (“This Court may, and generally
will, deem a claim abandoned when a plaintiff fails to
respond to a defendant's arguments that the claim should
be dismissed.”); Anti–Monopoly, Inc. v. Hasbro, Inc., 958
F. Supp. 895, 907 n.11 (S.D.N.Y. 1997) (“[T]he failure to
provide argument on a point at issue constitutes abandonment
of the issue ... which provides an independent basis for
dismissal.” (citations omitted)), aff'd, 130 F.3d 1101 (2d Cir.
1997); see also Robinson v. Fischer, No. 09-CV-8882, 2010
WL 5376204, at *10 (S.D.N.Y. Dec. 29, 2010) (report and
recommendation) (collecting cases). Because Plaintiffs have
failed to address Defendants’ argument for dismissing the
prima facie tort claim, that claim is abandoned. See Laface v.
E. Suffolk BOCES, No. 18-CV-1314, 2019 WL 1959489, at *8
(E.D.N.Y. May 2, 2019) (“In the Second Circuit, a plaintiff's
failure to respond to contentions raised in a motion to dismiss
constitute[s] an abandonment of those claims.” (alteration
and quotation marks omitted) (collecting cases)); Romeo &
Juliette Laser Hair Removal, Inc. v. Assara I LLC, No. 08-
CV-442, 2014 WL 4723299, at *7 (S.D.N.Y. Sept. 23, 2014)
(“At the motion to dismiss stage ... a plaintiff abandons
a claim by failing to address the defendant's arguments in
support of dismissing that claim.”).
III. Conclusion
*26 For the foregoing reasons, Defendants’ Motion is
granted in part and denied in part. Defendants’ request that
all of Plaintiffs’ state causes of action be dismissed as a
result of Plaintiffs’ failure to comply with New York's General
Municipal Law is denied. The remainder of Defendants’
Motion is granted. Because this is the first adjudication
of Plaintiffs’ claims on the merits, Plaintiffs’ claims are
dismissed without prejudice. If Plaintiffs wish to file a third
amended complaint alleging additional facts and otherwise
addressing the deficiencies identified above, Plaintiffs must
do so within 30 days of the date of this Opinion & Order.
There will be no extensions. Plaintiffs are further advised
that the third amended complaint will completely replace,
not supplement, the instant Second Amended Complaint.
The third amended complaint must therefore contain all of
the claims, defendants, and factual allegations that Plaintiffs
wish the Court to consider. If Plaintiffs fail to timely file a
third amended complaint, the claims may be dismissed with
prejudice.
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The Court will hold a status conference on October 3, 2023,
at 12:15 P.M.
SO ORDERED.
All Citations
Not Reported in Fed. Supp., 2023 WL 6318280
Footnotes
1 Plaintiffs have withdrawn their malicious prosecution and Eighth Amendment claims. (Mem. of Law for Reply
to Mot. to Dismiss. 14, 16.)
2 The Arrest Report, Use of Force Form, Appearance Ticket, Criminal Court Information, Criminal Court
Discovery, Photograph Hospital, Photograph Surgery, and Personnel Investigation, attached to Plaintiffs’
Opposition, are also attached to the Second Amended Complaint.
3 Defendants note that the defendant in DiPippo v. County of Putnam was actually Quick's father. (Defs.’ Mem.
18.)
4 Plaintiffs in their Opposition also point to “the statements of [ ] Langley, which purport to have one of
his subordinates change the Use of Force Form with respect to the use of an impact weapon upon [ ]
Taranto.” (Pls.’ Mem 15.) Plaintiffs do not make any such allegations in the Second Amended Complaint.
5 Plaintiffs posit that the municipal liability lies because of “the failure to maintain an independent police review
board.” (SAC ¶ 161.) However, an alleged absence of a formal policy is not a policy: “the absence of a
policy is not a policy and is not actionable under Monell.” Zachary v. City of Newburgh, No. 13-CV-5737,
2014 WL 1508705, at *5 (S.D.N.Y. Apr. 1, 2014) (citing Monell, 436 U.S. at 690–91); see also Quinones v.
New York City, No. 19-CV-5400, 2020 WL 5665142, at *19 (S.D.N.Y. Aug. 17, 2020) (“[B]ut, under Monell,
a municipality's failure to put a formal policy in place to prevent unlawful conduct is not the same thing as
an actionable policy.”), report and recommendation adopted, No. 19-CV-5400, 2020 WL 6901340 (S.D.N.Y.
Nov. 23, 2020). “Nonetheless, the Supreme Court has left a narrow opening for § 1983 claims like the one
[the Court] address[es] here seeking liability based not on affirmative conduct but on a government official's
failure to act.” Reynolds v. Giuliani, 506 F.3d 183, 191–92 (2d Cir. 2007) (citing City of Canton, 489 U.S. at
394–95 (O'Connor, J., concurring in part and dissenting in part) (“Where ... a claim of municipal liability is
predicated upon a failure to act, the requisite degree of fault must be shown by proof of background events
and circumstances which establish that the ‘policy of inaction’ is the functional equivalent of a decision by
the city itself to violate the Constitution.”)). When a municipality “does not have an adequate policy ...Monell
liability exists ‘where a local government is faced with a pattern of misconduct and does nothing, compelling
the conclusion that the local government has acquiesced in or tacitly authorized its subordinates’ unlawful
actions.” Fraser v. City of N.Y., No. 20-CV-4926, 2021 WL 1338795, at *10 (S.D.N.Y. Apr. 9, 2021) (quoting
Reynolds, 506 F.3d at 192). “Such a pattern, if sufficiently persistent or widespread as to acquire the force
of law, may constitute a policy or custom within the meaning of Monell.” Id.
6 Plaintiffs have not argued that they have plausibly alleged municipal liability on the basis of a widespread
practice of excessive force. (Pls.’ Mem. 22–24.) Indeed, Plaintiffs have not pointed to any other instances
of excessive use of force beyond the incident described at hand. (See generally SAC.) This alone is fatal to
Plaintiffs’ Monell claim. See Aragon v. New York, No. 14-CV-9797, 2017 WL 2703562, at *6 (S.D.N.Y. June
22, 2017) (dismissing claims where “[the] [p]laintiff seems to allege the existence of a practice adopted by the
[County] solely based on [the] [p]laintiff's alleged experience”); Gordon v. City of New York, No. 10-CV-5148,
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2012 WL 1068023, at *4 (E.D.N.Y. Mar. 29, 2012) (dismissing Monell claim where the plaintiff's “allegation
[was] unsupported by anything other than the facts of what occurred in his particular case”).
7 In DiPippo, the court noted that Plaintiff alleged that “Stephens and other supervisors purportedly knew about
Castaldo and Quick's misconduct, personally participated in it, and failed to document or disclose it. Stephens
and other supervisors also allegedly failed to prevent Castaldo and Quick from engaging in misconduct,
participated in it, encouraged it, and affirmatively misrepresented to prosecutors that no misconduct had
occurred ... Stephens updated Thoubboron about all major investigatory developments. Hence, Thoubboron
was either aware of the misconduct committed by Defendants Stephens, Castaldo, and Quick or willfully blind
to it.” 2019 WL 1004152, at *6. However, Plaintiffs have made no specific allegations in the Second Amended
Complaint about any alleged failure to supervise or discipline.
Plaintiffs additionally allege that “[a]t all times mentioned herein and prior to the incidents described herein,
Putnam County, by and through its policy makers, maintained a policy, practice or custom, officially or
unofficially, of failing to adequately supervise, discipline and/or train its officers, including with respect to the
use of force, tactics with respect to responding to emotionally disturbed persons and the use of weapons
during police encounters.” (SAC ¶ 162.) Plaintiffs have not alleged any prior failures to supervise or discipline
officers for use of force, tactics with respect to responding to emotionally disturbed persons and the use of
weapons during police encounters.
8 Furthermore, Plaintiffs do not specifically argue in their Opposition that Monell liability is predicated upon an
act of a final policymaker or point to a specific to act in their briefing. (Pls.’ Mem. 22–24.)
9 Defendants aver that Plaintiffs’ state law claims are precluded due to their failure to comply with General
Municipal Law § 50-h. (Defs.’ Mem 20–21.) Section 50-h states:
[w]herever a notice of claim is filed against a city, county, town, village, fire district, ambulance district
or school district the city, county, town, village, fire district, ambulance district or school district shall
have the right to demand an examination of the claimant relative to the occurrence and extent of the
injuries or damages for which claim is made, which examination shall be upon oral questions unless the
parties otherwise stipulate .... The action ... may not be commenced until compliance with the demand for
examination if the claimant fails to appear at the hearing or requests an adjournment or postponement
beyond the ninety day period.
N.Y. Gen. Mun. Law § 50-h(1);(5). In federal court, “a ‘plaintiff's failure to attend a 50-h [h]earing—no matter
the reason—is a complete bar to his state law claims[.]’ ” Bird v. Cnty. of Westchester, No. 20-CV-10076,
2022 WL 2263794, at *12–13 (S.D.N.Y. June 23, 2022) (citation omitted); see also Misek-Falkoff v. Metro.
Transit Auth. (MTA), 843 N.Y.S.2d 155, 156 (App. Div. 2007) (“A party who has failed to comply with General
Municipal Law § 50-h is generally precluded from commencing an action against a municipality[.]”); Baumblatt
v. Battalia, 520 N.Y.S.2d 571, 574 (App. Div. 1987) (dismissing a complaint against a town because “the
plaintiff failed to appear for examination on his original notice of claim as requested by the town's attorney
pursuant to General Municipal Law § 50-h and this failure bars the commencement of an action against
the town”). Plaintiffs’ Second Amended Complaint only states that “Defendants have not held a hearing on
this claim pursuant to General Municipal Law 50-h.” (SAC ¶ 21.) This Court cannot determine at this stage
whether this was due to Taranto's failure to attend the hearing.
Defendants also moved to dismiss Plaintiffs’ intentional infliction of emotional distress claims against the
County. (Defs.’ Mem 21.) Plaintiffs “concede that a cause of action for intentional infliction of emotional
distress against Putnam County cannot be maintained.” (Pls.’ Mem. 25.)
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