Passino v. Fulton County New York et al

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UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK
________________________________________
JOSEPH R. PASSINO,
Plaintiff,
v. 	1:25-cv-00727 (AMN/DJS)
FULTON COUNTY NEW YORK, et al.,
Defendants.
________________________________________
APPEARANCES:
UBA LAW FIRM, P.C.
744 Broadway
Albany, New York 12207
Attorneys for Plaintiff
MURPHY BURNS GROUDINE LLP
407 Albany Shaker Road
Loudonville, New York 12211
Attorneys for Defendants Fulton County,
Richard C. Giardino, Jeffrey Fake,
Jordan M. Shannon, and Robert Stemmler
OF COUNSEL:
VINCENT U. UBA, ESQ.
STEPHEN M. GROUDINE, ESQ.
Hon. Anne M. Nardacci, United States District Judge:
MEMORANDUM-DECISION AND ORDER
I. 	INTRODUCTION
On April 22, 2025, Plaintiff Joseph R. Passino commenced this suit in New York Supreme
Court pursuant to 42 U.S.C. § 1983 (“Section 1983”) and New York state law alleging injuries
arising out of two criminal prosecutions and raising various related claims against Richard C.
Giardino, Jeffrey Fake, Jordan M. Shannon, and Robert Stemmler in their official and individual
capacities, and against Fulton County (collectively, “County Defendants”). 	See Dkt. No. 2
(“Complaint”). Plaintiff also brings claims against Jodie-Lynn Vannie and Gladys K. Griffith, who
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have not appeared in the action, and an unidentified Jane Doe (collectively with County
Defendants, “Defendants”). See id. County Defendants removed the state action to this Court on
June 9, 2025. Dkt. No. 1.
Presently before the Court is County Defendants’ motion to dismiss for failure to state a
claim on which relief can be granted. Dkt. No. 10 (the “Motion”); see Fed. R. Civ. Pro. 12(b)(6).
Plaintiff opposed the Motion, see Dkt. No. 19, and County Defendants replied in further support.
Dkt. No. 20.
For the reasons set forth below, the Motion is granted in part and denied in part.
II. 	BACKGROUND
Unless otherwise noted, the following facts are drawn from the Complaint, its attachments,
or materials it incorporates by reference, and are assumed to be true for purposes of ruling on the
motion, see Div. 1181 Amalgamated Transit Union-N.Y. Emps. Pension Fund v. N.Y.C. Dep’t of
Educ., 9 F.4th 91, 94 (2d Cir. 2021) (per curiam), or are otherwise matters of public record.
Williams v. N.Y.C. Hous. Auth., 816 F. App’x 532, 534 (2d Cir. 2020).
A. The Parties
Plaintiff Joesph R. Passino is an individual residing in Fulton County, New York. Dkt. No.
2 at ¶ 1. At all relevant times, Plaintiff was the Dog Control Officer for the Town of Perth, New
York. Id. at ¶ 2. Plaintiff also served as a volunteer backup Animal Control Officer for the Fulton
County Sheriff’s Department, the New York State Police, the Town of Amsterdam, the Town of
Bleecker, and the Village of Mayfield. Id. at ¶ 3.
Fulton County is a municipal corporation organized under New York law, with its principal
administrative office in Johnstown, New York. 	Id. at ¶¶ 4, 7. At all relevant times, Defendant
Richard C. Giardino was the Fulton County Sheriff, see id. at ¶ 14, Defendants Jeffrey Fake and
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Jordan M. Shannon were deputy sheriffs with the Fulton County Sheriff’s Department (“FCSD”),
see id. at ¶¶ 8, 10, and Defendant Robert Stemmler was a sergeant with FCSD who also supervised
Defendant Shannon. Id. at ¶ 12.
At all relevant times, Defendants Jodi-Lynn Vannie and Gladys K. Griffith were individuals
residing in Amsterdam, New York. See Dkt. No. 2-12 at 1; Dkt. No. 2-3 at 6.1
B. Plaintiff’s Allegations
Plaintiff’s claims arise out of two incidents, each leading to an arrest and a criminal
proceeding. See Dkt. No. 2 at ¶¶ 42-220. For context, Plaintiff also alleges a particular history of
interactions between himself and FCSD, see id. at ¶¶ 22-41, including two instances in which
FCSD called him to shoot a sick or injured animal within five hundred feet of a “dwelling house,
farm building or farm structure, school building, school playground, or occupied factory or
church,” one instance in which FCSD members shot a horse within five hundred feet of the same,
and one instance in which Plaintiff refused a directive by Defendant Giardino to break into a home
without a warrant to seize an unlicensed dog that had been deprived of food and water for a week.
Id. at ¶¶ 22-39. As to this last instance, Plaintiff alleges that “because [he] would not go along
with FCSD’s lawful or unlawful instructions[,]” FCSD employees and agents no longer wanted
him as the Dog Control Officer. Id. at ¶ 40.
1. 	April 7, 2021 Arrest
As to the first incident, Plaintiff alleges that on January 4, 2021, he received multiple calls
regarding two at-large dogs, one of which was acting aggressively. Id. at ¶ 42. After Defendant
Griffith informed Plaintiff that she had seen the dogs walking toward Perth Bible Church, Plaintiff
1 Citations to court documents utilize the pagination generated by CM/ECF, the Court’s electronic
filing system.
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drove to that location and saw the two dogs in the driveway of the pastor’s house, which is also on
the property. Id. at ¶¶ 43-44. Perth Bible Church also operates a school, which was in session.
See Dkt. No. 2-3 at 2. Then, Plaintiff alleges that while he was waiting for backup, he observed
one of the dogs barking and growling at someone in the house, at which point he attempted to
engage the dogs himself next to the garage while armed with a loaded pistol. Dkt. No. 2 at ¶¶ 45-
47. Plaintiff alleges that one of the dogs had already charged his truck aggressively when he pulled
in, and that the same dog “lunged violently” at him when he was out of the truck. Id. at ¶¶ 45, 48.
Plaintiff alleges that after he missed an attempt to hit that dog with the butt of his pistol, the dog
again lunged violently at Plaintiff, who then “took the safety lock off his pistol and shot the male
dog with the bullet grazing the male dog’s tooth.” Id. at ¶ 48. At that point, the dog retreated. Id.
Plaintiff then reported the incident to FCSD, canvassed the neighborhood, and identified the dogs’
owner, who later found and collected the dogs. Id. at ¶¶ 49-50.
After an investigation into the incident that took place on January 4, 2021, Defendant Fake
arrested Plaintiff on April 7, 2021 and charged him with reckless endangerment in the second
degree and illegal discharge of a firearm within five hundred feet of a dwelling house and school
building, both misdemeanors. Id. at ¶¶ 51-53 (citing N.Y. Pen. Law § 120.20 and N.Y. Envir. Cons.
Law § 11-9031.4(a)(2)). 	Defendant Fake’s accusatory instrument indicates that he based the
charges on Plaintiff’s verbal statements and the depositions of Nicole Langlois, the owner of the
dogs, Mark Appell, the pastor of Perth Bible Church, and Defendant Griffith. Dkt. No. 2-3. As a
result of the charges and a securing order levying various conditions on Plaintiff, see Dkt. No. 2-
4, Plaintiff alleges that he appeared in Northampton Town Court at least three times. Dkt. No. 2
at ¶ 72. 	On November 27, 2022, the town prosecutor issued Plaintiff an Adjournment in
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Contemplation of Dismissal for both charges, which were then dismissed on December 26, 2022.
Dkt. No. 2-6; see also Dkt. No. 2 at ¶ 77.
2. 	August 10, 2022 Arrest
As to the second incident, Plaintiff alleges that on July 27, 2022, while Defendant Vannie
was on her back porch with her two dogs, Plaintiff pulled up to her porch, informed her that he
was the Dog Control Officer, and asked whether her dogs were licensed. Dkt. No. 2 at ¶¶ 93-94.
After Defendant Vannie stated that they were not licensed, Plaintiff then alleges that he told
Defendant Vannie that the law required her to license her dogs and provided her a handwritten note
with his name, phone number, title, and the Town Hall hours of operation. Id. at ¶¶ 94-95.
During their interaction, Plaintiff alleges that Defendant Vannie asked for identification
and Plaintiff responded by showing her his Town of Perth Dog Control Officer badge. Id. at ¶ 96.
Plaintiff also alleges that he asked if Defendant Vannie wanted to see his identification card issued
by FCSD, but she said no. Id. at ¶ 97. According to Plaintiff, FCSD issued him an identification
card on January 20, 2000, identifying him as the “Perth Dog Control Officer,” and some time after
that, Plaintiff was issued a badge with the designation: “Town of Perth, Fulton County, New York,
Dog Control Officer.” Id. at ¶¶ 88-89; see also Dkt. Nos. 2-7, 2-8.
After that interaction, Defendant Vannie called FCSD and spoke with Defendant Jane Doe.
Dkt. No. 2 at ¶ 102; see Dkt. No. 2-10 (call transcript). During the call, Defendant Vannie sought
to confirm Plaintiff’s identity, and also stated that Plaintiff had implied that Defendant Vannie
might be ticketed if she didn’t register her dogs and told her that he was “with the Sheriff’s
Department.” 	See Dkt. No. 2-10. 	Jane Doe then expressed concern that Plaintiff purportedly
identified himself as a member of FCSD and advised Defendant Vannie that their phone
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conversation would be forwarded to the administrative sergeant. Id. at 7:21-23, 9:14-18, 10:17-
22.2
On July 28, 2022, Defendant Vannie gave an in-person sworn deposition to Defendant
Shannon. Dkt. No. 2 at ¶ 108; see Dkt. No. 2-11 (deposition transcript). During their conversation,
Defendant Vannie recounts her version of the interaction with Plaintiff, specifically asserting that
Plaintiff stated that he was “with the Sherriff’s,” that Plaintiff showed her his badge that “looked
like any normal badge that a police officer would have,” and that she believed that Plaintiff was
functioning as a law enforcement official. Dkt. No. 2-11 at 18:11-24, 26:18-23.
On August 10, 2022, Defendant Shannon arrested Plaintiff outside of Plaintiff’s home
without a warrant and charged him with criminal impersonation of a law enforcement officer, a
class E felony. Dkt. Nos. 2 at ¶ 125 (citing N.Y. Pen. Law § 190.26(1)); see also Dkt. No. 2-14.
According to the accusatory instrument, Defendant Shannon based his arrest on Defendant
Vannie’s sworn deposition testimony. See Dkt. No. 2-14.
During the arrest, Plaintiff alleges that Defendant Shannon took Plaintiff’s badge and never
returned it. Dkt. No. 2 at ¶¶ 174-175. Plaintiff also alleges that Defendant Shannon initially agreed
to not handcuff Plaintiff during transport for processing, but as they were walking to the police
vehicle, Defendant Shannon grabbed Plaintiff by his left shoulder, shook him, and screamed, “stop
resisting, stop resisting!” Id. at ¶ 182. Plaintiff then alleges that he told Defendant Shannon that
he was hurting Plaintiff, but Defendant Shannon “continued to scream and shake [Plaintiff].” Id.
At some point after, Defendant Shannon handcuffed Plaintiff. Id. at ¶ 195. Plaintiff alleges that
Defendant Shannon knew that Plaintiff’s left shoulder was injured, as evidenced by Defendant
2 Plaintiff contends that based on Defendant Shannon’s case report, the administrative sergeant
was Defendant Stemmler. Dkt. No. 19 at 27 n.5; see also Dkt. No. 2-13 at 2.
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Shannon noting in his case report: Plaintiff “had informed me [that] he has a shoulder injury and
could not be handcuffed from the back so I handcuffed [Plaintiff] from the front of his body.” Id.
at ¶ 183; see Dkt. No. 2-13 at 4.
Before and after processing, Plaintiff alleges that Defendant Shannon stated multiple times
that Plaintiff would be lucky if Defendant Shannon did not also charge him with resisting arrest.
Dkt. No. 2 at ¶¶ 184-185. Plaintiff then alleges that after Defendant Shannon brought him back
home after processing, Plaintiff pointed to the security cameras around his house, and said: “[Y]ou
have been caught doing dirty and a Black Sheriff Deputy can go to jail just as quick as a White
man, so you have 10 seconds to arrest me for another bull charge or leave and always remember
this!!” 	Id. at ¶ 185. 	Plaintiff alleges that Defendant Shannon’s actions during the arrest
exacerbated his shoulder injury and caused “severe physical, mental, and emotional pain . . . to
such an extent that more than two years after the incident, [Plaintiff] is still receiving medical
treatment.” Id. at ¶ 188.
On September 1, 2022, Plaintiff resigned as the Town of Perth Dog Control Officer. Dkt.
No. 2 at ¶ 137.
Plaintiff attended Northampton Town Court four times due to his criminal impersonation
charge and a securing order imposing conditions on Plaintiff. Id. at ¶¶ 134-135; see also Dkt. No.
2-15. On June 6, 2024, the town prosecutor issued Plaintiff an Adjournment in Contemplation of
Dismissal, and the criminal impersonation charge was dismissed on June 7, 2024. Dkt. No. 2-16
at 2; see also Dkt. No. 2 at ¶ 136.
C. Plaintiff’s Claims
As to the charges filed on April 7, 2021, Plaintiff brings malicious prosecution claims
pursuant to Section 1983 against Defendants Fake, Giardino, Fulton County, and Griffith. 	See
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Dkt. No. 2 at ¶¶ 78-87. As to the arrest and charges filed on August 10, 2022, Plaintiff brings
claims for malicious prosecution, unlawful search and seizure, excessive force, false arrest, and
malicious abuse of legal process pursuant to Section 1983, as well as conspiracy claims pursuant
to Section 1983 and 42 U.S.C. § 1985(3) (“Section 1985(3)”), against Defendants Shannon,
Stemmler, Fake, Giardino, Fulton County, Vannie, and Jane Doe. See id. at ¶¶ 146-161, 169-220.
Finally, Plaintiff brings a malicious prosecution claim under New York law against Defendant
Vannie. Id. at ¶¶ 162-168.
III. 	STANDARD OF REVIEW
A motion to dismiss for failure to state a claim pursuant to Rule 12(b)(6) tests the legal
sufficiency of a party’s claim for relief. See Patane v. Clark, 508 F.3d 106, 111-12 (2d Cir. 2007).
In considering legal sufficiency, a court must accept as true all well-pled facts in the complaint and
draw all reasonable inferences in the pleader’s favor. 	See ATSI Commc’ns, Inc. v. Shaar Fund,
Ltd., 493 F.3d 87, 98 (2d Cir. 2007). 	This presumption, however, does not extend to legal
conclusions. 	See Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). Although a court’s review of a
motion to dismiss is generally limited to the facts presented in the pleadings, the court may
consider documents that are “integral” to the pleadings even if they are neither physically attached
to, nor incorporated by reference into, the pleadings. See Mangiafico v. Blumenthal, 471 F.3d 391,
398 (2d Cir. 2006) (quoting Chambers, 282 F.3d at 152-53).
To survive a motion to dismiss, a party need only plead “a short and plain statement of the
claim,” Fed. R. Civ. P. 8(a)(2), with sufficient factual “heft to sho[w] that the pleader is entitled to
relief.” 	Bell Atl. Corp. v. Twombly, 550 U.S. 544, 557 (2007) (alteration in original) (quotation
omitted). Under this standard, a pleading’s “[f]actual allegations must be enough to raise a right
to relief above the speculative level,” id. at 555, and present claims that are “plausible on [their]
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face.” Id. at 570. “The plausibility standard is not akin to a ‘probability requirement,’ but it asks
for more than a sheer possibility that a defendant has acted unlawfully.” Iqbal, 556 U.S. at 678
(citation omitted). “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). Ultimately, “when the allegations in a complaint, however
true, could not raise a claim of entitlement to relief,” Twombly, 550 U.S. at 558, or where a plaintiff
has “not nudged [his or her] claims across the line from conceivable to plausible, [the] complaint
must be dismissed.” Id. at 570.
IV. 	DISCUSSION3
A. Fourth or Fourteenth Amendment
As an initial matter, “[w]hen a plaintiff brings both Fourth and Fourteenth Amendment
claims that arise out of the same conduct by defendants, the two claims may not proceed
simultaneously.” Fraser v. City of New York, No. 20-cv-5741, 2022 WL 3045524, at *2 (E.D.N.Y.
Aug. 1, 2022) (citations omitted). 	“In these circumstances, courts must identify the specific
constitutional right allegedly infringed . . . and judge the claim by reference to the specific
constitutional standard which governs that right.” 	Id. (internal quotation marks and citation
omitted).
3 When considering a Rule 12(b)(6) motion to dismiss for failure to state a claim, “a district court
may consider the facts alleged in the complaint, documents attached to the complaint as exhibits,
and documents incorporated by reference in the complaint.” 	United States ex rel. Foreman v.
AECOM, 19 F.4th 85, 106 (2d Cir. 2021) (citation omitted). 	Here, Plaintiff attaches numerous
state court documents to the Complaint that he relies upon in support of his allegations. See Dkt.
Nos. 2-1-2-17. 	Neither party challenges the relevance, authenticity, or accuracy of these
documents. 	See Nicosia v. Amazon.com, Inc., 834 F.3d 220, 231 (2d Cir. 2016) (noting that if
“there is a dispute as to the relevance, authenticity, or accuracy of the documents relied upon, the
district court may not dismiss the complaint with those materials in mind”). Accordingly, the Court
finds that it may consider these documents for purposes of deciding the County Defendants’
Motion.
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To the extent that Plaintiff’s Section 1983 claims of malicious prosecution, false arrest,
unlawful search and seizure, and excessive force are based on the Fourteenth Amendment, those
claims must be dismissed. “[I]t is the Fourth Amendment, and not [the Fourteenth Amendment
right to] substantive due process, under which a [Section] 1983 malicious prosecution claim must
be analyzed.” 	Wagner v. Hyra, 518 F. Supp. 3d 613, 635 (N.D.N.Y. 2021) (internal quotation
marks and citation omitted). Regarding Plaintiff’s false arrest claim, “because claims for unlawful
arrest are governed by the Fourth Amendment, Plaintiff may not seek relief for . . . alleged unlawful
arrest[s] under the rubric of a denial of his substantive due process rights.” Barkai v. Nuendorf,
No. 21-cv-4060, 2023 WL 2691712, at *32 (S.D.N.Y. Mar. 29, 2023) (quoting Harford v. Cnty. of
Broome, 102 F. Supp. 2d 85, 95 (N.D.N.Y. 2000)). 	Similarly, “because the Fourth Amendment
provides an explicit textual source of constitutional behavior against searches by law enforcement
officials, Plaintiff’s unlawful search claim cannot be analyzed under the Fourteenth Amendment.”
Rosado v. Vill. of Goshen, No. 16-cv-6916, 2019 WL 1437522, at *4 (S.D.N.Y. Mar. 31, 2019)
(internal quotation marks and citations omitted). 	Furthermore, courts evaluate excessive force
claims arising out of an arrest or seizure under the Fourth Amendment using an objective
reasonableness standard. See Figuereo v. City of Saratoga Springs, No. 23-cv-922 (AMN/PJE),
2025 WL 460784, at *7 (N.D.N.Y. Feb. 11, 2025).
Additionally, to the extent that Plaintiff’s Section 1983 claim of malicious abuse of process
is based on the Fourth Amendment, that claim must also be dismissed. “[I]n the criminal context,
malicious abuse of process is by definition a denial of procedural due process.” Zappin v. Cooper,
No. 23-165, 2024 WL 3084015, at *2 (2d Cir. June 21, 2024) (citation omitted). Thus, Plaintiff’s
claims for malicious abuse of process must be evaluated under the Fourteenth Amendment.
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B. Malicious Prosecution
“The elements of a [Section] 1983 malicious prosecution claim require that the plaintiff
prove that (1) the defendant initiated a prosecution against the plaintiff, (2) the defendant lacked
probable cause to believe the proceeding could succeed, (3) the defendant acted with malice, (4)
the prosecution was terminated in plaintiff’s favor, and (5) there was a sufficient post-arraignment
liberty restraint to implicate the plaintiff’s Fourth Amendment rights.” Wagner, 518 F. Supp. 3d
at 633 (quoting Bernshtein v. City of New York, 496 F. App’x 140, 142 (2d Cir. 2012) (summary
order)); see also Rohman v. N.Y.C. Transit Auth. (NYCTA), 215 F.3d 208, 215 (2d Cir. 2000).
Here, Plaintiff’s malicious prosecution claim fails because the underlying state court
actions were not terminated in Plaintiff’s favor. Attached to the Complaint are the certificate of
dispositions for the underlying state court actions, which indicate that the criminal charges brought
against Plaintiff were adjourned in contemplation of dismissal pursuant New York Criminal
Procedure Law § 170.55. 	See Dkt. Nos. 2-6, 2-16. 	“It has long been established that the
acceptance of an adjournment in contemplation of dismissal does not constitute a favorable
determination for purposes of a malicious prosecution claim.” Brill v. Ulster Cnty., 799 F. Supp.
3d 73, 85 (N.D.N.Y. 2025) (citations omitted); see also Fulton v. Robinson, 289 F.3d 188, 196 (2d
Cir. 2002) (explaining that adjournment in contemplation of dismissal “is not a favorable
termination because it leaves open the question of the accused’s guilt and allows the state to pursue
the criminal prosecution in the interests of justice during the conditional period”) (citation
omitted).
Accordingly, the Court dismisses Plaintiff’s malicious prosecution claim under the Fourth
Amendment.
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C. False Arrest
“A [Section] 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) (quoting
Kee v. City of New York, 12 F.4th 150, 158 (2d Cir. 2021)). “Under 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. Aug. 20, 2025) (quoting Triolo v. Nassau Cnty., 24 F.4th 98, 106 (2d Cir. 2022)).
Plaintiff alleges that Defendants confined Plaintiff without a warrant, without probable
cause, and without his consent. 	Dkt. No. 2 at ¶¶ 195-198. 	County Defendants contend that
Plaintiff’s allegations fail to demonstrate that Defendant Shannon lacked probable cause to arrest
Plaintiff and that Plaintiff fails to allege that Defendants Stemmler, Giardino, and Fake were
personally involved in Plaintiff’s arrest. See Dkt. No. 10-1 at 16-17.
The Court agrees with the County Defendants. “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.” Adams v.
City of Syracuse, No. 21-cv-650 (AMN/MJK), 2025 WL 2772081, at *16 (N.D.N.Y. Sept. 29,
2025) (quoting United States v. Hawkins, 37 F.4th 854, 858 (2d Cir. 2022)).
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Here, the Court finds that Defendant Shannon had probable cause to arrest Plaintiff on
August 10, 2022 for criminal impersonation of a law enforcement officer based on Defendant
Vannie’s sworn deposition testimony. 	See Dkt. Nos. 2-11, 2-14. 	When an officer receives his
information from a putative victim or eyewitness, probable cause is established “unless the
circumstances raise doubt as to the person’s veracity.” Fabrikant v. French, 691 F.3d 193, 216 (2d
Cir. 2012) (citation omitted); see also Smith v. City of Utica, No. 13-cv-767, 2015 WL 4366230,
at *2 (N.D.N.Y. July 16, 2015) (noting that “[i]t is well-established that a law enforcement official
has probable cause to arrest if he received his information from some person, normally the putative
victim or eyewitness” (citations omitted)). 	According to the Complaint and its attachments,
Defendant Vannie gave a sworn deposition to Defendant Shannon, during which she specifically
stated that she believed that Plaintiff was functioning as a law enforcement official because
Plaintiff told her that he was “with the Sherriff’s” and showed her his badge, which “looked like
any normal badge that a police officer would have.” See Dkt. No. 2 at ¶ 108; see also Dkt. No. 2-
11 at 18:11-12, 26:18-23. Plaintiff also does not allege that he was a current member of the FCSD.
Thus, Defendant Shannon had probable cause to arrest Plaintiff for criminal impersonation of a
law enforcement officer.
With respect to Defendants Stemmler, Giardino, and Fake, Plaintiff fails to allege that these
Defendants directly participated in Plaintiff’s arrest. “A plaintiff cannot sustain a false arrest claim
under New York law where there is no allegation that the defendant personally participated in the
arrest or detention of the plaintiff.” 	Kweller v. Cnty. of Broome, No. 24-cv-1328, 2025 WL
3280745, at *5 (N.D.N.Y. Nov. 25, 2025) (collecting cases) (internal quotation marks and citations
omitted). 	In opposition, Plaintiff asserts in a conclusory fashion that Defendants Stemmler,
Giardino, and Fake “participated in the unlawful conduct[]; and/or approved of it, and/or created
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the policies, practices, and customs that gave rise to the constitutional deprivations suffered by
[Plaintiff].” 	Dkt. No. 19 at 23. 	Such general and conclusory assertions are insufficient to
demonstrate Defendants’ personal involvement. See, e.g., Daly v. Town of DeWitt, No. 18-cv-845,
2019 WL 4170162, at *5 (N.D.N.Y. Sept. 2, 2019) (finding no plausible basis to hold defendant
liable for false arrest where the complaint does not allege that defendant was an officer who arrived
at the scene after plaintiff was pulled over or that defendant took any action to cause plaintiff’s
detention or instigate the charges against her).
Accordingly, the Court dismisses Plaintiff’s false arrest claim against the County
Defendants.
D. Unlawful Search and Seizure
First, to the extent that Plaintiff’s unlawful search and seizure claim is predicated on the
seizure of his person based on his August 10, 2022 arrest, the Court dismisses that claim as
duplicative of his false arrest claim. See Parkinson v. Town of Niskayuna, No. 22-cv-70, 2023 WL
8574309, at *4 (N.D.N.Y. Dec. 11, 2023) (“To the extent Plaintiff premises his Fourth Amendment
claim on the seizure of his person, such a claim is dismissed because it is tantamount to a claim
for false arrest[.]”); see also Lozada v. Weilminster, 92 F. Supp. 3d 76, 98 (E.D.N.Y. 2015) (finding
that plaintiff’s unlawful seizure claim is subsumed by her other Fourth Amendment claims because
plaintiff “does not allege a search or seizure beyond the actions supporting her false arrest claim”).
To the extent that Plaintiff’s unlawful search and seizure claim is predicated on the seizure
of his property, the Court also dismisses that claim. Plaintiff alleges that Defendant Shannon seized
his Town of Perth Dog Control Officer badge without a search warrant and without Plaintiff’s
consent during his arrest on August 10, 2022. See Dkt. No. 2 at ¶ 174. County Defendants argue
that because Defendant Shannon had probable cause to arrest Plaintiff on August 10, 2022, and
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because Plaintiff was subsequently prosecuted for criminal impersonation after Plaintiff showed
Defendant Vannie his badge, Plaintiff’s badge was seized as evidence of a crime. Dkt. No. 10-1
at 13. 	In opposition, Plaintiff argues that the seizure of his badge was unreasonable because
Defendant Shannon “invaded” Plaintiff’s home without a warrant, without exigency, and without
Plaintiff’s consent and searched and seized Plaintiff’s property within the confines of his home.
See Dkt. No. 19 at 18.
The Court agrees with the County Defendants. As a preliminary matter, the Complaint
does not plausibly allege any facts suggesting that Defendant Shannon entered Plaintiff’s home to
seize Plaintiff’s badge, or at any time during Plaintiff’s arrest. 	According to the case report
attached to the Complaint, upon Defendant Shannon’s arrival at Plaintiff’s residence, Plaintiff was
sitting in his garage. 	See Dkt. No 2-13 at 4. 	After conducting his interview of Plaintiff and
concluding that Plaintiff “would need to come with [him] to retrieve an [a]ppearance [t]icket for
[f]alse impersonation,” Defendant Shannon gave Plaintiff the opportunity to drop all items on his
person in his garage. Id. Plaintiff proceeded to empty all items off his person and put them on his
motorcycle in his garage. 	Id. 	Defendant Shannon subsequently placed Plaintiff under arrest,
collected his badge as evidence, and then transported him to the Fulton County Sheriff’s Office
for processing. See id.
Here, as explained in supra Section IV(C), there was probable cause to arrest Plaintiff for
impersonating an officer. “A police officer may seize personal effects discovered during a search
incident to arrest if the officer[] find[s] that these are evidence of criminal conduct, even if
unrelated to that for which a suspect had been arrested.” Henton v. City of New York, No. 24-cv-
2270, 2025 WL 1907004, at *4 (E.D.N.Y. July 10, 2025) (citing, inter alia, United States v.
Robinson, 414 U.S. 218, 236 (1973)). 	Thus, Defendant Shannon lawfully seized Plaintiff’s
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personal property, including his badge, incident to arrest, without violating Plaintiff’s Fourth
Amendment rights. See Henton, 2025 WL 1907004, at *4-5. Moreover, “the government’s failure
to return lawfully seized property is not an unreasonable seizure under the Fourth Amendment.”
Harding v. Gould, No. 22-cv-6285, 2024 WL 3742688, at *7 (S.D.N.Y. Aug. 9, 2024) (citing Shaul
v. Cherry Valley-Springfield Cent. Sch. Dist., 363 F.3d 177, 187 (2d Cir. 2004) (“Where, as in this
case, an initial seizure of property was reasonable, defendants’ failure to return the items does not,
by itself, state a separate Fourth Amendment claim of unreasonable seizure.”)).
Accordingly, the Court dismisses Plaintiff’s unlawful search and seizure claim.
E. Excessive Force
“When assessing whether force is unreasonable under the Fourth Amendment, a court
should pay ‘careful attention to the facts and circumstances of each particular case, including the
severity of the crime at issue, whether the suspect poses an immediate threat to the safety of the
officers or others, and whether he is actively resisting arrest or attempting to evade arrest by
flight.’” Baptist v. Wheeler, No. 24-cv-1478 (AMN/TWD), 2025 WL 3120480, at *5 (N.D.N.Y.
Nov. 7, 2025) (quoting Soares v. Connecticut, 8 F.3d 917, 921 (2d Cir. 1993)). 	“In doing so, a
court takes the perspective of ‘a reasonable officer on the scene’ rather than that of hindsight.” Id.
(quoting Brown v. City of New York, 798 F.3d 94, 100 (2d Cir. 2015)).
“The police are not required to utilize the least amount of force possible to place someone
into custody.” Figuereo, 2025 WL 460784, at *8 (citation omitted). Moreover, “[c]ourts in this
Circuit regularly hold that a plaintiff must have sustained some injury to maintain a claim of
excessive force.” Pesola v. City of New York, No. 15-cv-1917, 2016 WL 1267797, at *7 (S.D.N.Y.
Mar. 30, 2016) (collecting cases). However, regardless of the amount of force, “a show of force
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by an officer that is overly disproportionate to the risk of harm may support a claim for excessive
force.” Figuereo, 2025 WL 460784, at *8 (citation omitted).
1. 	Defendant Shannon
County Defendants contend that Plaintiff’s excessive force claim against Defendant
Shannon must be dismissed because Plaintiff failed to allege facts plausibly suggesting that
Defendant Shannon used beyond de minimis force. See Dkt. No. 10-1 at 15. Plaintiff argues that
the Complaint sufficiently alleges plausible facts in support of his excessive force claim. Dkt. No.
19 at 19-21.
The Court agrees with Plaintiff. Plaintiff alleges that, despite complying with Defendant
Shannon’s orders, Defendant Shannon, knowing that Plaintiff had an injured left shoulder,
“violently grabbed [Plaintiff’s] left shoulder and started to shake and squeeze” Plaintiff while
“screaming, ‘stop resisting, stop resisting!’” Dkt. No. 2 at ¶¶ 182-183. Plaintiff further alleges
that he told Defendant Shannon that he was hurting him, but Defendant Shannon “continued to
scream and shake [Plaintiff],” which “exacerbated” Plaintiff’s existing shoulder injury and caused
Plaintiff “significantly severe physical, mental, and emotional pain” for which he is still receiving
medical treatment, more than two years after the incident. 	Id. at ¶¶ 182, 188. Accepting these
allegations as true, the Complaint plausibly alleges that Defendant Shannon used excessive force
in the course of arresting Plaintiff. See, e.g., Goonewardena v. Spinelli, No. 15-cv-5239, 2017 WL
9482109, at *13 (E.D.N.Y. Aug. 14, 2017) (recommending that excessive force claim against
officer proceed where plaintiff alleged that officer’s actions “resulted in plaintiff screaming for
help in pain and caused injuries restricting plaintiff’s ability to lift heavy objects for two months”
(internal quotation marks and citations omitted)), report and recommendation adopted, 2017 WL
4280549 (E.D.N.Y. Sept. 26, 2017).
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Moreover, even in the context of an arrest, “[b]ecause of its intensely factual nature, the
question of whether the use of force was reasonable under the circumstances is generally best left
for a jury to decide.” Oakley v. Dolan, 980 F.3d 279, 284 (2d Cir. 2020) (citation omitted). “These
principles apply with even greater force at the motion to dismiss stage, where a court must assume
the truth of the plaintiff’s allegations and avoid resolving factual disputes.” Id.; see also Phillips
v. City of Middletown, No. 17-cv-5307, 2018 WL 4572971, at *3 (S.D.N.Y. Sept. 24, 2018) (“When
courts grant motions to dismiss an excessive force claim, it is because the force used was
objectively reasonable as a matter of law.” (citation omitted)).
Thus, after drawing all reasonable inferences in Plaintiff’s favor and taking into account
the totality of the circumstances of his arrest, the Court denies County Defendants’ motion to
dismiss Plaintiff’s excessive force claim against Defendant Shannon.4
2. 	Defendants Giardino, Stemmler, and Fake
“It is well-settled that, to establish a defendant’s individual liability in a suit brought under
Section 1983, a plaintiff must show ‘the defendant’s personal involvement in the alleged
constitutional deprivation.’” Enders v. Boone, 658 F. Supp. 3d 70, 90 (N.D.N.Y. 2023) (quoting
Grullon v. City of New Haven, 720 F.3d 133, 138 (2d Cir. 2013) (citations omitted)), aff’d sub
4 In the alternative, County Defendants contend that Defendant Shannon is entitled to qualified
immunity. See Dkt. No. 10-1 at 24. “[A]ny adjudication as to the applicability of the qualified
immunity defense would be premature at this juncture, since resolution of qualified immunity
depends on the determination of certain factual questions that cannot be answered at this stage of
the litigation.” Keir v. Donaldson, No. 25-cv-542, 2025 WL 3442904, at *14 (N.D.N.Y. Dec. 1,
2025) (internal quotation marks, citation, and brackets omitted); see also O’Brien v. City of
Syracuse, No. 22-cv-948, 2023 WL 6066036, at *14 (N.D.N.Y. Sept. 18, 2023) (noting that “[a]
defendant asserting a qualified immunity defense on a motion to dismiss . . . ‘faces a formidable
hurdle and is usually not successful,’” as such defense “‘will succeed only where entitlement to
qualified immunity can be established based solely on facts appearing on the face of the
complaint’” (quoting Barnett v. Mount Vernon Police Dept., 523 F. App’x 811, 813 (2d Cir. 2013)
(alterations omitted)).
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nom. Siano Enders v. Boone, No. 23-823, 2024 WL 3518058 (2d Cir. July 24, 2024). A plaintiff
must plead “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)
(quoting Iqbal, 556 U.S. at 676). 	“Pursuant to this requirement, a Section 1983 plaintiff must
allege a tangible connection between the acts of the defendant and the injuries suffered.” Keyes v.
Venettozzi, No. 18-cv-372, 2022 WL 991402, at *6 (N.D.N.Y. Mar. 31, 2022) (internal quotation
marks and citation omitted). 	In other words, “the actions or omissions attributable to each
defendant must be the proximate cause of the injuries and consequent damages that the plaintiff
sustained.” Durr v. Slator, 558 F. Supp. 3d 1, 20 (N.D.N.Y. 2021) (citations omitted).
“Personal involvement of a supervisor may be established by direct participation in a
constitutional violation or by showing that he created a policy or custom under which the violation
occurred.” 	Rindgen v. Cnty. of Broome, No. 24-cv-1325, 2025 WL 2772080, at *17 (N.D.N.Y.
Sept. 29, 2025) (internal quotation marks and citation omitted); see also Sanchez v. Nassau Cnty.,
662 F. Supp. 3d 369, 416 (E.D.N.Y. 2023) (“Post-Tangreti, district courts in the Circuit have
determined that personal involvement still may be established for a supervisory defendant if he or
she ‘created a policy or custom under which unconstitutional practices occurred, or allowed the
continuance of such a policy or custom.’”) (collecting cases). However, “conclusory allegations
that a defendant was involved in the creation and enforcement of unconstitutional policies cannot
sustain a claim of personal involvement.” Rindgen, 2025 WL 2772080, at *17 (citation omitted).
Thus, Plaintiff must allege facts suggesting that Defendants planned, directed, or
authorized the excessive force against Plaintiff himself, or that they created or maintained policies
which led to the use of excessive force against Plaintiff.
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With respect to Defendant Giardino, Plaintiff alleges that Defendant Giardino “delegated
authority to establish the policies, practices, supervision, implementation and conduct of all FCSD
employees and agents.” 	Dkt. No. 2 at ¶ 16. These allegations are unsupported by any specific
facts, and thus insufficient to plausibly allege Defendant Giardino’s personal involvement with
respect to the alleged excessive force against Plaintiff. See, e.g., Baumeister v. Erie Cnty., No. 23-
cv-1150, 2024 WL 4362311, at *10 (W.D.N.Y. Sept. 30, 2024) (finding that vague and conclusory
allegations that sheriff and supervisory officer defendants were inter alia “responsible for the
supervision, administration, policy practices, procedures, and customs of th[eir] offices,” and “the
pervasive and entrenched pattern of misconduct . . . relating to utilizing force without justification,
including the use of excessive force in effectuating arrests,” are insufficient to establish personal
involvement).
Plaintiff further alleges that after his arrest on August 10, 2022, while Defendant Shannon
was transporting him home, Defendant Giardino pulled up next to Defendant Shannon’s vehicle,
and the two smiled at each other. 	Dkt. No. 2 at ¶ 128. 	This allegation is also insufficient to
plausibly allege Defendant Giardino’s personal involvement. Defendant Giardino was not present
during the alleged incident, and, even accepting Plaintiff’s allegations as true, an allegation that
Defendants Giardino and Shannon smiled at one another, without more, is insufficient to
demonstrate that Defendant Giardino was personally involved in Defendant Shannon’s alleged use
of excessive force. See, e.g., Green v. Garcia, No. 18-cv-1745, 2020 WL 1467359, at *5 (S.D.N.Y.
Mar. 25, 2020) (dismissing excessive force claims against certain officers because plaintiff failed
to plead that “each of them was individually present during the alleged assault”).
Plaintiff also fails to allege that Defendants Stemmler and Fake were personally involved
in the alleged use of excessive force. Plaintiff fails to allege that Defendants Stemmler and Fake
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participated in the alleged use of excessive force or were responsible for a policy or custom which
led to the alleged use of excessive force. 	Beyond unparticularized allegations against all
Defendants, with respect to Plaintiff’s excessive force claims, the Complaint alleges, at most, that
Defendant Fake supplied a false statement to Defendant Shannon that Plaintiff had a prior history
of impersonating law enforcement, see Dkt No. 2 at ¶ 119, and Defendant Stemmler instructed
Defendant Shannon to take a written statement from Defendant Vannie, see id. at ¶ 118, both of
which supported Defendant Shannon’s arrest and prosecution of Plaintiff. Even granting Plaintiff
all favorable inferences, the Court cannot find that Plaintiff plausibly alleges that Defendants
Stemmler and Fake were personally involved in any alleged use of excessive force. 	See, e.g.,
Powell v. City of Jamestown, No. 21-cv-721, 2022 WL 1913581, at *10 (W.D.N.Y. June 3, 2022)
(dismissing excessive force claims against chief, sheriff, and undersheriff because plaintiff failed
to allege that they personally used any physical force against him, or that they were even present
during the alleged incidents).
Accordingly, the Court dismisses Plaintiff’s excessive force claim against Defendants
Giardino, Stemmler, and Fake.
F. 	Malicious Abuse of Process
Plaintiff also asserts a claim for abuse of process. See Dkt. No. 2 at ¶¶ 200-205. Courts
look to state law for the elements of a Section 1983 claim based on malicious abuse of process.
Hoyos v. City of New York, 999 F. Supp. 2d 375, 391 (E.D.N.Y. 2013) (citing Savino v. City of New
York, 331 F.3d 63, 76-77 (2d Cir. 2003)). In New York, in order to prevail on a claim for malicious
abuse of process, a plaintiff must show that the defendant “(1) employ[ed] regularly issued legal
process to compel performance or forbearance of some act (2) with intent to do harm without
excuse or justification, and (3) in order to obtain a collateral objective that is outside legitimate
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ends of process.” Wagner, 518 F. Supp. 3d at 627 (quoting Savino, 331 F.3d at 76). “The third
element, which forms the crux of this claim, requires that the defendants had an improper purpose
in instigating the action, as opposed to merely a malicious motive.” Thorpe v. Delta Air Lines,
Inc., No. 24-cv-1089, 2024 WL 5007423, at *8 (E.D.N.Y. Dec. 6, 2024) (internal quotation marks
and citations omitted) (emphasis in original), aff’d, No. 25-58, 2025 WL 2868136 (2d Cir. Oct. 9,
2025). “The same elements apply to a [Section] 1983 claim for malicious abuse of process, but
the plaintiff must also show the deprivation of a constitutional right.” 	Rivera v. Jahmi, 801 F.
Supp. 3d 129, 161 (E.D.N.Y. 2025) (internal quotation marks and citation omitted).
Here, regarding the third element, i.e., alleging a collateral objective, Plaintiff fails to state
any facts, beyond conclusory allegations, that County Defendants pursued his prosecution for any
improper purpose. See Dkt. No. 2 at ¶¶ 201-204. In opposition, Plaintiff contends that Defendants
“employed the . . . process of [a] felony complaint . . . to force [P]laintiff out of his job as the Dog
Control [O]fficer.” Dkt. No. 19 at 25. But, in addition to being conclusory, this argument goes to
Defendants’ motive, and thus, does not satisfy the collateral objective requirement. See LoPorto
v. Cnty. of Rensselaer, No. 15-cv-866, 2018 WL 4565768, at *14 (N.D.N.Y. Sept. 24, 2018) (noting
that a malicious motive alone does not give rise to a cause of action for abuse of process and that
plaintiff must instead claim that defendants “aimed to achieve a collateral purpose beyond or in
addition to [plaintiff’s] criminal prosecution”); see also Savino, 331 F.3d at 77-78 (finding that the
plaintiff’s allegation that an investigation of him “was solely motivated to seek vindication for the
City’s great political embarrassment and humiliation for allowing plaintiff to be the highest paid
city employee” went just to the defendants’ motive and thus fell short of creating liability); Zappin,
2024 WL 3084015, at *2 (holding that allegations “suggest[ing] only that [defendant] acted
maliciously in instigating the prosecution” are insufficient to state a claim of abuse of process).
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Accordingly, the Court dismisses Plaintiff’s abuse of process claim.5
G. Conspiracy Claims
“To prove a [Section] 1983 conspiracy, a plaintiff must show: (1) an agreement between
two or more state actors or between a state actor and a private entity; (2) to act in concert to inflict
an unconstitutional injury; and (3) an overt act done in furtherance of that goal causing damages.”
Butler v. Hesch, 286 F. Supp. 3d 337, 363 (N.D.N.Y. 2018) (citations omitted); see also
Ciambriello v. Cnty. of Nassau, 292 F.3d 307, 324-25 (2d Cir. 2002). To state a conspiracy claim
under Section 1985(3), a plaintiff must allege “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.” Dolan v. Connolly, 794 F.3d 290, 296 (2d Cir. 2015) (quoting
Britt v. Garcia, 457 F.3d 264, 269 n.4 (2d Cir. 2006) and citing 42 U.S.C. § 1985(3)). 	Under
Section 1985(3), the conspiracy must also be “motivated by some racial or perhaps otherwise class-
based, invidious discriminatory animus.” Id. (quoting Cine SK8, Inc. v. Town of Henrietta, 507
F.3d 778, 791 (2d Cir. 2007)).
Here, the Complaint fails to allege a plausible conspiracy claim under either Section 1983
or Section 1985(3). Even read in the light most favorable to Plaintiff, the Complaint contains only
conclusory allegations of a conspiracy. Plaintiff alleges that (i) Defendants “conspired and worked
in concert to carry out the unlawful actions alleged in th[e] [C]omplaint”; (ii) “[t]he unlawful
actions of each of the [D]efendants was a part and parcel of an agreement and conspiracy between
5 Because the Court dismisses Plaintiff’s abuse of process claim, the Court does not reach the issue
of whether such claim is time-barred, or whether Plaintiff has sufficiently alleged each Defendant’s
personal involvement.
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the [D]efendants to maliciously violate [P]laintiff’s constitutional rights”; and (iii) “[e]ach of the
[D]efendants was aware, agreed to, approved of, and/or engaged in one or more of the overt acts
in furtherance of the conspiracy.” Dkt. No. 2 at ¶¶ 207-209, 213, 217-218. “Vague and conclusory
allegations that defendants entered into an unlawful agreement will not suffice to state a conspiracy
claim under either [Section] 1983 or [Section] 1985(3).” 	Brill, 799 F. Supp. 3d at 82 (quoting
Trombley v. O’Neill, 929 F. Supp. 2d 81, 97 (N.D.N.Y. 2013) and citing Emmerling v. Town of
Richmond, 434 F. App’x 10, 12 (2d Cir. 2011)). Plaintiff does not provide any factual basis that
supports a meeting of the minds between Defendants indicating that they entered into an express
or tacit agreement to achieve some unlawful end. See, e.g., Brill, 799 F. Supp. 3d at 83 (finding
that plaintiff does not “allege any specific facts regarding a ‘meeting of the minds’ among any or
all [d]efendants, nor does [p]laintiff set forth how [d]efendants acted in concert with one another
to violate [p]laintiff’s rights”).
Moreover, regarding Plaintiff’s Section 1985(3) conspiracy claim, the Complaint fails to
plausibly allege that Defendants were motivated by racial animus. 	Plaintiff’s allegation that
Defendant Shannon, who is black, “was sent, encouraged, and emboldened by the agreement and
actions of the other [D]efendants” to deprive Plaintiff, who is white, of his equal protection rights,
is conclusory, and thus insufficient to plausibly suggest that Defendants were motivated by
Plaintiff’s race. See Dkt. No. 2 at ¶ 215; see also Favourite v. 55 Halley St., Inc., 381 F. Supp. 3d
266, 284 (S.D.N.Y. 2019) (dismissing Section 1985(3) claim because plaintiff, inter alia, has not
shown that racial animus accounts for defendants’ conduct). 	Plaintiff also has not alleged
membership in a protected class under Section 1985(3). To the extent that Plaintiff claims that
Defendants were motivated by class-based discriminatory animus due to Plaintiff’s employment
as a dog control officer, see Dkt. No. 19 at 28, dog control officers are not a protected class because
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they “plainly do not possess the type of inherited or immutable characteristics sufficient to satisfy
the class-based animus requirement.” Dolan, 794 F.3d at 296; cf. Berenson v. Biden, 791 F. Supp.
3d 398, 423-24 (S.D.N.Y. 2025) (noting that courts in this Circuit have found protected classes to
include political affiliation, gender, religion, and disability, but not vaccination status, in the
context of Section 1985(3)).
Accordingly, the Court grants County Defendants’ motion to dismiss Plaintiff’s Section
1983 and Section 1985(3) conspiracy claims.
H. Monell Claim
Lastly, Plaintiff’s Section 1983 claims against Fulton County must also be dismissed
because Plaintiff has not plausibly pled a Monell claim.
Municipalities are not liable under Section 1983 “unless action pursuant to official
municipal policy of some nature causes a constitutional tort.” Glassman v. City of New York, 557
F. App’x 97, 98 (2d Cir. 2014) (quoting Monell v. Dep’t of Soc. Servs., 436 U.S. 658, 691 (1978)).
“To bring a claim for municipal liability under Monell, [a plaintiff] must plausibly allege the
existence of an official policy or custom that caused him to be denied a constitutional right.”
Thomas v. Town of Lloyd, 711 F. Supp. 3d 122, 138 (N.D.N.Y. 2024) (citations omitted). “Monell
liability may be established through: (1) a policy formally adopted and endorsed by the
municipality; (2) actions taken by policymaking officials that caused the particular deprivation
alleged; (3) practices by subordinate officials that are not expressly authorized but are so
widespread and consistent that policymakers must have been aware of them; or (4) a failure by
policymakers to train or supervise that amounts to deliberate indifference to the rights of those
who come into contact with the inadequately trained or supervised municipal employees.”
Crawley v. City of Syracuse, 496 F. Supp. 3d 718, 729 (N.D.N.Y. 2020) (internal quotation marks
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omitted) (citing Deferio v. City of Syracuse, 770 F. App’x 587, 589-90 (2d Cir. 2019) (summary
order)). 	“Boilerplate statements that county employees were acting in accord with a municipal
policy, with no facts to support those statements, are not sufficient to support a Monell claim.”
Forrest v. Cnty. of Greene, 676 F. Supp. 3d 69, 76 (N.D.N.Y. 2023) (internal quotation marks and
citation omitted).
Here, Plaintiff’s allegations are conclusory and fail to sufficiently plead a Monell claim
against Fulton County. Specifically, Plaintiff alleges that “Fulton County and its decision-making
officials instituted and carried out policies, practices, and/or customs of conducting [unlawful]
search and seizures[.]” Dkt. No. 2 at ¶ 146. However, Plaintiff fails to allege any specific facts
from which any policy, practice, or custom could be inferred that could support a plausible Monell
claim. See, e.g., Dougal v. Lewicki, No. 23-cv-1167, 2023 WL 6430586, at *10 (N.D.N.Y. Oct. 3,
2023) (recommending dismissal of Monell claims because plaintiff “does not include any
allegations in his complaint concerning municipal conduct that states a Monell claim[,] . . . does
not allege what actions were taken by the County, or by its employees[,] [or] which [actions] the
County knew about”), report and recommendation adopted, 2023 WL 7013384 (N.D.N.Y. Oct. 25,
2023).
In opposition, Plaintiff contends that Defendant Giardino, as “the final policymaker” for
law enforcement in Fulton County, “established unconstitutional policies, practices and/or
customs,” as evidenced by Defendant Giardino, on at least one previous occasion, ordering his
deputies to break into a home without a warrant to seize an unlicensed dog that was locked in a
home without food or water for one week. 	Dkt. No. 19 at 32; see also Dkt. No. 2 at ¶¶ 32-39.
Even assuming that such act was unlawful, a single instance of alleged misconduct is insufficient
to infer a policy or custom under Monell. See Taranto v. Putnam Cnty., No. 21-cv-2455, 2023 WL
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6318280, at *16 (S.D.N.Y. Sept. 28, 2023) (noting that “a custom or policy cannot be shown by
pointing to a single instance of unconstitutional conduct by a mere employee of the municipality”
(citations omitted)); see also Boddie v. City of New York, No. 15-cv-4275, 2016 WL 1466555, at
*3 (S.D.N.Y. Apr. 13, 2016) (holding that pleading only “two or three instances” of a constitutional
violation falls “far short of showing a policy, custom, or usage”). 	Accordingly, Plaintiff’s
conclusory allegations are insufficient to support a Monell claim against Fulton County.
For these reasons, the Court dismisses Plaintiff’s claims against Fulton County.
V. 	CONCLUSION
Accordingly, the Court hereby
ORDERS that the County Defendants’ motion to dismiss, Dkt. No. 10, is GRANTED in
part and DENIED in part, and the Court further
ORDERS that Plaintiff’s excessive force claim shall proceed against Defendant Shannon;
and the Court further
ORDERS that the remainder of Plaintiff’s claims against the County Defendants are
DISMISSED in accordance with this Memorandum-Decision & 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.
Dated: March 25, 2026
Albany, New York
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