Gidea v. OWEGO Police Department et al

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK
_____________________________________________
ANDREW B. GIDEA,
Plaintiff,
3:25-CV-0103
v. 	(ECC/ML)
OWEGO POLICE DEPARTMENT; VILL.
OF OWEGO; OFFICER STARZEK, Owego
Police Officer; OFFICER PARKER, Owego
Police Officer; LILLIAN REARDON, ESQ.,
Assistant District Attorney; and KYLE
FLEMING, Dog Control Officer,
Defendants.
_____________________________________________
APPEARANCES: 	OF COUNSEL:
ANDREW B. GIDEA
Plaintiff, Pro Se
205b South Corn Street
Ithaca, New York 14850
MIROSLAV LOVRIC, United States Magistrate Judge
ORDER and REPORT-RECOMMENDATION
I. 	BACKGROUND
A. 	Procedural History
Plaintiff Andrew B. Gidea (“Plaintiff”) commenced this civil rights action pro se by the
filing of a complaint alleging that his rights were violated by Defendants Owego Police
Department, Village of Owego, Officer Starzek, Officer Parker, Lillian Reardon, Esq., and Kyle
Fleming (collectively “Defendants”). (Dkt. No. 1.) Plaintiff did not pay the filing fee for this
action and seeks leave to proceed in forma pauperis (“IFP”). (Dkt. No. 2.)
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B. 	Complaint
Construed as liberally1 as possible, the Complaint alleges that Plaintiff’s civil rights were
violated by Defendants. (See generally Dkt. No. 1.)
The Complaint alleges that on September 27, 2024, Defendants Starzek and Parker
entered “a dwelling by opening a locked door without a search warrant or probable cause” which
included Plaintiff being detained and the seizure of Plaintiff’s “emotional support” dog. (Dkt.
No. 1 at 5.) Plaintiff asserts that Defendant Reardon was “attempting to hold a hearing [on]
January 8, 2025[,] . . . without serving process on [ ] Plaintiff.” (Id.) Plaintiff appears to object
to the fact that the hearing was scheduled to be held virtually via Microsoft Teams. (Id.)
Plaintiff alleges that he was struck by a car on October 11, 2024, and he has been unable
to work since the accident because of the loss of his emotional support animal. (Dkt. No. 1 at 6.)
Notwithstanding this allegation, Plaintiff also alleges that “[t]his has been going on since I
became a volunteer firefighter in October of 2022.” (Id.)
Based on these factual allegations, Plaintiff appears to assert the following four claims:
(1) a claim of unlawful search and seizure pursuant to the Fourth Amendment and 42 U.S.C. §
1983; (2) a claim pursuant to Fed. R. Crim. P. 43; (3) a claim pursuant to 18 U.S.C. § 1001; and
(4) a claim pursuant to 18 U.S.C. § 641. (Dkt. No. 1 at 2.) As relief, Plaintiff seeks
$40,000,000.00 in damages, a “restraining order and a contempt of court charge for any party
that claims to have a power of attorney over [ ] Plaintiff,” and “a writ of execution for the money
so ordered.” (Dkt. No. 1 at 6.)
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)).
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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
III. 	LEGAL STANDARDS
“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 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
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.
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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).
“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
A. 	Claims Against Defendant Owego 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 . . . department does not have the capacity
to be sued as an entity separate from the municipality in which it is located.” White v. Syracuse
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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 Plaintiff’s claims against Defendant Owego Police
Department be dismissed because it is not an entity that is amenable to suit.
B. 	Claims Against Defendant Village of Owego
“[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 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.”
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Deferio v. City of Syracuse, 770 F. App’x 587, 589-90 (2d Cir. 2019) (internal quotations,
citations, and brackets omitted).
Here, Plaintiff essentially complains of one discrete incident during which Defendants
Starzek and Parker—who are employed by Defendant Village of Owego as police officers—did
not act properly. (Dkt. No. 1 at 4-5.) There is no indication that Plaintiff can assert a policy or
custom, which would support municipal liability based on these facts. See Flagg v. NYS Division
of Parole, 19-CV-0886, 2019 WL 5002215, at *5 (N.D.N.Y. Aug. 15, 2019) (Baxter, M.J.)
(citing DeCarlo v. Fry, 141 F.3d 56, 61 (2d Cir. 1998)) (“A single incident, particularly if it
involved individuals below the policy-making level is insufficient to state a Monell claim.”),
report and recommendation adopted, 2019 WL 4963112 (N.D.N.Y. Oct. 8, 2019) (McAvoy, J.);
Wright v. City of Syracuse, 10-CV-0661, 2014 WL 1293527, at *15 (N.D.N.Y. Mar. 31, 2014)
(Suddaby, J.) (“Isolated acts of municipal employees are typically not sufficient to establish
municipal liability.”). 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 Defendant Village of Owego.
As a result, I recommend that Plaintiff's claims against Defendant Village of Owego be
dismissed for failure to state a claim upon which relief may be granted.
C. 	Claims Against Defendant Reardon4
“Prosecutors sued under § 1983 enjoy absolute immunity ‘from claims for damages
arising out of prosecutorial duties that are intimately associated with the judicial phase of the
4 	Plaintiff does not appear to include any request for prospective injunctive relief. See
Avitabile v. Beach, 277 F. Supp. 3d 326, 332 (N.D.N.Y. 2017) (Hurd, J.) (citations omitted)
(holding that although prosecutorial immunity bars Section 1983 claims for damages, an official-
capacity claim for prospective injunctive relief may proceed to remedy an alleged “ongoing
violation of federal constitutional law.”).
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criminal process.’” Joyner v. Cnty. of Cayuga, 20-CV-0060, 2020 WL 1904088, at *9
(N.D.N.Y. Apr. 17, 2020) (D’Agostino, J.) (quoting Doe v. Phillips, 81 F.3d 1204, 1209 (2d Cir.
1996)). Prosecutorial immunity from § 1983 liability is broadly defined, covering “virtually all
acts, regardless of motivation, associated with [the prosecutor’s] function as an advocate.” Hill
v. City of New York, 45 F.3d 653, 661 (2d Cir. 1995) (quoting Dory v. Ryan, 25 F.3d 81, 83 (2d
Cir. 1994)). This includes “the decision to bring charges against a defendant, presenting
evidence to a grand jury, and the evaluation of evidence prior to trial.” Moye v. City of New
York, 11-CV-0316, 2012 WL 2569085, at *5 (S.D.N.Y. July 3, 2012) (quoting Johnson v. City of
New York, 00-CV-3626, 2000 WL 1335865, at *2 (S.D.N.Y. Sept. 15, 2000)). Immunity even
extends to “the falsification of evidence and the coercion of witnesses[;]” “the knowing use of
perjured testimony[;]” “the deliberate withholding of exculpatory information[;]” the “making
[of] false or defamatory statements in judicial proceedings[;]” and the “conspiring to present
false evidence at a criminal trial[.]” Taylor v. Kavanagh, 640 F.2d 450, 452 (2d Cir. 1981)
(citing Lee v. Willins, 617 F.2d 320, 321-22 (2d Cir. 1980)); Imbler v. Pachtman, 424 U.S. 409,
431 n.34 (1976); Burns v. Reed, 500 U.S. 478, 490 (1991); Dory v. Ryan, 25 F.3d 81, 83 (2d Cir.
1994).
The Complaint appears to allege that Defendant Reardon, as Assistant District Attorney,
was scheduled to participate in a virtual hearing conducted by the Village of Owego Court and
Plaintiff believes that the hearing should be held in-person. (Dkt. No. 1 at 4-5.) Based on these
allegations, Defendant Reardon is entitled to prosecutorial immunity for the actions she takes in
her role a s prosecutor. See Shmueli v. City of New York, 424 F.3d 231, 236 (2d Cir. 2005)
(citation and internal quotation marks omitted) (collecting cases) (“It is by now well established
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that a state prosecuting attorney who acted within the scope of his duties in initiating and pursing
a criminal prosecution is immune from a civil suit for damages under § 1983.”).
To the extent that Plaintiff attempts to assert claims against Defendant Reardon in her
official capacity, as an employee of the Tioga County District Attorney’s Office, those claims are
subject to dismissal pursuant to the Eleventh Amendment. See D'Alessandro v. City of New
York, 713 F. App'x 1, 8 (2d Cir. 2017) (“[I]f a district attorney or an assistant district attorney
acts as a prosecutor, she is an agent of the state, and therefore immune from suit in her official
capacity.”); Rich v. New York, 21-CV-3835, 2022 WL 992885, at *5 n.4 (S.D.N.Y. Mar. 31,
2022) (“[A]ny claims Plaintiff may raise against the DA Defendants in their ‘official capacity’
would be precluded by immunity under the Eleventh Amendment.”).
As a result, I recommend that Plaintiff’s claims against Defendant Reardon be dismissed
based on the doctrine of prosecutorial and sovereign immunity.
D. 	Claims Against Defendant Fleming
A careful review of the Complaint reveals that Defendant Fleming is listed in the caption
and mentioned in the list of defendants. (Dkt. No. 1 at 1, 5.) However, the Complaint fails to
allege any action or inaction on behalf of Defendant Fleming. (See generally Dkt. No. 1.)
“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) (Khan, 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).
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As a result, I recommend that Plaintiff’s claims against Defendant Fleming be dismissed
for failure to state a claim upon which relief may be granted.
E. 	Claims Against Defendants Starzek and Parker
1. 	Claims Pursuant to 18 United States Code
To the extent that Plaintiff attempts to assert claims under 18 U.S.C. §§ 1001 and 641, I
recommend that they be dismissed because they do not create any causes of action that can be
pursued by private plaintiffs.
“[A] private plaintiff cannot pursue a claim under the criminal statutes found in Title 18
of the United States Code.” Bennett v. New York State Thruway Auth., 22-CV-0337, 2024 WL
1053222, at *17 (N.D.N.Y. Mar. 11, 2024) (Hurd, J.). “It is a truism, and has been for many
decades, that in our federal system crimes are always prosecuted by the Federal Government, not
. . . by private complaints.” Conn. Action Now, Inc. v. Roberts Plating Co., 457 F.2d 81, 86-87
(2d Cir. 1972). Consequently, the Second Circuit has repeatedly held that there is no private
right of action under Title 18 of the U.S. Code. See, e.g., Storm-Eggink v. Gottfried, 409 F.
App'x 426, 427 (2d Cir. 2011) (summary order) (collecting cases); Allen v. FMR LLC, 23-CV-
0031, 2023 WL 142903, at *2 (D. Ariz. Jan. 10, 2023) (dismissing the plaintiff’s claims pursuant
to various sections of Title 18 of the United States Code—including 18 U.S.C. § 641—because
“these are criminal statutes and do not create any private right of action.”).
2. 	Claims Pursuant to the Federal Rules of Criminal Procedure
Moreover, Plaintiff’s claim alleging that Defendants violated the Federal Rules of
Criminal Procedure is also incognizable because “rules governing procedure in the federal courts
do not give rise to private causes of action.” Good v. Khosrowshahi, 296 F. App’x 676, 680
(10th Cir. 2008); see Jenkins v. Raytheon Tech. Corp., 21-CV-0406, 2023 WL 2346576, at *6
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(D. Conn. Mar. 3, 2023) (citing Rogers v. Furlow, 729 F. Supp. 657, 660 (D. Minn. 1989))
(dismissing the plaintiff’s claims pursuant to the Federal Rules of Criminal Procedure as
“improper” and noting that “the federal procedural rules [do not] create substantive rights.”);
Bronnenberg v. Eggar, 19-CV-0021, 2019 WL 13260183, at *3 (D. Wyo. Feb. 25, 2019)
(collecting cases) (dismissing the plaintiff’s “claims that the defendants violated certain rules of
criminal procedure [because those claims] are not viable causes of action in this civil lawsuit.”).
As a result, I recommend that Plaintiff’s claims pursuant to Fed. R. Crim. P. 43 be
dismissed.
3. 	Claims Pursuant to the Fourth Amendment
The Fourth Amendment guarantees “[t]he right of the people to be secure in their
persons, houses, papers, and effects, against unreasonable searches and seizures.” U.S. Const.
amend. IV. “By virtue of its incorporation through the Fourteenth Amendment’s Due Process
Clause, the Fourth Amendment is binding on states and, relevant here, municipalities such as”
the Village of Owego. Tsinberg v. City of New York, 20-CV-0749, 2021 WL 1146942, at *10
(S.D.N.Y. Mar. 25, 2021) (citing City of Ontario v. Quon, 560 U.S. 746, 750 (2010)). It “applies
in the civil context as well” as the criminal. Sodal v. Cook Cnty., 506 U.S. 56, 57 (1992)
(collecting cases).
“In analyzing a claim for unlawful search and seizure under the Fourth Amendment,
courts look to the reasonableness of the search when determining whether a search violated a
plaintiff’s constitutional rights.” Hatcher v. City of New York, 15-CV-7500, 2018 WL 1583036,
at *7 (S.D.N.Y. Mar. 27, 2018) (citing Terry v. Ohio, 392 U.S. 1, 9 (1968) (“[T]he Constitution
forbids . . . not all searches and seizures, but unreasonable searches and seizures”)).
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Here, the Complaint sets forth no facts related to the search. For example, the Complaint
fails to identify whose “dwelling” was searched, when the search occurred, what led to the
search, whether the search preceded an arrest or whether the arrest was based on the search. (See
generally Dkt. No. 1.) Hence, the undersigned has “no basis upon which to analyze the
reasonableness of the search or whether one of the exceptions to the Fourth Amendment’s
warrant requirement apply to the search at issue.” Besley v. Borden, 21-CV-6754, 2022 WL
1128556, at *3 (W.D.N.Y. Apr. 15, 2022). One exception is a search incident to an arrest.
Alexander v. City of New York, 17-CV-3170, 2019 WL 5887300, at * 5 (S.D.N.Y. Nov. 8, 2019)
(citing United States v. Diaz, 854 F.3d 197, 205 (2d Cir. 2017)) (“While a search typically
requires a warrant to be reasonable, the search incident to arrest doctrine is an exception to the
warrant requirement of the Fourth Amendment.”); see also United States v. DeJesus, 538 F.
Supp. 3d 382, 389 (S.D.N.Y. 2021) (citing Samson v. California, 547 U.S. 843, 848-49 (2006))
(“One of the ‘specifically and well-delineated exceptions’ pertains to persons who have been
paroled from a sentence of imprisonment and who, as a condition of such parole, have been
required to submit their person or property to search without a search warrant. Parolees, like
probationers, have significant[ly] diminished expectation of privacy.”). “Without knowing any
of the circumstances of the search, the Court simply cannot analyze either whether the search
without a warrant was unreasonable or whether the search was executed pursuant to one of the
exceptions to the Fourth Amendment’s warrant requirement.” Besley, 2022 WL 1128556, at *3.
As a result, I recommend that Plaintiff’s unreasonable search claim pursuant to the Fourth
Amendment and 42 U.S.C. § 1983 be dismissed for failure to state a claim upon which relief
may be granted.
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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.).5
In deference to plaintiff's pro se status, and because a more detailed pleading could
potentially cure the defects identified against Defendants (1) Village of Owego, Starzek, Parker,
and Fleming, and (2) Reardon in her individual capacity,6 the undersigned recommends
5 	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.
6 	It is unlikely that Plaintiff will be able to cure the defects associated with his claims
against Defendant Reardon in her individual capacity, which the undersigned recommends be
dismissed based on the doctrine of prosecutorial immunity. However, it is possible that with
additional or different factual allegations, the doctrine of prosecutorial immunity would not
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dismissing Plaintiff’s claims without prejudice and with leave to amend. However, the issue
with Plaintiff’s claims against Defendant Reardon in her official capacity and Defendant Owego
Police Department is substantive such that a better pleading will not cure it. As a result, I
recommend that Plaintiff’s claims against Defendant Reardon in her official capacity and
Defendant Owego Police Department be dismissed without leave to replead.
If Plaintiff chooses to file an amended complaint, he should note that 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.”).
ACCORDINGLY, it is
ORDERED that Plaintiff’s application to proceed in forma pauperis (Dkt. No. 2) is
GRANTED; and it is further respectfully
apply to Plaintiff’s claims. As a result, the undersigned recommends that Plaintiff’s claims be
dismissed without prejudice and with leave to amend.
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RECOMMENDED that Plaintiff’s Complaint (Dkt. No. 1) be DISMISSED (1) without
prejudice and with leave to amend with respect to Plaintiff’s claims against Defendants (a)
Village of Owego, Starzek, Parker, and Fleming, and (b) Reardon in her individual capacity, and
(2) without leave to amend with respect to Plaintiff’s claims against Defendant Reardon in her
official capacity and Defendant Owego Police Department; 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.7
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.8 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: December __, 2025
Binghamton, New York
7 	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).
8 	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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Adams v. City of Syracuse, Slip Copy (2025)
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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.
2. May 6, 2016
a. 941 James Street
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*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
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
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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
if she witnessed who did it ... and maybe she'll give us a
statement.” Id. at 12:39.
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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
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
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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 --
Plaintiff: No.
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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.
Det. Brimmer: -- we're trying to get to the bottom of this.
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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 (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 (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 (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; 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).
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
which a jury could find that certain
of the individual police officers
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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, ––– F.4th
––––, 2025 WL 2405451, at *6 (2d Cir. Aug. 20, 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.
1. Plaintiff's Detention at 941 James Street
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*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 (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 (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, 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, ––– F.4th ––––, 2025
WL 2405451, at *6 (“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 (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).
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
acceptable deceptive police practices as well as other specific
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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 (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
(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 (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 (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
(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.
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
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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.
Crim. Proc. Law § 70.10(1) (“[E]vidence is not legally
sufficient when corroboration required by law is absent.”).
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*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)); Werkhesier,
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, 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
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
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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 (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,
619 F.2d 196, 199 (2d Cir. 1980); then quoting Pembaur v.
City of Cincinnati, 475 U.S. 469, 481 (1986); then citing
Turpin, 619 F.2d at 199; and then quoting City of Canton v.
Harris, 489 U.S. 378, 380 (1989)).
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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 (2011)
(citing Oklahoma City v. Tuttle, 471 U.S. 808, 822-23 (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
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
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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). 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-
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, 518
N.E.2d 896, 901-02 (1987); and then quoting Kenneth
R. v. Roman Catholic Diocese of Brooklyn, 654 N.Y.S.2d
791, 793 (N.Y. App. Div. 1997)). Additionally, “[w]hen a
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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., 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. at
135 (citing Valdez v. City of New York, 960 N.E.2d 356, 592
(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 (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 (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
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 (2014)
(citation omitted).
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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, 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). 25
G. John Does 1-100
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
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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.
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
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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.
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
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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,
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). 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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Alexander v. City of New York, Not Reported in Fed. Supp. (2019)
© 2025 Thomson Reuters. No claim to original U.S. Government Works. 1
2019 WL 5887300
Only the Westlaw citation is currently available.
United States District Court, S.D. New York.
Hans George ALEXANDER, Plaintiff,
v.
CITY OF NEW YORK, et al., Defendants.
17 Civ. 3170 (LGS)
|
Signed 11/08/2019
Attorneys and Law Firms
Hans George Alexander, Bronx, NY, pro se.
Amatullah Khaliha Booth, Nakul Y. Shah, Office of the
Corporation Counsel, NYC Law Department, New York, NY,
for Defendants.
OPINION AND ORDER
LORNA G. SCHOFIELD, District Judge:
*1 Pro se Plaintiff Hans George Alexander brings this
action under 42 U.S.C. § 1983 and New York law against
Defendants the City of New York (“City”), the New York City
Police Department (“NYPD”), Defendant Sargent Ferrara
and Defendant Officers McCloud, Henriquez and Nesto
(“Individual Defendants”). Defendants move for summary
judgment on all claims under Federal Rule of Civil Procedure
56. Plaintiff did not oppose the motion. 1 For the following
reasons, summary judgment is granted in part for Defendants,
and sua sponte granted in part for Plaintiff.
I. BACKGROUND
The facts below are drawn from the record and are undisputed.
Plaintiff's claims arise from events on the evening of
September 2, 2016, in the general vicinity of Plaintiff's
residence in the Bronx. Around 8:00 p.m. that evening,
Plaintiff purchased $60 worth of marijuana and crack cocaine.
Plaintiff returned to his residence, and then left again around
9:40 p.m. to buy cigarettes and candy at a local corner store.
Plaintiff still had the crack cocaine he had purchased in
the pocket of his sweatpants. At the corner store, Plaintiff
spoke with an acquaintance known as “E,” who reminded
Plaintiff that he owed him two dollars. Plaintiff then returned
home, retrieved the two dollars and arrived outside of “E's”
residence on Union Avenue at approximately 9:48 p.m.
After “E” verbally confirmed that he was coming down
to meet Plaintiff, Plaintiff waited outside the gate at the
entrance to the building, and draped his hand -- holding
the two dollars -- over the top of the gate. As he waited,
Plaintiff accidentally dropped the two dollars over the gate,
and the money landed on the other side. “Immediately,”
Plaintiff turned around and saw Defendant Officers McCloud,
Henriquez and Nesto and Defendant Sergeant Ferrara get
out of a marked police van that was approximately seven or
eight feet from where Plaintiff stood. McCloud and Henriquez
asked Plaintiff, “What did you throw over the gate?” Plaintiff
responded, “I dropped two dollars.”
As Plaintiff was questioned, Nesto and Ferrara pulled out
flashlights and began to search the area. Because the gate was
locked, Nesto and Ferrara could not immediately get inside.
After three or four minutes, someone exited the building and
Nesto and Ferrara were able to enter and retrieve Plaintiff's
two dollars. Plaintiff asked Nesto and Ferrara to return his
money.
As Nesto and Ferrara were looking for the two dollars,
McCloud and Henriquez continued to question Plaintiff.
McCloud and Henriquez asked Plaintiff for identification and
“about guns in the neighborhood.” Plaintiff explained that
he did not have identification because he lived across the
street and had gone out for an errand. Beginning before,
and then continuing after Nesto and Ferrara found Plaintiff's
two dollars, McCloud “simultaneous[ly]” began patting down
the outside of Plaintiff's clothing and continued to ask
for identification. McCloud and Henriquez also looked in
Plaintiff's hands and poured out the contents of a bag Plaintiff
was carrying from the corner store.
*2 McCloud then asked Plaintiff what was in his pockets.
Plaintiff removed his keys from his pocket. McCloud then
drew his flashlight and continued the pat-down. McCloud
asked if he could search Plaintiff's pockets, to which Plaintiff
responded “no.” McCloud then began “squeezing” Plaintiff's
pockets and “put [his flashlight] in [Plaintiff's] pocket and
put his hand in [Plaintiff's] pocket and pulled it up.” This is
when McCloud found three crack cocaine rocks in Plaintiff's
pocket, each the size of “a small popcorn,” and some powder.
McCloud handcuffed and arrested Plaintiff for possession of
narcotics. Plaintiff told the Individual Defendants that “they
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[were] making a grave mistake.” The Individual Defendants
told Plaintiff that “they could charge [him] with littering.”
Plaintiff was transported to the NYPD's 40 th Precinct station
house and charged with Criminal Possession of a Controlled
Substance in the 7 th Degree, pursuant to New York Penal
Law § 220.03.
On December 8, 2018, Plaintiff received an Adjournment in
Contemplation of Dismissal pursuant to New York Criminal
Procedure Law § 170.55. On June 7, 2018, Plaintiff's criminal
case was dismissed and sealed.
Defendants moved for summary judgment and filed a Rule
56.1 Statement of Undisputed Facts that relies entirely on
Plaintiff's deposition for an account of the events the night of
Plaintiff's arrest. Plaintiff did not oppose the motion. Pursuant
to Federal Rule of Civil Procedure 56(f), the Court ordered
Defendant to show cause why partial summary judgement
should not be entered for pro se Plaintiff on (1) the unlawful
detention claim for the period between when the Individual
Defendants found Plaintiff's two dollars -- and Plaintiff asked
for it back -- and when the crack cocaine was found in
Plaintiff's pocket, because of a lack of probable cause and
no qualified immunity, and (2) the unlawful search claim for
Defendant McCloud's search of Plaintiff's pocket because it
was not incident to a lawful arrest. Defendants filed a letter
response with legal argument, but did not file any affidavits
from the Individual Defendants or other evidentiary material.
II. LEGAL PRINCIPLES
A. Summary Judgment
Summary judgment is appropriate if the record establishes
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). “A genuine issue of material fact exists if ‘the
evidence is such that a reasonable jury could return a verdict
for the nonmoving party.’ ” Nick's Garage, Inc. v. Progressive
Cas. Ins. Co., 875 F.3d 107, 113 (2d Cir. 2017) (quoting
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986)).
The moving party “bears the burden of ‘demonstrat[ing]
the absence of a genuine issue of material fact.’ ” Id. at
114 (quoting Celotex Corp. v. Catrett, 477 U.S. 317, 323
(1986)) (alteration in original). The evidence is construed in
the light most favorable to, and all reasonable inferences are
drawn in favor of, the nonmoving party. Id. at 113. Summary
judgement is improper if there is any evidence in the record
from any source from which a reasonable inference in the
nonmoving party's favor may be drawn. Id. at 123.
B. Pro se Pleadings and Unopposed Motions
Although the same standards apply, special latitude is given to
a pro se litigant in responding to a summary judgment motion.
McLeod v. Jewish Guild for the Blind, 864 F.3d 154, 156-58
(2d Cir. 2017). “[T]he submissions of a pro se litigant must
be construed liberally and interpreted to raise the strongest
arguments that they suggest.” Williams v. Annucci, 895 F.3d
180, 187 (2d Cir. 2018). In particular, pro se litigants must
be given express notice of the consequences of failing to
respond appropriately to a motion for summary judgment.
McPherson v. Coombe, 174 F.3d 276, 280-81 (2d Cir. 1999);
accord Elastic Wonder, Inc. v. Posey, 179 F. Supp. 3d 307,
310 (S.D.N.Y. 2016). Defendants provided Plaintiff with such
notice on April 12, 2019.
*3 Plaintiff's lack of response to the motion, and specifically
Defendants’ Rule 56.1 statement, is ordinarily construed as
a concession as to the Individual Defendants’ version of the
facts under Local Rule 56.1. However, Defendants’ Rule 56.1
statement is based on Plaintiff's recounting of the facts, so
there is no alternative version of the facts for Plaintiff to
concede. In any event, given Plaintiff's pro se status, his
failure to respond to the Rule 56.1 statement is excused. See,
e.g., Roland v. Ponte, No. 17 Civ. 2758, 2018 WL 4609109,
at *1 n.1 (S.D.N.Y. Sept. 25, 2018). Even when a motion
for summary judgment is unopposed, “the district court is
not relieved of its duty to decide whether the movant is
entitled to judgment as a matter of law.” Wilson v. Air Serv
Corp., 705 F. App'x 43, 44 (2d Cir. 2017) (summary order)
(quoting Vt. Teddy Bear Co. v. 1-800 Beargram Co., 373
F.3d 241, 242 (2d Cir. 2004)). A district court may not grant
an unopposed motion “without first examining the moving
party's submission to determine if it has met its burden of
demonstrating that no material issue of fact remains for trial.”
Gachette v. Metro N.-High Bridge, 598 F. App'x 803, 804 (2d
Cir. 2015) (summary order) (quoting Vt. Teddy Bear Co., 373
F.3d at 244). “[I]n determining whether the moving party has
met this burden ... the district court may not rely solely on the
statement of undisputed facts contained in the moving party's
Rule 56.1 statement. It must be satisfied that the citation to
evidence in the record supports the assertion.” Id. (alteration
in original) (quoting Vermont Teddy Bear Co., 373 F.3d at
244).
III. DISCUSSION
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Plaintiff's pleadings are construed to assert claims under
§ 1983 for unlawful stop and search, false arrest, false
imprisonment and malicious prosecution; similar claims
under New York civil rights law; and a federal municipality
claim, all based on the events that occurred the evening of
September 2, 2016.
To succeed on a claim under § 1983, a plaintiff must establish
(1) that the defendant was a state actor (i.e., acting under color
of state law) when he committed the violation, and (2) that
the defendant deprived the plaintiff of rights, privileges or
immunities secured by the Constitution or laws of the United
States. Milan v. Wertheimer, 808 F.3d 961, 964 (2d Cir. 2015).
A plaintiff must also establish the personal involvement of
each defendant in the alleged constitutional violation. Warren
v. Pataki, 823 F.3d 125, 136 (2d Cir. 2016).
Because Defendants’ Rule 56.1 Statement relies on Plaintiff's
deposition for the facts of what transpired the evening
of Plaintiff's arrest, there are no facts in dispute, and
summary judgment is consequently appropriate on all claims.
As explained below, summary judgment is granted to all
Defendants on all claims, except summary judgment is
granted sua sponte to Plaintiff (1) against the Individual
Defendants on the unlawful detention claim for the period
between when the Individual Defendants found Plaintiff's two
dollars -- and Plaintiff asked for it back -- and when the
crack cocaine was found in Plaintiff's pocket, and (2) against
Defendant McCloud on the unlawful search claim for his
search of Plaintiff's pocket.
A. Unlawful Stop, Detention and Search
Plaintiff's detention and search occurred in three legally
distinct time periods. First, was the Terry stop and pat-down,
which were lawful and for which the Individual Defendants
are granted summary judgment. Second, was Plaintiff's
continued detention and search -- after the Individual
Defendants retrieved Plaintiff's money and before they found
the crack cocaine in his pocket -- which were unlawful and
for which Plaintiff is granted summary judgment. Third, was
Plaintiff's arrest after the crack cocaine was founded in his
pocket, which arrest was lawful and for which the Individual
Defendants are granted summary judgment.
1. Terry Stop and Pat-Down
The Terry stop and pat-down of Plaintiff were lawful.
The Fourth Amendment guarantees a right to be free
from unreasonable searches and seizures. United States
v. Compton, 830 F.3d 55, 61 (2d Cir. 2016). An officer
may conduct a brief investigatory detention (“Terry stop”),
provided “the officer has reasonable suspicion that the person
to be detained is committing or has committed a criminal
offense.” United States v. Fiseku, 915 F.3d 863, 870 (2d
Cir. 2018); see Terry v. Ohio, 392 U.S. 1, 23 (1968).
The reasonable suspicion standard is “less demanding than
probable cause, requiring only facts sufficient to give rise to
a reasonable suspicion that criminal activity may be afoot.”
United States v. Santillan, 902 F.3d 49, 56 (2d Cir. 2018).
As part of a Terry stop, an officer may conduct a pat-down
frisk consisting of a “carefully limited search of the outer
clothing ... in an attempt to discover weapons.” United States
v. Lopez, 321 F. App'x 65, 66 (2d Cir. 2009) (summary order)
(quoting Terry, 392 U.S. at 30); accord United States v.
McDow, 206 F. Supp. 3d 829, 850 (S.D.N.Y. 2016). In order
for a pat-down to accompany a Terry stop, there must be a
reasonable basis to think “ ‘that the person subjected to the
frisk is armed and dangerous.’ ” Dancy v. McGinley, 843 F.3d
93, 107 (2d Cir. 2016) (quoting Arizona v. Johnson, 555 U.S.
323, 327 (2009)).
*4 The Individual Defendants had reasonable suspicion
to conduct a Terry stop because they saw Plaintiff drop
something over the gate from approximately seven or eight
feet away, and may reasonably have believed that he dropped
contraband, such as drugs, on the other side to avoid being
caught with them by the police who were in close proximity.
See United States v. Torres, 252 F. Supp. 3d 229, 233
(S.D.N.Y. 2017) (concluding that officers had reasonable
suspicion to stop defendant, in part, after defendant was
stopped in a high crime area). The Individual Defendants
similarly had a reasonable basis to think that Plaintiff was
armed and dangerous if he was in possession of illegal drugs,
particularly a quantity for resale which they would not have
been able to ascertain from a distance. See Santillan, 902 F.3d
at 59 (concluding that the arresting officer had reasonable
suspicion that defendant was armed and dangerous after
observing “several indicators of possible narcotics activity”
and because “[n]arcotics activity and weapons often go hand
in hand”). The Individual Defendants are entitled to summary
judgment on the federal and state claims based on the stop
and pat-down. See Ferguson v. City of New York, No. 17 Civ.
4090, 2018 WL 3626427, at *4 (E.D.N.Y. July 30, 2018)
(concluding -- because reasonable suspicion “under New
York law is co-extensive with the federal reasonable suspicion
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standard” -- that plaintiff's seizure was unlawful under New
York law, in part, because it was already determined that the
arresting officer lacked reasonable suspicion under federal
law).
2. Continued Detention and Search
After Plaintiff's Money Was Found
a. Plaintiff's Continued Detention
The Individual Defendants’ continued detention of Plaintiff
after they found his money was unlawful because they no
longer had reasonable suspicion to detain him. While the
Fourth Amendment places “no rigid time limitation on Terry
stops,” United States v. Sharpe, 470 U.S. 675, 685 (1985),
“the detention can continue only for the period of time
necessary to either verify or dispel the suspicion.” Compton,
830 F.3d at 64. The burden is on the Government “ ‘to
demonstrate that the seizure it seeks to justify on the basis
of a reasonable suspicion was sufficiently limited in scope
and duration to satisfy the conditions of an investigative
seizure.’ ” Fiseku, 915 F.3d at 870 (quoting Florida v. Royer,
460 U.S. 491, 500 (1983)). After the Individual Defendants
found Plaintiff's money, they no longer had any basis to
suspect that he had disposed of contraband. To the contrary,
their discovery confirmed his statement to them that he had
dropped money over the gate.
Defendants argue that, even after Plaintiff's money was
found, they reasonably detained him -- and are therefore
protected by the doctrine of qualified immunity -- because
they had at least “arguable probable cause” to arrest him
for littering in violation of New York City Administrative
Code § 16-118 (1)(a). “Qualified immunity establishes a
defense for a government actor acting in his official capacity.”
Dufort v. City of New York, 874 F.3d 338, 354 (2d Cir.
2017). Arresting officers are entitled to qualified immunity
if they had “arguable probable cause” for the arrest. Id.
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” or “[p]ut
another way ... [if] no reasonably competent officer could
have concluded, based on the facts known at the time of arrest,
that probable cause existed.” Figueroa v. Mazza, 825 F.3d
89, 100 (2d Cir. 2016) (internal quotation marks omitted).
When there is no dispute as to the “material historical facts,”
the question of qualified immunity -- i.e., the objective
reasonableness of the officer's conduct -- is a question of law
for the court. Outlaw v. City of Hartford, 884 F.3d 351, 367
(2d Cir. 2018).
New York City Administrative Code § 16-118 (1)(a) states:
“No person shall litter, sweep, throw or cast ... any ashes,
garbage, paper, dust or other rubbish or refuse of any kind
whatsoever, in or upon any street or public place, vacant lot,
air shaft, areaway, backyard court, park or alley.” After the
Individual Defendants had confirmed Plaintiff's story that he
accidentally dropped money over the gate and Plaintiff asked
for it back, no officer of reasonable competence could have
concluded that he had violated the ordinance.
*5 First, they could not have concluded that he “litter[ed],
swe[pt], thr[ew] or cast” the money within the meaning of
Section 16-118 (1)(a), as the statute implies a violation from
discarding something -- not accidentally dropping it and then
seeking to retrieve it. See, e.g., Sands v. City of New York,
No. 04 Civ. 5275, 2006 WL 2850613, at *5 (E.D.N.Y. Oct.
3, 2006) (finding that defendant officers had probable cause
to arrest plaintiff under a previously enacted version of the
littering ordinance, where plaintiff tore up a traffic ticket
and threw the pieces on the ground). In their memorandum,
Defendants repeatedly state that, after dropping the two
dollars, Plaintiff then “turned around as if to walk away.” But
the evidence does not support that Plaintiff attempted or began
to walk away, or that he otherwise intended to abandon the
money he had dropped. Instead, the record shows that he was
detained and, after the Individual Defendants had retrieved
his money, Plaintiff requested that they return it.
Second, no reasonable officer could have concluded that the
money was “ashes, garbage, paper, dust or other rubbish or
refuse” within the meaning of the statute. See Harris v. City
of New York, No. 15 Civ. 8456, 2017 WL 6501912, at *6
(S.D.N.Y. Dec. 15, 2017) (declining to decide on summary
judgment whether a jacket was within the littering statute and
noting that “[c]learly, a jacket is not ashes, paper, or dust....
[but] could, however, be ‘garbage,’ ‘rubbish,’ or ‘refuse’ ”
if it were discarded as something unwanted). Money is a
thing of intrinsic value, and Plaintiff evidenced no intention of
discarding it. In cases where courts have found probable cause
for violating Section 16-118 (1)(a), the discarded items were
objects of little or no value. See Peterec v. City of New York,
No. 14 Civ. 309, 2015 WL 1027367, at *4 (S.D.N.Y. Mar.
6, 2015) (finding probable cause for a Section 16-118 (1)(a)
violation, where plaintiff dropped some garbage from a bag)
(emphasis added); United States v. Davis, 111 F. Supp. 3d 323,
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333-34 (E.D.N.Y. 2015) (finding probable cause for a Section
16-118 (1)(a) violation, where defendant officers observed
plaintiff drop a beer bottle on a sidewalk) (emphasis added).
Because the Individual Defendants did not have probable
cause or even arguable probable cause to detain Plaintiff
after his money was found, they are not entitled to qualified
immunity and summary judgment is granted to Plaintiff for
that detention.
b. Search of Plaintiff's Pocket
Because the Individual Defendants did not have probable
cause or arguable probable cause to arrest Plaintiff after
his money was found, summary judgment is granted sua
sponte to Plaintiff against Defendant McCloud as to his search
of Plaintiff's pocket, which occurred during his unlawful
detention.
The Fourth Amendment protects against unreasonable
searches and seizures. Fiseku, 915 F.3d at 870. While a
search typically requires a warrant to be reasonable, the search
incident to arrest doctrine is an exception to the warrant
requirement of the Fourth Amendment. United States v. Diaz,
854 F.3d 197, 205 (2d Cir. 2017). As the lawful arrest itself
establishes the legality of the search, an unlawful search claim
turns on the existence of probable cause. United States v.
Robinson, 414 U.S. 218, 235 (1973); accord Corley v. Vance,
365 F. Supp. 3d 407, 443 (S.D.N.Y. 2019). A search incident
to arrest may take place before the arrest itself occurs. Diaz,
854 F.3d at 205.
As discussed at length above, after Plaintiff's money was
found, the Individual Defendants did not have any basis to
continue to detain Plaintiff, much less arrest him. Therefore
the search of Plaintiff's pocket while he was unlawfully
detained was also unlawful because the search was not
incident to a valid arrest. See United States v. Babwah, 972
F.2d 30, 33-34 (2d Cir. 1992) (concluding that a search
of defendant's residence -- and evidence seized during the
search -- was done so unlawfully, where defendant was
unlawfully detained before he consented to the search); see
also McDow, 206 F. Supp. 3d at 856 (concluding that --
after officers detained, questioned and searched defendant's
pockets without finding evidence of the suspected crime --
defendant was unlawfully detained, rendering a further search
and continued detention in a lobby also unlawful).
*6 Similarly, the search of Plaintiff's pocket is not protected
by the doctrine of qualified immunity because no reasonable
officer would have believed that the search was incident to a
lawful arrest. If Defendants had established arguable probable
cause for detaining Plaintiff after the money was found, the
ensuing search also might have been protected by qualified
immunity. See, e.g., Mastromonaco v. Cty. of Westchester,
No. 15 Civ. 10166, 2018 WL 4042111, at *5-6 (S.D.N.Y.
Aug. 23, 2018); Baksh v City of New York, No. 15 Civ.
7065, 2018 WL 1701940, at *6 n.5 (E.D.N.Y. Mar. 31, 2018).
But as discussed above, the Individual Defendants had no
objectively reasonable basis to detain Plaintiff after the money
was found, and therefore had no basis to search him during
that detention.
Summary judgment is granted to Plaintiff on the unlawful
search claims under federal and New York law. See Carlos
Quiles & Carlos Rodriguez v. City of New York, No. 15 Civ.
1055, 2016 WL 6084078, at *4, 14 (S.D.N.Y. Oct. 12, 2016)
(“The analysis for determining whether an official is entitled
to qualified immunity for claims under New York law is
substantially similar to that which is applied when defendants
are faced with federal claims.”).
3. Plaintiff's Arrest After the Discovery of Narcotics
Summary judgment is granted to the Individual Defendants
on Plaintiff's claims for false arrest and false imprisonment
after they discovered the crack in Plaintiff's pocket, because
the discovery provided them with probable cause to arrest.
A § 1983 claim for false arrest is based on the Fourth
Amendment. Mara v. Rilling, 921 F.3d 48, 73 (2d Cir. 2019).
The analysis that applies to § 1983 false arrest claims also
applies to false imprisonment claims. Jean v. City of New
York, 512 F. App'x 30, 31 (2d Cir. 2013) (summary order);
accord Barnes v. City of New York, 338 F. Supp. 3d 317,
322 (S.D.N.Y. 2018). When analyzing § 1983 false arrest
claims, “we have generally looked to the law of the state
in which the arrest occurred.” Dancy, 843 F.3d at 107. “A
section 1983 claim for false arrest is substantially the same
as a claim for false arrest under New York law.” Simpson v.
City of New York, 793 F.3d 259, 265 (2d Cir. 2015). “Under
New York law, a false arrest claim requires a plaintiff to
show that the defendant intentionally confined him without
his consent and without justification.” Dancy, 843 F.3d at
107 (internal quotation marks omitted). Probable cause is an
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absolute defense to a false arrest claim. Dufort, 874 F.3d at
347.
There is no dispute that Defendant McCloud discovered crack
cocaine in Plaintiff's pocket in the course of his search. This
fact alone provides probable cause for Plaintiff's arrest. That
the search resulting in the discovery was unlawful does not
change the result because the “fruit of the poisonous tree”
doctrine does not apply to § 1983 claims. See Jenkins v. City
of New York, 478 F.3d 76, 91 n.16 (2d Cir. 2007); Townes v.
City of New York, 176 F.3d 138, 145 (2d Cir. 1999); Marchand
v. Hartman, 395 F. Supp. 3d 202, 217 (D. Conn. 2019).
Summary judgment is granted to the Individual Defendants
on Plaintiff's false arrest and false imprisonment claims under
federal and New York law. See Jenkins, 478 F.3d at 88
(“[U]nder both New York and federal law, summary judgment
dismissing a plaintiff's false arrest [and false imprisonment]
claim[s] is appropriate if the undisputed facts indicate that
the arresting officer's probable cause determination was
objectively reasonable.”).
B. Malicious Prosecution
Summary judgment is granted to the Individual Defendants
on Plaintiff's malicious prosecution claim because there was
sufficient probable cause underlying his criminal prosecution.
*7 A § 1983 claim for malicious prosecution arises from
liberty and privacy interests under the Fourth Amendment.
Lanning v. City of Glens Falls, 908 F.3d 19, 24 (2d Cir. 2018).
Under New York law, malicious prosecution requires: “(1)
the initiation or continuation of a criminal proceeding against
plaintiff; (2) termination of the proceeding in plaintiff's favor;
(3) lack of probable cause for commencing the proceeding;
and (4) actual malice as a motivation for defendant's actions.”
Manganiello v. City of New York, 612 F.3d 149, 161 (2d
Cir. 2010); accord Bennett v. Vidal, 267 F. Supp. 3d 487,
496 (S.D.N.Y. 2017). A § 1983 malicious prosecution claim
requires the additional element of “(5) a sufficient post-
arraignment liberty restraint to implicate the plaintiff's Fourth
Amendment rights.” Rohman v. N.Y. City Transit Auth., 215
F.3d 208, 215 (2d Cir. 2000); accord Bennett, 267 F. Supp.
3d at 497. Probable cause is a complete defense to a claim
of malicious prosecution in New York. Dettelis v. Sharbaugh,
919 F.3d 161, 164 (2d Cir. 2019).
There is no dispute that Defendant McCloud discovered crack
cocaine in Plaintiff's pocket. This discovery provides the
requisite probable cause for Plaintiff's criminal prosecution,
defeating any malicious prosecution claim by Plaintiff
against the Individual Defendants under state or federal
law. Summary judgment is granted on the federal and state
malicious prosecution claims. See Smith v. Ware, No. 17 Civ.
5152, 2019 WL 2616194, at *5 (S.D.N.Y. June 26, 2019)
(dismissing plaintiff's federal and state malicious prosecution
claims where the probable cause underlying his arrest also
resolved his malicious prosecution claims).
C. Municipal Liability
Summary judgment is granted to Defendant NYPD because it
is not a suable entity. Pursuant to the New York City Charter,
“[a]ll actions and proceedings for the recovery of penalties
for the violation of any law shall be brought in the name of
the [C]ity of New York and not in that of any agency, except
where otherwise provided by law.” N.Y. City Charter § 396;
see also Johnson v. N.Y.C. Police Dep't, 651 F. App'x 58, 60
(2d Cir. 2016) (summary order); Braun v. City of New York,
284 F. Supp. 3d 572, 574 n.1 (S.D.N.Y. 2018). A claim against
the NYPD is properly brought against the City.
Summary judgment is granted to the City on the municipal
liability claim. To bring a § 1983 claim for municipal
liability, “a plaintiff must prove that action pursuant to official
municipal policy caused the alleged constitutional injury.” Hu
v. City of New York, 927 F.3d 81, 104 (2d Cir. 2019); see
also Monell v. Dep't of Social Servs., 436 U.S. 658, 694-95
(1978). A municipality may be held liable “if the plaintiff's
injury was caused by ‘action pursuant to official municipal
policy.’ ‘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.’ ” Hernandez v. United
States, 939 F.3d 191, 206 (2d Cir. 2019) (internal citations
omitted) (quoting Connick v. Thompson, 563 U.S. 51, 60-61
(2011)).
The record contains no evidence that the City had a policy
to detain and search people after the reasonable suspicion
preceding a Terry stop has failed to ripen into probable cause.
Accordingly, summary judgment is granted on Plaintiff's
municipal liability claim.
IV. CONCLUSION
For the foregoing reasons, Defendants’ motion for summary
judgement is GRANTED in part and DENIED in part.
Summary judgment is granted to all Defendants on all
claims, except summary judgment is granted sua sponte to
Plaintiff (1) against the Individual Defendants on the unlawful
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Alexander v. City of New York, Not Reported in Fed. Supp. (2019)
© 2025 Thomson Reuters. No claim to original U.S. Government Works. 7
detention claim for the period between when the Individual
Defendants found Plaintiff's two dollars and when the crack
cocaine was found in Plaintiff's pocket, and (2) against
Defendant McCloud on the unlawful search claim for his
search of Plaintiff's pocket during the unlawful detention.
*8 The Clerk of Court is respectfully directed to close the
motion at Docket Number 78 and to mail a copy of this
Opinion and Order to pro se Plaintiff's daughter.
All Citations
Not Reported in Fed. Supp., 2019 WL 5887300
Footnotes
1 In a November 1, 2019, letter filed on ECF, the Court was notified by a non-party that Plaintiff passed away
on August 15, 2019.
End of Document © 2025 Thomson Reuters. No claim to original U.S. Government Works.
Case 3:25-cv-00103-ECC-ML Document 8 Filed 12/16/25 Page 52 of 201

Allen v. FMR LLC, Not Reported in Fed. Supp. (2023)
© 2025 Thomson Reuters. No claim to original U.S. Government Works. 1
2023 WL 142903
Only the Westlaw citation is currently available.
United States District Court, D. Arizona.
Justin Robert ALLEN, Plaintiff,
v.
FMR LLC, et al., Defendants.
No. CV-23-00031-PHX-SMM
|
Signed January 10, 2023
Attorneys and Law Firms
Justin Robert Allen, Phoenix, AZ, Pro Se.
ORDER
Stephen M. McNamee, Senior United States District Judge
*1 Pending before the Court are Plaintiff's Application to
Proceed In Forma Pauperis (Doc. 2) and Complaint (Doc.
1). For the following reasons, the Court will grant Plaintiff's
Application to Proceed In Forma Pauperis and exercise its
authority pursuant to 28 U.S.C. § 1915(e)(2) to dismiss
Plaintiff's Complaint with leave to amend.
I. Application to Proceed In Forma Pauperis
The Application states that Plaintiff has very little monthly
income and that this income is vastly outweighed by his
expenses. (Doc. 2) Because the Application, signed under
penalty of perjury, indicates that Plaintiff is financially unable
to pay the filing fee, the Court will grant Plaintiff's IFP
application and screen Plaintiff's Complaint pursuant to 28
U.S.C. § 1915(e)(2).
II. Screening IFP Complaints Pursuant to 28 U.S.C. §
1915(e)(2)
A. Legal Standard
When a party seeks to proceed without paying fees or costs, as
Plaintiff does here, a district court is required to “dismiss the
case at any time if the court determines” that the “allegation of
poverty is untrue” or that the “action or appeal” is “frivolous
or malicious,” “fails to state a claim on which relief may
be granted,” or “seeks monetary relief against a defendant
who is immune from such relief.” 28 U.S.C. § 1915(e)(2);
see also Lopez v. Smith, 203 F.3d 1122, 1126 n.7 (9th Cir.
2000) (noting that § 1915(e) applies to all IFP complaints,
not merely those filed by prisoners). Accordingly, “section
1915(e) not only permits but requires a district court to
dismiss an in forma pauperis complaint that fails to state a
claim.” Lopez, 203 F.3d at 1127.
A complaint is frivolous if it is based on a nonexistent legal
interest or delusional factual scenario. Neitzke v. Williams,
490 U.S. 319, 327-30 (1989); see also Denton v. Hernandez,
504 U.S. 25, 32-33 (1992) (dismissal is also appropriate when
the facts alleged are “clearly baseless,” “fanciful,” “fantastic,”
or “delusional”). This Court has “not only the authority to
dismiss a claim based on an indisputably meritless legal
theory, but also the unusual power to pierce the veil of
the complaint's factual allegations and dismiss those claims
whose factual contentions are clearly baseless.” Neitzke, 490
U.S. at 328.
In addition to being nonfrivolous, a pleading must 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). The pleading must “put defendants fairly on notice of
the claims against them.” McKeever v. Block, 932 F.2d 795,
798 (9th Cir. 1991). While Rule 8 does not demand detailed
factual allegations, “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) (quoting 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.” Id.
B. Analysis
*2 The Court finds that Plaintiff's Complaint is frivolous and
fails to state a plausible claim.
The Complaint is Frivolous
The Complaint is frivolous and must be dismissed because
it is centered around a fantastical and conspiratorial factual
scenario. See Neitzke, 490 U.S. at 327-30. The Complaint,
which lists 806 Defendants and seeks $999,999,999,999.99
in damages, is centered around allegations that various
Defendants have been operating a “long running scheme”
involving various transfers of large sums of money in and out
of his Fidelity investment account. The allegations involve
conspiracy and bribery relating to every major U.S. bank
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Allen v. FMR LLC, Not Reported in Fed. Supp. (2023)
© 2025 Thomson Reuters. No claim to original U.S. Government Works. 2
and phone provider, and state, local, and federal officials,
including all members of the Securities and Exchange
Commission. Plaintiff alleges that the federal or Arizona
state governments have been “acting to make it impossible
for someone locate me.” (Doc. 1 at 9). Plaintiff also claims
that unspecified powerful and famous individuals have been
“impersonating,” “gangstalking,” and “clon[ing]” him.
Because the facts alleged are fantastical and clearly baseless,
the Court must dismiss Plaintiff's complaint. See Denton, 504
U.S. at 32-33.
The Complaint Fails to State a Plausible Claim
Further, despite the many statutes that Plaintiff bring claims
under, the Complaint fails to state a claim under which relief
may be granted. The Complaint purports to bring a cause of
action under 18 U.S.C. § 641, 18 U.S.C. § 471, 18 U.S.C. §
1028, 18 U.S.C. § 1348, and 18 U.S.C. § 1349. (Doc. 1 at
8). However, these are criminal statutes and do not create any
private right of action.
The Complaint also requests relief for breach of fiduciary
duty under 15 U.S.C. § 80a-35. (Id.) This statute only
creates a private right of action for officers, directors,
investment advisers, principal underwriters, or depositors of
a registered investment company. 15 U.S.C. § 80a-35(a).
Because Plaintiff has not alleged that he has any of these roles
with a registered investment company, he may not bring a
claim under this statute.
Plaintiff also bring a claim under 41 U.S.C. § 6503. (Id.)
However, this statute pertains to situations where a party
breaches a contract it made with the United States under
41 U.S.C. § 6502, “for the manufacture or furnishing of
materials, supplies, articles, or equipment, in an mount
exceeding $10,000 ....” The statute provides the United States
with remedies for when such a contract is breached by a
nongovernmental entity or individual. As such, the statute
does not provide Plaintiff with a cause of action to sue
Defendants.
On its cover page, the Complaint lists 29 U.S.C. § 1109.
(Doc. 1 at 1). This statute creates liability for fiduciaries under
the Employee Retirement Income Security Act (ERISA). The
Complaint, however, makes no mention of ERISA and the
Court is unable to see how this statute relates to Plaintiff's
allegations. The cover page also lists 15 U.S.C. § 780, which
allows anyone affected by an order, rule, or regulation issued
by the Administrator of the Federal Energy Administration
to petition the Administrator for redress. Again, the Court is
unable to draw a connection between the facts alleged and this
statute.
*3 The Complaint alleges violations of 42 U.S.C. § 423,
without offering any further detail. (Id.) However, this statute,
which delineates social security eligibility and payments,
does not provide a cause of action or otherwise appear to
have any relation to Plaintiff's factual allegations. Similarly,
Plaintiff alleges a violation of 31 U.S.C. § 5311, which does
not create a cause of action. (Id.)
The Complaint alleges a violation of the Foreign Corrupt
Practices Act, 15 U.S.C. §§ 78DD-1, et seq. However,
Plaintiff fails to explain how his factual allegations bear any
relation to this Act. The Complaint does not reference any
foreign official or political party.
In sum, Plaintiff has failed to show that he is entitled to relief
under any of the statutes that he has brought claims under.
Accordingly,
IT IS HEREBY ORDERED granting Plaintiff's
Application to Proceed In Forma Pauperis. (Doc. 2).
IT IS FURTHER ORDERED dismissing without
prejudice Plaintiff's Complaint (Doc. 1) as frivolous and for
failure to state a plausible claim upon which relief may be
granted pursuant to 28 U.S.C. § 1915(e)(2).
IT IS FURTHER ORDERED that Plaintiff may file an
amended complaint on or before February 7, 2023. Failure to
file an amended complaint shall result in immediate dismissal
of this action.
All Citations
Not Reported in Fed. Supp., 2023 WL 142903
End of Document © 2025 Thomson Reuters. No claim to original U.S. Government Works.
Case 3:25-cv-00103-ECC-ML Document 8 Filed 12/16/25 Page 54 of 201

Bennett v. New York State Thruway Authority, Not Reported in Fed. Supp. (2024)
© 2025 Thomson Reuters. No claim to original U.S. Government Works. 1
2024 WL 1053222
Only the Westlaw citation is currently available.
United States District Court, N.D. New York.
William Paul BENNETT, Plaintiff,
v.
NEW YORK STATE THRUWAY AUTHORITY,
Joanne M. Mahoney, Mayor Matthew Driscoll,
James Konstalid, John Barr, Frank Multari, Mary
Boehm, Carlos Millan, Patrick Hoehn, Kevin Post,
Robert Dressing, Barry Oaksford, Michael Blais,
Todd Summerson, and David Naples, Defendants.
6:22-CV-337
|
Signed March 11, 2024
Attorneys and Law Firms
WILLIAM PAUL BENNETT, Plaintiff, Pro Se, 1610 North
George Street, Rome, NY 13440.
HON. LETITIA A. JAMES, New York State Attorney
General, ERIN P. MEAD, ESQ., STACEY A. HAMILTON,
ESQ., Ass't Attorneys General, Attorneys for Defendants,
The Capitol, Albany, NY 12224.
DECISION and ORDER
DAVID N. HURD, United States District Judge
I. INTRODUCTION
*1 On April 8, 2022, pro se plaintiff William Paul
Bennett (“plaintiff”), a New York State Thruway Authority
(“NYSTA”) employee, filed this action alleging that his
employer and fourteen high-ranking or supervisory NYSTA
officials violated his civil rights by, inter alia, disciplining
him under policies and directives related to the COVID-19
pandemic. Dkt. No. 1. Along with his initial complaint,
plaintiff moved for leave to proceed in forma pauperis (“IFP
Application”), Dkt. No. 2, and to have counsel appointed
to assist him, Dkt. No. 4. Thereafter, plaintiff also filed an
amended complaint. Dkt. No. 5.
Plaintiff's amended complaint clocks in at 142 pages. It
asserts federal claims under various provisions of the U.S.
Constitution, the Americans with Disabilities Act (“ADA”),
Title VII of the Civil Rights Act of 1964 (“Title VII”),
42 U.S.C. § 1983, 18 U.S.C. §§ 241, 242, 351(e), 28
U.S.C. § 4101, and related state law. Plaintiff seeks a total
of $39,312,655.65 in damages as well as declaratory and
injunctive relief.
On June 10, 2022, U.S. Magistrate Judge Miroslav Lovric
conducted a review of plaintiff's IFP Application. Dkt. No.
6. There, Judge Lovric noted that plaintiff was still employed
by the NYSTA and receiving his regular, biweekly wages. Id.
Plaintiff also co-owned some real estate with a non-zero fair
market value. Id. Because his earnings and holdings put him
well above the poverty line, Judge Lovric denied plaintiff's
IFP Application. Id. Judge Lovric also denied plaintiff's
motion for counsel. Id. However, Judge Lovric gave plaintiff
thirty days in which to pay the filing fee. Id. Plaintiff promptly
did so. Thereafter, summonses were issued, Dkt. No. 10, and
all of the named defendants appeared in this action on July
25, 2022, Dkt. No. 20.
On October 31, 2022, defendants moved under Federal Rule
of Civil Procedure (“Rule”) 12(b)(1) and 12(b)(6) to dismiss
plaintiff's amended complaint. Dkt. Nos. 32, 33. Plaintiff
opposed. Dkt. No. 39. The matter was reassigned to this Court
on February 16, 2024. Dkt. No. 56.
The motion has been fully briefed and will be considered on
the basis of the submissions without oral argument. 1
II. BACKGROUND
The following facts are taken from plaintiff's amended
complaint and its attached exhibits, Dkt. No. 5, and are
assumed true for the purpose of assessing defendants’ motion
to dismiss.
On February 11, 2016, the NYSTA hired plaintiff in the title
of General Mechanic / HVAC worker. Am. Compl. at 14. 2
Plaintiff's interview was conducted by defendant Oaksford
and non-party Chandler. Id. During the interview, plaintiff had
“a full beard and mustache.” Id. Although neither Oaksford
nor Chandler mentioned it at the interview, plaintiff was later
told by Oaksford that he “would be required to shave for a
mandatory respirator fit test.” Id. Plaintiff alleges that that
no maintenance employees besides Chandler “had used a
respirator during the preceding ten (10) years.” Id.
*2 Plaintiff submitted a “Request for Reasonable
Accommodation,” in which he requested that he “be
permitted to be excused from shaving and the subsequent fit
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test as respirators are not typically used by anyone in [his]
job description.” Am. Compl. at 14. According to plaintiff,
“the presence of [his] facial hair was part of [his] firmly held
religious beliefs and practices.” Id. The NYSTA asked for
“additional documentation.” Id. Thereafter, plaintiff's request
for a Reasonable Accommodation was granted. Id. at 14–15.
A year later, plaintiff received a notice informing him that he
would need to re-apply for this Reasonable Accommodation.
Am. Compl. at 15. When he asked why this was required,
plaintiff “was informed by various NYSTA management
and EEOC [Equal Employment Opportunity Commission]
personnel that such re-application is to make sure that no
change in status existed.” Id. “NYSTA EEOC personnel
instructed [plaintiff] to fill out the appropriate form and
to put wording to the effect that there were no changes
to the previous annual application.” Id. Thereafter, plaintiff
forwarded the re-application to EEOC. Id.
Shortly after mailing away his re-application, plaintiff and his
co-workers “were assigned to a training class which was held
in the break area” of the maintenance facility. Am. Compl. at
15. Defendant Post was the training class instructor. Id. At the
end of the training, Post approached plaintiff “to tell [him] that
he had seen [plaintiff's] second application for Reasonable
Accommodation and that it was incomplete.” Id. Post told
plaintiff he “had to submit new documentation, specifically
referring to a letter on Church letterhead from the parish
priest.” Id. Plaintiff responded that he had already followed
the EEOC's instructions. Id.
At that time, Post “proceeded to raise his voice and chastise
[plaintiff] in front of his [fellow co-workers] with words that
included ‘This isn't a fight you want to take on.’ ” Am.
Compl. at 15. Plaintiff walked away. Id. But he did not file
a grievance against Post. Id. Soon thereafter, plaintiff learned
that an NYSTA employee named Chris Dulong “was also
involved in disciplinary issues regarding facial hair and fit
testing requirements” and was later terminated. Id. at 15–16.
Thereafter, plaintiff and non-parties Chandler and Bentley
were assigned to a NYSTA facility in Utica. Am. Compl. at
16. At some point, Bentley was injured and unable to work. Id.
So plaintiff took a “two[-]week period of employment known
as ‘Out of Title.’ ” Id. During that period, plaintiff learned and
performed the duties of a “Maintenance Supervisor I,” which
is the job title that Bentley held. Id.
While performing in that position, plaintiff attempted to
complete a job at a NYSTA facility in Herkimer. Am. Compl.
at 16. But there was an issue with scheduling, so plaintiff told
defendant Blais that the job would have to be rescheduled.
Id. Blais “lost his temper” and “started yelling at [plaintiff],”
including shouting that plaintiff didn't “care about taking care
of matters at his facility.” Id. Plaintiff “called” Blais on his
“demeanor” and Blais “apologize[d] and revert[ed] to a civil
tone.” Id
On April 17, 2020, NYSTA, with the approval of defendants
Mahoney, Driscoll, Konstalid, Barr, Multari, Boehm, and
Millan, published and distributed a document called “Safety
Gram #192.” Am. Compl. ¶ 1. This document “is the first
official mention of [a] requirement of use of masks or
facial coverings and the proper use thereof.” Id. According
to plaintiff, this Safety Gram is a breach of a collective
bargaining agreement that applies to him. Id. ¶¶ 1, 5, 18.
According to plaintiff, one or more of the named defendants
violated his civil rights by wrongfully applying this Safety
Gram against him. Id. ¶¶ 2–4.
*3 On or about June of 2020, defendants “established a
policy regarding a requirement that all YSTA employees
complete a ‘Wellness Survey.’ ” Am. Compl. ¶ 11. Plaintiff
alleges that this policy is also a breach of the collective
bargaining agreement. Id. Plaintiff further alleges that he
suffered from an unidentified medical condition that made it
difficult for him to complete this survey. Id. ¶ 13. Plaintiff
alleges that defendant Post knew this. Id.
On or about July 21, 2020, plaintiff attended a training
session at an NYSTA facility in Herkimer. Am. Compl.
¶ 15. The training was conducted by defendant Naples.
Id. Plaintiff had previously talked with Naples about his
Reasonable Accommodation related to his beard, so plaintiff
approached Naples to tell him that he believed that Safety
Gram #192 violated the collective bargaining agreement and
his civil rights. Id. Plaintiff alleges that Naples “failed to act”
on this verbal; i.e., “non-written” request for a Reasonable
Accommodation. Id.
On September 30, 2020, defendant Post issued a
Memorandum to NYSTA employees about the then-ongoing
COVID-19 pandemic. Ex. 7 to Am. Compl. at 88; Am.
Compl. ¶ 51. Among other things, this Memorandum
required all employees to wear masks indoors in “all
public / common areas.” Id. This Memorandum cautioned
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that “blatant disregard for the protocols will be addressed
appropriately.” Id.
On October 1, 2020, plaintiff was using a urinal in the men's
bathroom when defendant Blais entered the room and ordered
plaintiff “to put a mask on.” Am. Compl. ¶ 17. Plaintiff
responded to Blais that he had two doctor's notes that allowed
him “to not wear a mask as long as [he] was social distancing.”
Id. Defendant Blais reported this interaction to his supervisor,
who in turn reported it to defendant Post. Id. ¶¶ 27, 31.
Several hours later, the NYSTA issued to plaintiff a Job
Counseling Memo (“JCM”) based on his failure to comply
with the NYSTA safety policies and his failure to follow
supervisory directives. Ex. 4 to Am. Compl. at 77; Am.
Compl. ¶¶ 35, 37. The JCM warned plaintiff that “[s]imilar
problems in the future may lead to an Unsatisfactory
Performance Rating and/or disciplinary action.” Id.
Later that day, plaintiff contacted defendant Naples, the
EEOC official at the NYSTA, to tell him about what had
happened in the bathroom and the JCM he had received. Am.
Compl. ¶ 57. Naples “conceded that he should have done
something with the information he received [from plaintiff]
in July” and “instructed [plaintiff] to file a written request for
a Reasonable Accommodation.” Id.
On October 2, 2020, plaintiff submitted to the NYSTA a
Request for a Reasonable Accommodation. Ex. 2 to Defs.’
Mem., Dkt. No. 33-2. 3 This request sought to “not be
required to wear a face covering when working alone or in
areas where social distancing can be maintained.” Id.
Plaintiff supported this request with a doctor's note that says
he “has difficulty wearing the mask all the time” and “it is
okay not to wear the mask if he is alone or working separately
while adhering to social distancing and CDC guidelines.” Ex.
3 to Defs.’ Mem., Dkt. No. 33-3. A few days later, plaintiff
sent to various named defendants an e-mail complaint about
the October 1 JCM. Am. Compl. ¶ 59.
*4 On October 15, 2020, the NYSTA responded to plaintiff's
Request for a Reasonable Accommodation. Compl. at 95.
The letter explained that NYSTA would provide him with the
following accommodations:
-You will be issued extra facemasks at the start of your day.
You should adhere to the directive on face coverings as
follows: “a face covering must be carried on your person
at all times while on Authority property and worn when
social distancing (i.e., less than 6 feet distance cannot be
achieved.” You are permitted to remove your facemask as
needed for medical reasons provided that you adhere to
the above referenced policy and/or supervisor's directive.
Please not that when in common areas (such as rest rooms,
hallways, etc.) or approaching areas where employees may
be gathered, masks are required to be worn.
Am. Compl. at 95.
On October 29, 2020, plaintiff received another JCM
based on a “pattern of insubordination and disregard for
safety procedures.” Am. Compl. at 90; Am. Compl. ¶ 61.
According to this JCM, plaintiff had violated COVID-19
safety directives on October 15 and again on October 29.
Id. During the job counseling meeting on this second JCM,
plaintiff alleges that defendant Oaksford told him that he “did
not care if” plaintiff “had a Reasonable Accommodation,”
and that if he was unhappy about following orders he could
grieve it through the union later. Am. Compl. ¶ 63. Various
defendants signed the second JCM on November 16, 2020.
Id. ¶¶ 67, 69, 71, 73, 75.
On December 7, 2020, plaintiff received a third JCM.
Am. Compl. at 97. This disciplinary memo was issued for
plaintiff's “pattern of failure to follow directives and disregard
for safety protocols and procedures.” Id. ¶ 77. This JCM
stated that plaintiff continued to ignore the COVID-19 safety
directives that required him to wear a mask in common areas.
Id. at 97. As before, this JCM warned plaintiff that “[s]imilar
problems in the future may lead to an Unsatisfactory
Performance Rating and/or disciplinary action.” Id.
On January 20, 2021, defendant Millan notified plaintiff
that he was being charged with misconduct for his repeated
violations of the COVID-19 safety policies. Am. Compl. at
103; Am. Compl. ¶ 87. This letter explained that a hearing
would be conducted on the charge. Id. Thereafter, plaintiff,
after consulting with a union representative and hiring his
own lawyer, entered into a stipulation in which he agreed to
plead guilty to the charges in the January 20, 2021 letter and
pay a $610.80 fine. Am. Compl. at 101–102; Am. Compl. ¶¶
87–94.
On February 8, 2021, defendant Hoehn notified plaintiff that
he had received a “Report of Unsatisfactory Performance”
for the rating period between February 11, 2020 through
February 11, 2021.” Am. Compl. at 107. This performance
rating was based on the fact that plaintiff had received three
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JCMs; i.e., he had been repeatedly counseled for his failure
to follow the NYSTA's COVID-19 directives. Id. As a result
of this rating, plaintiff missed out a scheduled pay raise. Am.
Compl. ¶ 95. He appealed the determination but the NYSTA
affirmed the unsatisfactory rating. Compl. at 112.
On July 29, 2021, plaintiff filed a civil rights complaint with
the New York State Division of Human Rights (“DHR”)
alleging that the NYSTA's denial of his pay raise was
the result of sexual harassment, non-compliance with his
reasonable accommodation, and retaliation. Ex. 6, Dkt. No.
33-6. The DHR conducted an investigation. See Am. Compl.
at 12–13.
*5 On January 11, 2022, the DHR determined that there was
no probable cause to believe that a violation occurred. Ex.
9, Dkt. No. 33-9. Thereafter, the EEOC adopted the DHR's
findings and issued plaintiff a so-called “right-to-sue” letter
on March 8, 2022. Ex. 10, Dkt. No. 33-10; Am. Compl. at 13.
III. LEGAL STANDARDS
A. Rule 12(b)(1)
“A case is properly dismissed for lack of subject matter
jurisdiction under Rule 12(b)(1) when the district court lacks
the statutory or constitutional power to adjudicate it.” Forjone
v. Dep't of Motor Vehicles, 414 F. Supp. 3d 292, 297–98
(N.D.N.Y. 2019) (cleaned up). “The Second Circuit has drawn
a distinction between two types of Rule 12(b)(1) motions:
(i) facial motions and (ii) fact-based motions.” Nicholas v.
Trump, 433 F. Supp. 3d 581, 586 (S.D.N.Y. 2020); see also
Carter v. HealthPort Techs., LLC, 822 F.3d 47, 56 (2d Cir.
2016) (“A Rule 12(b)(1) motion challenging subject matter
jurisdiction may be either facial or fact-based.”).
“A facial Rule 12(b)(1) motion is one based solely on the
allegations of the complaint or the complaint and exhibits
attached to it.” Nicholas, 433 F. Supp. 3d at 586 (cleaned
up). “A plaintiff opposing such a motion bears no evidentiary
burden.” Id. “Instead, to resolve a facial Rule 12(b)(1) motion,
a district court must determine whether the complaint and its
exhibits allege facts that establish subject matter jurisdiction.”
Id. “And to make that determination, a court must accept
the complaint's allegations as true and draw all reasonable
inferences in favor of the plaintiff.” Id.
“Alternatively, a defendant is permitted to make a fact-
based Rule 12(b)(1) motion, proffering evidence beyond the
complaint and its exhibits.” Nicholas, 433 F. Supp. 3d at
586 (quoting Carter, 822 F.3d at 57). “In opposition to such
a motion, a plaintiff must come forward with evidence of
their own to controvert that presented by the defendant, or
may instead rely on the allegations in their pleading if the
evidence proffered by the defendant is immaterial because it
does not contradict plausible allegations that are themselves
sufficient to show standing.” Id. (cleaned up). “If a defendant
supports his fact-based Rule 12(b)(1) motion with material
and controverted extrinsic evidence, a district court will need
to make findings of fact in aid of its decision as to the subject
matter jurisdiction.” Id.
B. Rule 12(b)(6)
To survive a Rule 12(b)(6) motion to dismiss, the complaint's
factual allegations must be enough to elevate the plaintiff's
right to relief above the speculative level. Bell Atl. Corp.
v. Twombly, 550 U.S. 544, 555 (2007). So while legal
conclusions can provide a framework for the complaint,
they must be supported with meaningful allegations of fact.
Ashcroft v. Iqbal, 556 U.S. 662, 679 (2009). In short, a
complaint must contain “enough facts to state a claim to relief
that is plausible on its face.” Twombly, 550 U.S. at 570.
To assess this plausibility requirement, the court must accept
as true all of the factual allegations contained in the complaint
and draw all reasonable inferences in the non-movant's favor.
Erickson v. Pardus, 551 U.S. 89, 94 (2007). In doing so,
the court generally confines itself to the facts alleged in
the pleading, any 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) (quoting Concord Assocs., L.P. v. Ent. Props.
Tr., 817 F.3d 46, 51 n.2 (2d Cir. 2016)).
IV. DISCUSSION
*6 As an initial matter, plaintiff is pro se. So his filings
must be held to less stringent standards. Ahlers v. Rabinowitz,
684 F.3d 53, 60 (2d Cir. 2012). As the Second Circuit has
repeatedly warned, documents filed pro se “must be construed
liberally with ‘special solicitude’ and interpreted to raise the
strongest claims that [they] suggest[ ].” Hogan v. Fischer, 738
F.3d 509, 515 (2d Cir. 2013) (quoting Hill v. Curcione, 657
F.3d 116, 122 (2d Cir. 2011)).
Broadly construed, plaintiff's amended complaint alleges that
the NYSTA (and the named defendants) violated his civil
rights by writing him up in a series of three job counseling
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memos (called JCMs) that led to formal charges of discipline
and, eventually, an unsatisfactory job performance rating.
The amended complaint and a review of the supporting
documentation establishes that plaintiff was issued the JCMs
for repeatedly failing to wear a cloth face mask or other
face covering inside certain NYSTA facilities and designated
common areas in violation of the NYSTA's COVID-19
policies.
Plaintiff contends the JCMs were issued in an irregular and/or
improper manner and violated a reasonable accommodation
he had received based on his medical condition. According to
plaintiff's amended complaint, these and other, related actions
amounted to discrimination based on his disability, sex, and/
or retaliation.
Notably, plaintiff's amended complaint describes
two different reasonable accommodations: a medical
accommodation he received vis-à-vis the COVID-19
protocols and an earlier, religious accommodation he received
shortly after beginning his employment at NYSTA.
In particular, plaintiff alleges that he has a sincere religious
belief that requires him to maintain facial hair and/or a
beard. Am. Compl. at 14. The pleading alleges that when a
supervisor told him he would need to shave his facial hair for
a respirator fit test, he sought and received an accommodation
that excused him from shaving or from taking the respirator
fit test. 4 Id.
Importantly, however, there is no indication that the events
described in the rest of plaintiff's complaint have anything
to do with the accommodation that excused him from the
facial-hair / fit-test requirements. Even broadly construed, the
allegations about this religious accommodation are entirely
distinct from the COVID-19 policy requirement to wear non-
fitted disposable masks or other cloth face coverings while
still maintaining his facial hair.
Wearing a non-fitted, disposable mask—not shaving his facial
hair or fit-testing a respirator—is the requirement imposed by
the COVID-19 protocol(s) about which plaintiff complains.
Thus, because there is no possible religious-liberty claim that
might attach to this fact pattern, the Court will not address
this issue further. Instead, the rest of this opinion focuses on
the reasonable accommodation plaintiff received vis-à-vis the
COVID-19 protocols. 5
*7 Plaintiff's amended complaint purports to assert federal
claims under the ADA, Title VII, the U.S. Constitution, 42
U.S.C. § 1983, 18 U.S.C. §§ 241, 242, 351(e), and 28 U.S.C.
§ 4101.
A. The ADA
The ADA is divided into five separate titles: Employment
(Title I), Public Services (Title II), Public Accommodations
(Title III), Telecommunications (Title IV), and Miscellaneous
Provisions (Title V). Mary Jo C. v. N.Y. State & Local Ret.
Sys., 707 F.3d 144, 169 (2d Cir. 2013).
The first three titles are the big ones. Together, they work
to “forbid[ ] discrimination against persons with disabilities
in three major areas of public life: employment, which is
covered by Title I ...; public services, programs, and activities,
which are the subject of Title II; and public accommodations,
which are covered by Title III.” Tennessee v. Lane, 541 U.S.
508, 516–17 (2004). But Title V often comes up in litigation,
too, since it protects people from retaliation, interference,
coercion, or intimidation for engaging in any of the activities
protected by the statute itself. 42 U.S.C. § 12203(a)–(b).
Plaintiff's allegations relate to his employment with the
NYSTA, a New York State agency. ADA claims against a
public employer implicate Title I and Title V. See, e.g., Mary
Jo C., 707 F.3d at 171 (limiting discrimination claims by
public employees to Title I); Emmons v. City Univ. of N.Y.,
715 F. Supp. 2d 394, 410 (E.D.N.Y. 2010) (noting that Title
V concerns retaliation).
The problem for plaintiff is that the Eleventh Amendment
shields New York State (and its constituent agencies, such as
the NYSTA) from suit under these provisions of the ADA.
This is because “state governments and their agencies may
not be sued in federal court unless they have waived
their Eleventh Amendment immunity or there has been a
valid abrogation of that immunity by Congress.” Jackson
v. Battaglia, 63 F. Supp. 2d 214, 219–20 (N.D.N.Y. 2014)
(citation omitted).
With respect to these ADA claims in particular, “Congress has
never abrogated New York's sovereign immunity from claims
under Title I and V of the ADA and New York has never
waived it.” Quadir v. N.Y. State Dep't of Labor, 39 F. Supp.
3d 528, 537 (S.D.N.Y. 2014).
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This immunity extends to “state officials at those agencies
working on behalf of the state (i.e., in their official capacities),
Emmons, 715 F. Supp. 2d at 406, and will bar a plaintiff's
claim “regardless of the type of relief sought,” Morales v. New
York, 22 F. Supp. 3d 256, 258 (S.D.N.Y. 2014). Consequently,
ADA claims asserted against New York State, its agencies, or
its officials under Title I or Title V are barred by the Eleventh
Amendment. Davis v. Vt., Dep't of Corr., 868 F. Supp. 2d 313,
322 (D. Vt. 2012).
Plaintiff's amended complaint also asserts these claims
against high-ranking and/or supervisory NYSTA officials
in their personal and official capacities. To the extent that
plaintiff alleges these ADA claims against the individual
defendants in their personal capacities, those claims must
be dismissed because neither Title I nor Title V provide
for individual liability in the employment context. See, e.g.,
Spiegel v. Schulmann, 604 F.3d 72, 79–80 (2d Cir. 2010) (per
curiam).
*8 Plaintiff's amended complaint also names these
individual defendants in their official capacities. Under
limited circumstances, a plaintiff can pursue an “official-
capacity” claim against a public official using a doctrine
called Ex parte Young, which evades the Eleventh
Amendment's bar to suit. Frantti v. New York, 2017 WL
922062, at *5 (N.D.N.Y. Mar. 8, 2017). But the doctrine is a
narrow one: the plaintiff must plausibly allege (1) an ongoing
violation of federal law; and (2) seek relief that can properly
be characterized as forward-looking; i.e., prospective. Marino
v. City Univ. of N.Y., 18 F. Supp. 3d 320, 333 (E.D.N.Y. 2014).
The problem here is that even broadly construed, the amended
complaint describes, at most, completed violations of the
ADA. Plaintiff filed this action in April of 2022, but the
most recent significant event described with any detail in his
amended complaint is the February 8, 2021 “unsatisfactory”
rating that caused plaintiff to miss out on a promotion or pay
raise. See, e.g., Am. Compl. ¶ 95. And as of this writing, the
State has rescinded the relevant COVID-19 protocols, so there
is no existing NYTSA policy (that caused him these specific
harms) which could be enjoined.
Thus, to the extent plaintiff has asserted claims under Title I
or Title V of the ADA against NYSTA or against the named
individual defendants in either their official or personal
capacities, those claims must be dismissed as barred by
sovereign immunity. 6
B. The Rehabilitation Act 7
The Rehabilitation Act is a body of federal disability law
that is available to plaintiff. Although the amended complaint
does not reference this statute, the Rehabilitation Act of
1973 provides an avenue for possible relief against a state
employer. Quadir, 39 F. Supp. 3d at 537 (construing pro
se complaint as raising disability-related claims under the
Rehabilitation Act).
New York has waived sovereign immunity on these claims.
Quadir, 39 F. Supp. 3d at 537. “Like the ADA, the
Rehabilitation Act prohibits disability-based discrimination,
but it applies specifically to government agencies and other
recipients of federal funds.” Frantti v. New York, 414 F. Supp.
3d 257, 285 (N.D.N.Y. 2019) (citation omitted).
“[T]he Rehabilitation Act imports the discrimination
standards of Title I of the ADA and the retaliation standards
of Title V.” Quadir, 39 F. Supp. 3d at 537; Kelly v. N.Y.
State Office of Mental Health, 200 F. Supp. 3d 378, 390
(E.D.N.Y. 2016) (“Although its terms are broadly drawn,
the Rehabilitation Act incorporates the standards of the
[ADA].”).
As an initial matter, however, any Rehabilitation Act claims
against the individual defendants—whether in their personal
capacities or their official ones—must be dismissed. Frantti,
2017 WL 922062, at *4 (collecting cases dismissing these
claims as redundant where claims could proceed directly
against the state entity-employer). Instead, these claims must
be asserted directly against plaintiff's employer: the NYSTA.
1. Discrimination & Accommodation
To make out a prima facie claim of employment
discrimination against the NYSTA under the Rehabilitation
Act, a plaintiff must allege (1) his employer is subject to
the Act; (2) he was disabled within the meaning of the Act;
(3) he was qualified to perform the essential functions of
his job, with or without a reasonable accommodation; and
(4) he suffered an adverse employment action because of
his disability. Larnard v. McDonough, 578 F. Supp. 3d 371,
382 (W.D.N.Y. 2022). A failure-to-accommodate claim works
much the same way, but just substitutes the fourth element
with the question of whether the employer has refused to
make a reasonable accommodation. Woolf v. Strada, 949 F.3d
89, 93 (2d Cir. 2020).
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*9 The Act borrows its definition of “disability” from
the ADA. Larnard, 578 F. Supp. 3d at 383. The ADA
defines a “disability” as any “physical or mental impairment
that substantially limits one or more major life activities.”
42 U.S.C. § 12102(1)(A). 8 Still, though, “[n]ot every
impairment is a ‘disability’ within the meaning of the ADA.”
Capobianco v. City of N.Y., 422 F.3d 47, 56 (2d Cir. 2005).
Instead, there are two requirements: (1) the impairment must
limit a “major life activity” and (2) the limitation must be
“substantial.” Id.
As to the first requirement, major life activities include
core physical functions like walking, standing, lifting, and
other common activities such as reading, concentrating, and
working. 42 U.S.C. § 12102(2)(A). As to the second, an
impairment qualifies as a disability “if it substantially limits
the ability of an individual to perform a major life activity
as compared to most people in the general population.” 29
C.F.R. § 1630.2(j)(ii).
In 2008, Congress amended the ADA “to make clear that
the substantial-limitation requirement in the definition of
‘disability’ is not an exacting one.” Woolf, 949 F.3d at 94.
Even so, “[n]ot every impairment that affects an individual's
major life activities is a substantially limiting impairment.”
B.C. v. Mt. Vernon Sch. Dist., 837 F.3d 152, 160 (2d Cir. 2016)
(cleaned up). As the Circuit has explained, “in assessing
whether a plaintiff has a disability, [courts] have been careful
to distinguish impairments which merely affect major life
activities from those that substantially limit those activities.”
Id.
Upon review, plaintiff has not plausibly alleged that he
suffered from any disability, or was regarded as having or
suffering from a disability, under the Rehabilitation Act. In
fact, a liberal reading of plaintiff's amended complaint does
not even permit the inference that he was “disabled” at all.
Plaintiff repeatedly points out that he received doctor's notes
from “two licensed physicians,” but these notes do not relieve
a plaintiff, even a pro se one, from the need to plausibly
allege facts tending to establish a qualifying disability. That is
especially so where, as here, the doctor's notes do not identify
any particular disability.
Instead, these notes only say that plaintiff was allowed “to
not wear a mask as long as [he] was social distancing.” Am.
Compl. ¶ 17; see also Pl.’s Opp'n, Dkt. No. 39 at 3. In his
opposition, plaintiff contends that he also suffers from high
blood pressure. Pl.’s Opp'n at 11. But the mere fact of a
diagnosis is not enough to establish a qualifying disability,
either. Weiss v. Cnty. of Suffolk, 416 F. Supp. 3d 208, 214
(E.D.N.Y. 2018) (“[N]ot every impairment is a disability.”).
To plausibly allege a disability-discrimination claim, the
plaintiff needs to allege facts tending to show that he was
substantially limited in his ability to perform a major life
activity, or that his employer mistakenly regarded him as
being so limited in one or more of those areas. See, e.g.,
Murphy v. United Parcel Serv., Inc., 527 U.S. 516, 521–22
(1999) (explaining contours of the “regarded as” provision). 9
*10 Plaintiff has not done so. Other than noting that
his accommodation request involved the provision of extra
personal protective equipment (“PPE”) because he suffers
from a “sporadic runny nose,” plaintiff has not alleged that
he suffered limitations in his ability to work his job at the
NYSTA at all. Pl.’s Opp'n at 3.
Notably, plaintiff's claim(s) hinge upon the allegation he was
subjected to COVID-19 workplace protocols that, both on
its face and as applied, affected the other employees in his
workplace, too. This is true of both the Safety Gram and the
Wellness Survey requirements.
This kind of fact pattern; i.e., mistreatment based on a broadly
applicable policy, is ordinarily insufficient to raise a plausible
discrimination claim. See, e.g., Niles v. N.Y. City Human Res.
Admin., 2024 WL 496345, at *6 (E.D.N.Y. Feb. 8, 2024);
(finding same); Newell v. State Univ. of N.Y. Westchester
Cmty. Coll., 2023 WL 4082030, at *4 (S.D.N.Y. June 20,
2023) (same).
In short, plaintiff has not plausibly alleged a disability-
discrimination claim under the Act. Kosiba v. Catholic Health
Sys., 2022 WL 21784010, at *7 (E.D.N.Y. Nov. 18, 2022)
(Report & Recommendation) (finding same where plaintiff's
ADA claims were based on an objection to workplace
masking policy imposed during COVID-19 pandemic).
2. Hostile Work Environment
“Because the ADA echoes and expressly refer to Title VII,
and because the two statutes have the same purpose—
the prohibition of illegal discrimination in employment—
it follows that disabled Americans should be able to assert
hostile work environment claims under the ADA.” Fox v.
Costco Wholesale Corp., 918 F.3d 65, 74 (2d Cir. 2019)
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(cleaned up); Kelly, 200 F. Supp. 3d at 399 (assuming
that a hostile work environment was actionable under the
Rehabilitation Act).
To make out a hostile work environment claim, a plaintiff
must plausibly allege that (1) the harassment was sufficiently
severe or pervasive to alter the conditions of his employment;
and (2) a specific basis exists for imputing the objectionable
conduct to the employer.” Fox, 918 F.3d at 74. “Although the
victim must subjectively perceive the conduct as abusive, the
misconduct shown also must be severe or pervasive enough to
create an objectively hostile or abusive work environment.”
Id. (cleaned up).
“A plaintiff alleging a hostile work environment claim,
therefore, must demonstrate either that a single incident was
extraordinarily severe, or that a series of incidents were
sufficiently continuous and concerted to have altered the
conditions of [his] working environment.” Fox, 918 F.3d at
74.
Upon review, this claim fails because plaintiff has not
plausibly alleged that he suffered from a disability, which is
a prerequisite to stating a hostile-work-environment claim in
the disability context. Kelly, 200 F. Supp. 3d at 399–400. Even
assuming otherwise, this claim would still fail. To be sure,
plaintiff subjectively believed his working conditions to be
hostile. See, e.g., Dkt. No. 39 at 12 (“The assault took place
while the Plaintiff was actively using the urinal, which, in the
mind of the Plaintiff, makes the assault sexual in nature.”).
But subjective beliefs are not enough. In short, plaintiff has
not plausibly alleged that, individually or collectively, the
conditions described in the amended complaint might be
considered objectively severe or pervasive.
3. Retaliation
*11 The Rehabilitation Act prohibits retaliation against
employees for their opposition to practices made unlawful by
the Act. Kelly, 200 F. Supp. 3d at 402. To make out a prima
facie case of retaliation, a plaintiff must show that (1) he
engaged in an activity protected by the Act; (2) the employer
was aware of this activity; (3) the employer took adverse
action against him; and (4) a causal connection exists between
the alleged adverse action and the protected activity. Vale v.
Great Neck Water Pollution Control Dist., 80 F. Supp. 3d 426,
438 (E.D.N.Y. 2015); Zuro v. Town of Darien, 432 F. Supp.
3d 116, 126 (D. Conn. 2020).
Upon review, plaintiff's retaliation claim or claims must
be dismissed. “It is well established that seeking a
reasonable accommodation for a disability constitutes
protected activity.” Laface v. E. Suffolk Boces, 349 F.
Supp. 3d 126, 129 (E.D.N.Y. 2018) (cleaned up). And even
if the disability at issue is not one within the meaning
of the Rehabilitation Act, an employee's request for an
accommodation can still qualify as protected activity if it is
made in good faith. Id.
In addition, the three JCMs, the formal disciplinary charges,
and the unsatisfactory job performance rating (that caused
plaintiff to miss out on a regularly scheduled promotion)
qualify as “adverse actions,” at least for the purpose of a
motion to dismiss. 10
Even so, plaintiff has not plausibly alleged causation between
any of his conduct and one or more of these events. “A
causal connection in retaliation claims can be shown either
(1) indirectly, by showing that the protected activity was
followed closely by discriminatory treatment, or through
other circumstantial evidence such as disparate treatment
of fellow employees who engaged in similar conduct; or
(2) directly, through evidence of retaliatory animus directed
against the plaintiff by the defendant.” Natofsky, 921 F.3d at
353 (cleaned up).
There are two, related reasons that plaintiff has not plausibly
established causation. First, plaintiff's amended complaint
alleges that the mask policy and the wellness survey
implemented by the NYSTA applied equally to his co-
workers. Second, the accommodation that plaintiff received
on this topic did not exempt him from mask wearing.
Instead, the NYSTA provisioned him extra masks, required
them to be carried on his person at all times, and stated
that they must be worn in common areas and when social
distancing could not be achieved. This accommodation
language even lines up with the language from plaintiff's
doctor's notes. The amended complaint's allegations, taken
at face value, indicate that plaintiff received the three JCMs
for repeatedly violating this accommodation language and the
COVID-19 policy, not for engaging in “protected activity”
under the Rehabilitation Act.
Although plaintiff characterizes the incidents in the complaint
as not actually violating the policy (e.g., when defendant Blais
caught him without a mask in the men's bathroom, or when he
was written up for not wearing a mask inside a larger garage
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space), the question of whether employee conduct violated a
policy is separate from the question of whether an employee
has engaged in any “protected activity” for a retaliation claim.
Cf. Johnson v. Maximus Servs., LLC, 2023 WL 5612826, at *4
(E.D.N.Y. Aug. 30, 2023) (concluding pro se plaintiff could
not plausibly allege causation “because she refused to comply
with the COVID-19 policy, not because she opposed it”).
*12 As other district courts considering similar fact
patterns have noted, a plaintiff who is “demonstrably at
risk” of being disciplined for legitimate reasons prior to
engaging in protected activity cannot “rely solely on temporal
proximity” to establish retaliation. Evans v. N.Y. City Dep't
of Educ., 2023 WL 8034449, at *8 (S.D.N.Y. Nov. 20,
2023) (concluding same where plaintiff opposed workplace
COVID-19 mandates).
C. Title VII
Title VII “prohibits employment-related discrimination on
the basis of race, color, religion, sex, or national origin
and retaliation against employees who complain about
discrimination.” Tassy v. Buttigieg, 51 F.4th 521, 529 (2d Cir.
2022) (citation omitted); see also Bostock v. Clayton County,
590 U.S. 644, 649 (2020).
Upon review, plaintiff's amended complaint does not
plausibly allege that NYSTA's workplace mask requirement,
wellness survey requirement, or its enforcement of those
COVID-19 policies against him, made any distinction based
on one or more of the immutable or other characteristics
protected by the statute; e.g., his sex, race, or religion. Nor has
plaintiff plausibly alleged that similarly situated individuals
outside of one of these protected classes were treated better
than him vis-à-vis these COVID-19 policies.
To the extent that plaintiff has attempted to allege a sexual
harassment or “assault” claim based on his alleged interaction
with defendant Blais, who observed plaintiff not wearing
a mask in the men's bathroom and then reported it to a
supervisor, that allegation is insufficient to plausibly allege
this—or any other—kind of Title VII claim as a matter of
law. Dkt. No. 39 at 12 (“The assault took place while the
Plaintiff was actively using the urinal, which, in the mind of
the Plaintiff, makes the assault sexual in nature.”).
D. U.S. Constitution & 42 U.S.C. § 1983
Plaintiff's amended complaint also asserts claims under
several provisions of the U.S. Constitution and 42 U.S.C.
§ 1983. Am. Compl. at 7. Notably, however, “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 other words, § 1983 is just the procedural mechanism used
by a plaintiff to maintain a lawsuit based on a violation of
a constitutional right. Id. Accordingly, plaintiff's allegations
under § 1983 and the U.S. Constitution must be considered
together. 11
1. Fourth Amendment
The Fourth Amendment provides in relevant part that
“[t]he right of the people to be secure in their persons,
houses, papers, and effects, against unreasonable searches and
seizures, shall not be violated.” U.S. Const. amend. IV. These
restrictions have been incorporated against the States through
the Due Process Clause of the Fourteenth Amendment. City
of Ontario v. Quon, 60 U.S. 746, 750 (2010); Mapp v. Ohio,
367 U.S. 643 (1961).
*13 Upon review, any § 1983 claim based on this general
body of law must be dismissed. Broadly construed, plaintiff
has attempted to assert a § 1983 false imprisonment claim,
or perhaps a § 1983 excessive force claim, against Blais,
the defendant identified by plaintiff as “confining” him or
“assaulting” him.
Plaintiff alleges that on October 1, 2020, he was at a urinal in
the men's bathroom when defendant Blais entered the room
and ordered plaintiff “to put a mask on.” Am. Compl. ¶ 17.
Plaintiff responded to Blais that he had two doctor's notes that
allowed him “to not wear a mask as long as [he] was social
distancing.” Id. Blais reported this to his supervisor. Id. ¶¶ 27,
31.
These allegations do not plausibly establish the kind of
“confinement” that would state a § 1983 false imprisonment
claim. Elsewhere, plaintiff makes reference to the fact that
defendant Blais “assaulted” him by, among other things,
“puffing his chest,” “rushing” plaintiff, and “raising his voice
in an aggressive manner,” Am. Compl. ¶ 23, but a review of
those allegations lead to the conclusion that they do not state
a plausible claim for relief under this general body of federal
law, either.
Putting a plaintiff in imminent fear of harm might give rise
to one or more state-law claims, which plaintiff may re-file
in state court.
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2. Sixth Amendment
The Sixth Amendment provides in relevant part that: “[i]n all
criminal prosecutions, the accused shall enjoy the right ... to
be confronted with the witnesses against him.” U.S. Const.
amend. XI. This restriction has been incorporated against
the States through the Due Process Clause of the Fourteenth
Amendment. Pointer v. Texas, 380 U.S. 400 (1965).
Upon review, any § 1983 claim based on this general body
of law must be dismissed. Broadly construed, plaintiff alleges
that defendants violated this right by generating false or
inaccurate JCMs and enforcing discipline against him based
on testimony for which he was not present and did not receive
an opportunity to challenge in a meaningful way. Pl.’s Opp'n
at 15.
The problem with this argument is that, at best, the JCMs
are entirely civil or administrative in nature. The right to
confront a witness “face-to-face,” Coy v. Iowa, 487 U.S. 1012,
1017 (1988), the right to a “meaningful” cross-examination,
Alvarez v. Ercole, 763 F.3d 223, 229–30 (2d Cir. 2014),
and the other rights emanating from the Sixth Amendment's
Confrontation Clause do not protect civil litigants or those
facing purely administrative discipline, even from a public
employer. Turner v. Rogers, 564 U.S. 431, 441 (2011) (“[T]he
Sixth Amendment does not govern civil cases.”).
In a civil or administrative setting, the Due Process Clause
does protect a much more limited version of these rights,
which will be discussed below.
3. Bills of Attainder & Ex Post Facto Laws
Plaintiff's amended complaint also references Article I,
Section 9, Clause 3 of the U.S. Constitution, which states that
“[n]o Bill of Attainder or ex post facto Law shall be passed.”
A “bill of attainder” is “a law that legislatively determines
guilt and inflicts punishment upon an identifiable individual
without provision of the protections of a judicial trial.”
Reynolds v. Quiros, 990 F.3d 286, 295 (2d Cir. 2021) (quoting
Nixon v. Admin. of Gen. Servs., 433 U.S. 425, 468 (1977)).
*14 But plaintiff has not identified a particular statute or
provision that would offend this constitutional provision.
Broadly construed, plaintiff appears to allege that the JCMs
and the statutory basis on which he received the bad job
performance rating violate this restriction.
However, those provisions do not operate as a bill of attainder
because, among other things, they preserve the right to
administratively appeal (which plaintiff did) and can be
challenged in other settings, such as in a state-court petition.
In short, there is no indication that the JCMs, the Safety Gram
about masking, the Wellness Survey, the formal discipline, or
the unsatisfactory rating “fall[ ] within the historical meaning
of legislative punishment.” ACORN v. United States, 618 F.3d
125, 136 (2d Cir. 2010).
The Ex Post Facto Clause applies to government actions that
“make[ ] more burdensome the punishment for a crime, after
its commission.” Barna v. Travis, 239 F.3d 169, 171 (2d Cir.
2001). “A criminal or penal law is ex post facto when it is:
(1) retrospective, and (2) more onerous than the law in effect
on the date of the offense.” United States v. Ramirez, 846
F.3d 615, 619 (2d Cir. 2017). But any claim based on this
constitutional provision would fail for the same basic reasons
that plaintiff's Sixth Amendment challenge has failed: he was
not subjected to any criminal process.
4. Due Process
Plaintiff's amended complaint has not identified the Due
Process Clause of the Fourteenth Amendment, but his
complaints about improper procedures and/or discipline
might fit under this constitutional rubric.
The Due Process Clause protects procedural and substantive
rights. Page v. Cuomo, 478 F. Supp. 3d 355, 370 (N.D.N.Y.
2020). Procedural due process requires that “a deprivation of
life, liberty, or property be preceded by notice and opportunity
for hearing appropriate to the nature of the case.” Cleveland
Bd. of Educ. v. Loudermill, 470 U.S. 532, 542 (1985).
“To assert a violation of procedural due process rights, a
plaintiff must first identify a property right, second show that
the state has deprived him of that right, and third show that
the deprivation was effected without due process.” Ferreira v.
Town of E. Hampton, 56 F. Supp. 3d 211, 225 (E.D.N.Y. 2014)
(citation omitted). “Notice and an opportunity to be heard are
the hallmarks of due process.” Id.
Upon review, any procedural due process claim would
fail. Assuming that plaintiff enjoyed a state-created interest
(whether it is a property right in the pay raise or in a positive
performance rating or perhaps a more generalized liberty
interest in his good workplace reputation), the amended
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complaint indicates that he received constitutionally adequate
pre-deprivation process.
In particular, plaintiff alleges that he received a written notice
that he was being charged with misconduct for repeatedly
violating the COVID-19 policies in accordance with the terms
of the parties’ collective bargaining agreement. Am. Compl.
at 103; Am. Compl. ¶ 87. This letter explained that a hearing
would be conducted on the charge. Id. Thereafter, plaintiff,
after consulting with a union representative and hiring his
own lawyer, entered into a stipulation in which he agreed to
plead guilty to the charges and pay a fine. Am. Compl. at 101–
102; Am. Compl. ¶¶ 87–94.
*15 The Second Circuit has repeatedly held that this kind
of pre-deprivation notice, combined with a grievance process
set forth in a collective bargaining agreement, satisfies the
demands of procedural due process. See, e.g., Adams v.
Suozzi, 517 F.3d 124, 128 (2d Cir. 2008). Under those
circumstances, a plaintiff can still seek relief in a § 1983
procedural due process claim, but only if he can plausibly
“establish that the grievance procedures in a collective
bargaining agreement are an inadequate remedy.” Id. at 129.
Plaintiff has not done so. He has not identified any
shortcoming in this contractually defined grievance process
that might raise constitutional concerns. Notably, the
unsatisfactory job rating that plaintiff received was issued for
the one-year period during which he pleaded guilty to these
misconduct charges.
To the extent that plaintiff sought to challenge that
determination directly, the amended complaint alleges that he
also had an opportunity to appeal that determination. In fact,
his pleading alleges that he pursued an administrative appeal
of that bad job rating to the NYSTA.
Where, as here, the deprivation occurred pursuant to an
established state procedure, the state can foresee when
the deprivation will occur and is in a position to provide
a pre-deprivation hearing. King v. N.Y. City Emp. Ret.
Sys., 212 F. Supp. 3d 371, 401 (E.D.N.Y. 2016). Under
those circumstances, the mere availability of post-deprivation
process will not necessarily satisfy due process. See id.
Importantly, however, a pre-deprivation hearing is not always
necessary to pass constitutional muster. There is no indication
that this rating system causes the kind of serious or
significant deprivation of a state-created interest (e.g., a
termination of employment) that would necessarily require
a further pre-deprivation hearing beyond the notice-and-
hearing process that already occurred on the underlying
charges of misconduct. 12
In sum, plaintiff has not plausibly alleged a violation of his
procedural due process rights in light of the alleged fact that
he (1) received written notice of impending discipline based
on the three JCMs; (2) participated in a counseled hearing
process on those accusations; (3) did not contest the validity
of the JCMs in that setting but rather pleaded guilty; and,
as a result (4) later received an unsatisfactory job rating for
that time period, which he (5) also administratively appealed.
Cf. Kieffer v. N.Y. State Thruway Auth., 522 N.Y.S.2d 747,
749 (3d Dep't 1987) (rejecting due process claim based on
unsatisfactory rating).
To the extent plaintiff's amended complaint might be
understood to raise a substantive due process claim, it must
also be dismissed. Substantive due process protects against
government action that is “arbitrary, conscience shocking,
or oppressive in a constitutional sense,” but not against
official conduct that is merely “incorrect or ill-advised.”
Page, 478 F. Supp. 3d at 371 (citation omitted). In other
words, “substantive due process rights are violated only by
conduct ‘so outrageously arbitrary as to constitute a gross
abuse of governmental authority.’ ” Puckett v. City of Glen
Cove, 631 F. Supp. 2d 226, 237 (E.D.N.Y. 2009) (quoting
Natale v. Town of Ridgefield, 170 F.3d 258, 263 (2d Cir.
1999)). There is no such outrageous conduct alleged here.
5. Equal Protection
*16 Plaintiff's amended complaint has not identified the
Equal Protection Clause of the Fourteenth Amendment,
either. But again, his complaints about improper discipline
imposed upon him by his public employer might fit under this
constitutional rubric.
The Equal Protection Clause of the Fourteenth Amendment
provides that no State shall “deny to any persons within its
jurisdiction the equal protection of the laws.” U.S. Const.
amend. XIV, § 1. This constitutional provision is “essentially
a direction that all persons similarly situated be treated alike.”
City of Cleburne v. Cleburne Living Ctr., Inc., 473 U.S. 432,
439 (1985). “There are a number of common methods for
pleading an equal protection claim.” Kisembo v. N.Y. State
Office of Children & Family Servs., 285 F. Supp. 3d 509, 523
(N.D.N.Y. 2018).
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First, “[a] plaintiff could point to a law or policy that
‘expressly classifies persons on the basis of race.’ ” Floyd
v. City of N.Y., 959 F. Supp. 2d 540, 570 (S.D.N.Y. 2013)
(quoting Brown v. City of Oneonta, 221 F.3d 329, 337 (2d Cir.
1999)).
Second, “a plaintiff could identify a facially neutral law or
policy that has been applied in an intentionally discriminatory
manner.” City of Oneonta, 221 F.3d at 337 (citing Yick Wo v.
Hopkins, 118 U.S. 356, 373–74 (1886)).
Third, “[a] plaintiff could also allege that a facially neutral
statute or policy has an adverse effect and that it was
motivated by discriminatory animus.” Floyd, 959 F. Supp. 2d
at 570 (citation omitted).
Under any one of these three theories, a plaintiff “must
prove purposeful discrimination directed at an identifiable or
suspect class.” Giano v. Senkowski, 54 F.3d 1050, 1057 (2d
Cir. 1995) (cleaned up); see also Keles v. Davalos, 642 F.
Supp. 3d 339, 366–67 (E.D.N.Y. 2022).
Plaintiff has not done any of that. However, even “[w]here
there is no allegation of membership in a protected class, the
plaintiff may still prevail on either a ‘class of one’ or ‘selective
enforcement’ theory.” Brown v. Griffin, 2019 WL 4688641,
at *4 (S.D.N.Y. Sept. 25, 2019).
Pursuant to Village of Willowbrook v. Olech, 528 U.S. 562
(2000), a plaintiff may assert a “class of one” claim by
alleging that “they were intentionally treated different from
others similarly situated and that there was no rational basis
for this difference in treatment.” Doe v. Vill. of Mamaroneck,
462 F. Supp. 2d 520, 558 (S.D.N.Y. 2006).
Alternatively, pursuant to LeClair v. Saunders, 627 F.2d
606 (2d Cir. 1980), a plaintiff may assert a “selective
enforcement” claim by showing that they were treated
differently based on impermissible considerations such as
race, religion, intent to inhibit or punish the exercise of
constitutional rights, or malicious or bad faith intent to injure
a person. Savino v. Town of Southeast, 983 F. Supp. 2d 293,
301 (S.D.N.Y. 2013) (citations omitted).
Measured against these theories, there is no indication that
plaintiff has a viable § 1983 Equal Protection claim. There
is not even a whiff of any class-based animus from any of
the named defendants. Nor is there any hint that any of the
defendants treated plaintiff differently than his peers based on
any constitutionally impermissible criteria.
E. Other Federal Statutes
Plaintiff's amended complaint also purports to assert claims
under 18 U.S.C. §§ 241, 242, 351(e) and 28 U.S.C. § 4101.
Am. Compl. at 7. But plaintiff cannot bring claims under those
federal statutes because they do not create any causes of action
that can be pursued by private plaintiffs.
*17 First, a private plaintiff cannot pursue a claim under the
criminal statutes found in Title 18 of the United States Code.
“It is a truism, and has been for many decades, that in our
federal system crimes are always prosecuted by the Federal
Government, not ... by private complaints.” Conn. Action
Now, Inc. v. Roberts Plating Co., 457 F.2d 81, 86–87 (2d Cir.
1972). Consequently, the Second Circuit has repeatedly held
that there is no private right of action under Title 18 of the
U.S. Code. See, e.g., Storm-Eggink v. Gottfried, 409 F. App'x
426, 427 (2d Cir. 2011) (summary order) (collecting cases).
Second, 28 U.S.C. § 4101 does not create a cause of
action, either. This provision contains definitions, including
a definition of “defamation,” in the context of a statute that
allows actions recognizing foreign defamation judgments.
“Although the tort of defamation is a well-recognized cause
of action under state common law, federal law does not
create a general cause of action or provide a basis for federal
question jurisdiction for defamation.” Thomas v. Brasher-
Cunning ham, 2020 WL 4284564, at *10 (D. Conn. July 27,
2020) (collecting cases).
F. State-Law Claims
Broadly construed, plaintiff's amended complaint also asserts
various common law tort claims, or perhaps breach of contract
claims. Those claims arise under state law. But the basis for
jurisdiction in this forum is federal question, since all the
parties are from New York.
“Where, as here, a plaintiff's federal claims will be
dismissed before trial, a district court should generally decline
to exercise supplemental jurisdiction over any state law
claims absent exceptional circumstances.” B.A. v. City of
Schenectady Sch. Dist., 209 F. Supp. 3d 515, 528 (N.D.N.Y.
2016). There are no exceptional circumstances presented in
this case. Accordingly, plaintiff's state law claims will be
dismissed without prejudice.
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G. Leave to Amend
The final question is whether plaintiff should be given leave
to amend his pleading, which he has already amended once as
of right. “Generally, leave to amend should be freely given,
and a pro se litigant in particular should be afforded every
reasonable opportunity to demonstrate that he has a valid
claim.” Matima v. Celli, 228 F.3d 68, 81 (2d Cir. 2000)
(cleaned up). Even so, “it is well established that leave to
amend a complaint need not be granted where amendment
would be futile.” Ellis v. Chao, 336 F.3d 114, 127 (2d Cir.
2003).
After considering the matter, plaintiff will not be given
further leave to amend because the problems with his claims
are substantive—they involve an objection to progressive
discipline arising from his non-compliance with COVID-19
policies that applied generally to NYSTA employees.
Plaintiff has not plausibly alleged that the discipline
he received—which came after notice and a hearing in
accordance with his collective bargaining agreement—was
incompatible with the reasonable accommodation he received
regarding the COVID-19 face mask policy (as opposed to
the facial hair or respirator fit test accommodation he had
previously received).
Notably, plaintiff might well have a viable state-law claim
based on these facts, perhaps for some violation of the
collective bargaining agreement or for a breach of some other
contractual relationship with his employer. But those are
questions for state court. Because plaintiff cannot sustain any
cognizable federal claims based on this fact pattern, leave to
amend those claims would be futile. Cuoco v. Moritsugu, 222
F.3d 99, 112 (2d Cir. 2000). Accordingly, leave to amend must
be denied.
V. CONCLUSION
*18 Plaintiff's amended complaint must be dismissed.
Liberally construed, he has failed to plausibly allege
any cognizable federal claims against any of the named
defendants. The Court's decision today does not preclude
plaintiff from re-filing his state-law claims in state court.
Therefore, it is
ORDERED that
1. Defendants’ motion to dismiss (Dkt. No. 32) is
GRANTED;
2. Plaintiff's amended complaint is DISMISSED without
leave to amend;
3. Plaintiff's federal-law claims are DISMISSED with
prejudice; and
4. Plaintiff's state-law claims are DISMISSED without
prejudice.
IT IS SO ORDERED.
All Citations
Not Reported in Fed. Supp., 2024 WL 1053222
Footnotes
1 Plaintiff has also filed a number of his own motions: he moved for summary judgment against defendant
Boehm, Dkt. No. 40, a declaratory judgment, Dkt. No. 41, summary judgment against defendant Post, Dkt.
No. 42, filed a letter motion requesting that defendants’ motion to dismiss be rejected, Dkt. No. 47, summary
judgment against defendants Naples, Oaksford, and Millan, Dkt. No. 48, and declaratory judgment, Dkt. No.
49. Those motions have been held in abeyance pending a decision on this motion to dismiss. Dkt. No. 46.
2 The amended complaint includes numbered paragraphs, but only as to certain allegations on certain pages.
Citations to unnumbered facts are found on the pages corresponding to the CM/ECF header.
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3 The Court is reluctant to consider this kind of extraneous material on a motion to dismiss, but the cited
material—in particular, the date and content of this document—are integral to plaintiff's claims. Notably, the
substance of this document appears in the pleading, too. Am. Compl. ¶ 17.
4 Plaintiff alleges that an NYSTA employee named Chris Dulong “was also involved in disciplinary issues
regarding facial hair and fit testing requirements” and was later terminated. Am. Compl. at 15–16. Plaintiff
does not allege that he was terminated or disciplined for his facial hair or for the fit testing requirement.
5 Even assuming plaintiff intended to assert this kind of claim, any such claim would fail. See, e.g.,
Vanwyckhouse v. Tessy Plastics, 2023 WL 5452819, at *4 (N.D.N.Y. Aug. 24, 2023) (D'Agostino, J.) (rejecting
religious discrimination claim based on COVID-19 workplace masking policy).
6 This is a Rule 12(b)(1) dismissal. Morales, 22 F. Supp. 3d at 268 (“A claim that is barred by a state's sovereign
immunity must be dismissed pursuant to the Eleventh Amendment for lack of subject matter jurisdiction.”).
7 If one or more of plaintiff's ADA claims might have proved viable under Ex parte Young, they would still fail
for the reasons explained in this discussion of the Rehabilitation Act.
8 An alternative way to satisfy the ADA's definition of “disability” is with a showing that the plaintiff was “regarded
as” having a disability. 42 U.S.C. § 12102(1)(C). This provision sweeps more broadly than the principal
definition of a disability: it extends to conduct related to any “actual or perceived physical or mental impairment
whether or not the impairment limits or is perceived to limit a major life activity.” § 12102(3)(A).
9 On a motion to dismiss, the elements of a plaintiff's prima facie case are not treated as an evidentiary burden
but are useful as “an outline of what is necessary to render a plaintiff's employment discrimination claims for
relief plausible.” Sosa v. N.Y. City Dep't of Educ., 368 F. Supp. 3d 489, 495 (E.D.N.Y. 2019) (citation omitted).
10 However, the myriad other slights identified by plaintiff do not qualify. See, e.g., Tepperwien v. Entergy
Nuclear Operations, Inc., 663 f.3d 556, 568–72 (2d Cir. 2011) (holding that investigatory sessions, counseling,
threats of termination, hostile behavior during meetings, being made to come to work on a day off under false
pretenses, and being switched to a night shift did not qualify).
11 Section 1983 claims asserted directly against New York State, the NYSTA, or the individual defendants in
their official capacities are subject to dismissal on the basis of Eleventh Amendment immunity for essentially
the same reasons explained supra. But a § 1983 individual-capacity claim is still available against a state actor
for his “personal involvement” in a constitutional harm. So these claims are construed against the individual
defendants in their personal capacities.
12 Under these circumstances, the availability of a post-deprivation procedure, with an Article 78 proceeding
in state court being the big one, would be more than sufficient. “Article 78 of the New York Civil Practice
law, an amalgam of the common law writs of certiorari to review, mandamus, and prohibition,” Hellenic Am.
Neighborhood Action Comm. v. City of N.Y., 101 F.3d 877, 811 (2d Cir. 1996), “provides the mechanism for
challenging a specific decision of a state administrative agency,” Campo v. N.Y. City Emp. Ret. Sys., 843
F.2d 96, 101 (2d Cir. 1988).
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Besley v. Borden, Not Reported in Fed. Supp. (2022)
© 2025 Thomson Reuters. No claim to original U.S. Government Works. 1
2022 WL 1128556
Only the Westlaw citation is currently available.
United States District Court, W.D. New York.
Jeffrey S. BESLEY, Plaintiff,
v.
Brianna BORDEN, City of
Elmira Police Officer, Defendant.
21-CV-06754 DGL
|
Signed 04/15/2022
Attorneys and Law Firms
Jeffrey S. Besley, Attica, NY, Pro Se.
ORDER
DAVID G. LARIMER, United States District Judge
*1 Pro se Plaintiff, Jeffrey S. Besley, a prisoner currently
confined at the Marcy Correctional Facility (“Marcy”), filed
this action seeking relief under 42 U.S.C. § 1983. Docket
Item 1. He alleged that (1) he was falsely arrested and
subjected to an unlawful search by City of Elmira Police
Officer Brianna Borden in violation of his rights under the
Fourth Amendment to the United States Constitution and (2)
his parole was revoked by the New York State Department of
Corrections and Community Supervision (“DOCCS”) based
on that unlawful arrest. Id.
The Court granted Plaintiff permission to proceed in forma
pauperis and, under 28 U.S.C. §§ 1915(e)(2)(B) and 1915A,
screened the Complaint. The Court (1) dismissed with
prejudice Plaintiff's claims against the City of Elmira Police
Department and DOCCS, (2) substituted the City of Elmira
as a Defendant in the place of the City of Elmira Police
Defendant and directed that Officer Borden be added to the
caption of this action as a defendant, (3) dismissed Plaintiff's
false arrest and unlawful search claims against the City of
Elmira and Officer Borden without prejudice and with leave
to amend, and (4) dismissed Plaintiff's claims related to his
parole revocation under authority of Heck v. Humphrey, 512
U.S. 477 (1994). Docket Item 5 (“Screening Order”).
Plaintiff timely filed an Amended Complaint against Officer
Borden only alleging false arrest and an unlawful search
in violation of the Fourth Amendment. Docket Item 6. The
Court again screens Plaintiff's Amended Complaint using
the 28 U.S.C. §§ 1915(e)(2)(B) and 1915A criteria. Having
reviewed the Amended Complaint, it is dismissed with
prejudice pursuant to 28 U.S.C. §§ 1915(e)(2)(B)(ii) and
1915A.
DISCUSSION
Section 1915 “provide[s] 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) 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).
I. THE AMENDED COMPLAINT
In evaluating a complaint, the court must accept all factual
allegations as true and must draw all inferences in the
plaintiff's favor. See Larkin v. Savage, 318 F.3d 138, 139
(2d Cir. 2003) (per curiam); King v. Simpson, 189 F.3d 284,
287 (2d Cir. 1999). “Specific facts are not necessary,” and
the plaintiff “need only ‘give the defendant fair notice of
what the ... claim is and the grounds upon which it rests.’ ”
Erickson v. Pardus, 551 U.S. 89, 93 (2007) (quoting Bell Atl.
Corp. v. Twombly, 550 U.S. 544, 555 (2007)); see also Boykin
v. Keycorp, 521 F.3d 202, 216 (2d Cir. 2008) (discussing
pleading standard in pro se cases after Twombly: “even
after Twombly, dismissal of a pro se claim as insufficiently
pleaded is appropriate only in the most unsustainable of
cases.”). Although “a court is obliged to construe [pro se]
pleadings liberally, particularly when they allege civil rights
violations,” McEachin v. McGuinnis, 357 F.3d 197, 200 (2d
Cir. 2004), even pleadings submitted pro se must meet the
notice requirements of Rule 8 of the Federal Rules of Civil
Procedure. Wynder v. McMahon, 360 F.3d 73, 79 n.11 (2d Cir.
2004).
*2 The Amended Complaint names only Officer Borden
alleging false arrest and an unlawful search – the very claims
he was permitted to amend. Docket Item 6. The Amended
Complaint, like the original Complaint, is bare-bones and,
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again, alleges no facts supporting plausible claims. Liberally
construed, it alleges the following. On April 13, 2021,
between 6:00-6:30 p.m., Plaintiff was arrested by Officer
Border for the criminal offense of Burglary in the Second
Degree. Officer Borden did not “Mirandize[ ]” Plaintiff,
question him, or obtain a search warrant for his apartment. He
was arrested at “18:13,” presumably 6:13 p.m., and formally
charged at “21:17,” presumably 8:17 p.m. Id. at 5. Borden was
told that due to a conflict of interest she could not be involved
in Plaintiff's arrest, but she failed to report it. Plaintiff states
he was never convicted “of the alleged crime.” Id. He seeks
$600,000 in damages for lost wages, mental anguish, and pain
and suffering. Id. at 6.
In sum, Plaintiff alleges that he was falsely arrested for the
criminal offense of Burglary in the Second Degree and that
Borden did not provide him Miranda warnings 1 and searched
his apartment without a warrant. Docket Item 1 at 5.
A. False Arrest
“A claim for false arrest under § 1983 looks to state law as
a starting point to determine the elements of [the] claim....”
Potter v. Port Jervis Police Dep't, No. 19-CV-10519 (CM),
2020 WL 528823, at *4 (S.D.N.Y. Feb. 3, 2020). Under New
York law, a plaintiff claiming false arrest 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. (alteration omitted and
quoting Liranzo v. United States, 690 F.3d 78, 95 (2d Cir.
2012)). “An arrest is privileged if it is based on probable
cause.” Id. (citing Jenkins v. City of New York, 478 F.3d 76,
84 (2d Cir. 2007) (“The existence of probable cause to arrest
constitutes justification and is a complete defense to an action
for false arrest.” (internal quotation marks omitted)). “In
general, probable cause to arrest exists when the officers have
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.” Weyant v. Okst, 101
F.3d 845, 852 (2d Cir. 1996).
The Court, based on essentially the same allegations now
asserted in the Amended Complaint, found that the original
Complaint alleged no facts suggesting that there was a lack
of probable cause for Plaintiff's arrest but granted Plaintiff
an opportunity to amend this claim to allege, if the facts
supported it, the lack of probable cause for his arrest. Docket
Item 5 at 8-9.
The Amended Complaint again fails to state a claim of false
arrest. It alleges only that Officer Borden did not question
him and that she had a conflict of interest. Docket Item 1 at
5. Plaintiff fails to allege that Officer Borden did not have
probable cause to arrest him and thus fails to state a plausible
claim of false arrest in violation of the Fourth Amendment.
The fact that he was not convicted of the offense for which
he was arrested, 2 Docket Item 6 at 6, does not alter this
conclusion.
*3 Further, as noted in the Screening Order, Docket Item
5 at 10, to the extent that Plaintiff may be alleging that the
unlawful search led to his arrest and, thus, the arrest was
unlawful, said claim does not set forth a cognizable false
arrest claim because the “fruit of poisonous the tree” doctrine
applied in criminal cases to exclude evidence derived from
an unlawful act – e.g., an unlawful search or seizure – does
not apply to § 1983 actions. See Tinsdale v. Hartley, 442
F. Supp. 3d 569, 573 (W.D.N.Y. 2020) (citing, inter alia,
DiMascio v. City of Albany, 205 F.3d 1322 (2d Cir. 2000)
(table decision, unpublished text available on WESTLAW
under 2000 WL 232053, at *1)) (“We have held ... that the
fruit of the poisonous tree doctrine is inapplicable to civil §
1983 actions.” (internal quotation marks omitted)).
B. Unlawful Search
Plaintiff again alleges that Officer Borden did not obtain
a warrant to search his apartment. Liberally construed,
this alleges an unlawful search in violation of the Fourth
Amendment. Because the original Complaint did not set forth,
in any way, the circumstances of the search or even what
was searched and what was found during the search, the
Court found that this claim failed to state a plausible claim
for relief and had to be dismissed unless Plaintiff filed an
amended complaint alleging the circumstances of the search
and stating a plausible Fourth Amendment violation. Docket
Item 5 at 10-12. The Amended Complaint, however, again
fails to allege a plausible violation of the Fourth Amendment
– Plaintiff alleges only that Borden did not obtain a warrant.
The Fourth Amendment protects “[t]he right of the people
to be secure in their persons, houses, papers, and effects,
against unreasonable searches and seizures ...,” and further
provides that “no Warrants shall issue, but upon probable
cause ...” Const. amend IV; see also United States v. Barner,
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666 F.3d 79, 82 (2d Cir. 2012) (“The Fourth Amendment
protects the right of private citizens to be free from
unreasonable government intrusions into areas where they
have a legitimate expectation of privacy.”) (quoting United
States v. Newton, 369 F.3d 659, 664 (2d Cir. 2004)). “Based
on this constitutional text, the Court has repeatedly held that
searches conducted outside the judicial process, without prior
approval by a [a] judge or [a] magistrate [judge], are per se
unreasonable ... subject only to a few specifically established
and well-delineated exceptions.” City of Los Angeles, Cal.
v. Patel, 576 U.S. 409, 419 (2015) (internal quotation marks
omitted) (quoting Arizona v. Gant, 556 U.S. 332, 338 (2009)).
“In analyzing a claim for unlawful search and seizure under
the Fourth Amendment, courts look to the reasonableness
of the search when determining whether a search violated a
plaintiff's constitutional rights.” Hatcher v. City of New York,
15-CV-7500 (VSB), 2018 WL 1583036, at *7 (S.D.N.Y. Mar.
27, 2018) (citing Terry v. Ohio, 392 U.S. 1, 9 (1968) (“[T]he
Constitution forbids ... not all searches and seizures, but
unreasonable searches and seizures” (quoting Elkins v. United
States, 364 U.S. 206, 222 (1960))). Because the Amended
Complaint, like the original Complaint, sets forth no facts
relating to the search, e.g., whose “apartment” was searched,
when did the search occur, what led to the search, did the
search precede the arrest or was the arrest based on the
search, etc., the Court has no basis upon which to analyze the
reasonableness of the search or whether one of the exceptions
to the Fourth Amendment's warrant requirement apply to the
search at issue.
As addressed in the Screening Order, one such exception
is a search incident to an arrest. Alexander v. City of New
York, 17 Civ. 3170 (LGS), 2019 WL 5887300, at * 5
(S.D.N.Y. Nov. 8, 2019) (“While a search typically requires a
warrant to be reasonable, the search incident to arrest doctrine
is an exception to the warrant requirement of the Fourth
Amendment.”) (citing United States v. Diaz, 854 F.3d 197,
205 (2d Cir. 2017)); see also United States v. DeJesus, 538 F.
Supp. 3d 382, 389 (S.D.N.Y. 2021) (“One of the ‘specifically
and well-delineated exceptions’ pertains to persons who have
been paroled from a sentence of imprisonment and who, as
a condition of such parole, have been required to submit
their person or property to search without a search warrant.
Parolees, like probationers, have significant[ly] diminished
expectation of privacy.”) (citing Samson v. California, 547
U.S. 843, 848-49 (2006)). Without knowing any of the
circumstances of the search, the Court simply cannot analyze
either whether the search without a warrant was unreasonable
or whether the search was executed pursuant to one of the
exceptions to the Fourth Amendment's warrant requirement.
*4 Accordingly, Plaintiff's unlawful search claim is
dismissed with prejudice because it fails to state a plausible
claim upon which relief can be granted.
CONCLUSION
For the reasons discussed above, the Amended Complaint is
dismissed with prejudice pursuant to 28 U.S.C. §§ 1915(e)
(2)(B)(ii) and 1915A. Plaintiff is forewarned that his right
to pursue further relief in federal court at public expense
will be greatly curtailed if he has three actions or appeals
dismissed under the provisions of 28 U.S.C. §§ 1915(e)(2)(B)
and 1915A. See 28 U.S.C. § 1915(g).
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 (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.
IT IS SO ORDERED.
All Citations
Not Reported in Fed. Supp., 2022 WL 1128556
Footnotes
1 The Court previously dismissed any claim premised on Officer's Borden failure to advise Plaintiff of his rights
under Miranda v. Arizona, 384 U.S. 436 (1966), because the Second Circuit Court has explicitly held that
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a plaintiff cannot sustain a section 1983 claim based on such a failure. Neighbor v. Covert, 68 F.3d 1508,
1510 (2d Cir. 1995). The United States Supreme Court has granted certiorari to address this issue. Vega v.
Tekoh, 21-499 (Jan. 14, 2022) (Mem).
2 Based on parole revocation records attached to the original Complaint, Plaintiff's parole release was revoked
based on a finding that Plaintiff broke into and stole the property from someone in a room in the rooming
house where he lived. The Board of Parole placed a hold on Plaintiff to his original sentence's maximum
expiration date. The Board concluded that a parole revocation is not precluded even though the criminal
charge, which was the basis for the revocation, was dismissed. This finding was affirmed by the Board of
Parole's Appeals Unit and Plaintiff's request for reconsideration was denied. Docket Item 1 at 8-10.
End of Document © 2025 Thomson Reuters. No claim to original U.S. Government Works.
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Bronnenberg v. Eggar, Not Reported in Fed. Supp. (2019)
© 2025 Thomson Reuters. No claim to original U.S. Government Works. 1
2019 WL 13260183
Only the Westlaw citation is currently available.
United States District Court, D. Wyoming.
Tami Mae BRONNENBERG, Plaintiff,
v.
Beau J. EGGAR, Arresting Officer; William K.
Struemke, Attorney; Sara L. Struemke, Secretary;
Servicm Legal Services, LLC; Marlin D. Richardson,
DC; Big Horn Basin Chiropractic; City of Cody;
Park County Detention Center; Board of County
Commissioners of the County of Park; Defendants.
Case No. 19-CV-21-SWS
|
Signed February 25, 2019
Attorneys and Law Firms
Tami Mae Bronnenberg, Cody, WY, Pro Se.
Adrian K. Kowalski, Wyoming Attorney General, Cheyenne,
WY, for Defendant Beau J. Egger.
ORDER ON 28 U.S.C. § 1915 SCREENING
OF AMENDED COMPLAINT
Scott W. Skavdahl, United States District Judge
*1 This matter comes before the Court on Ms.
Bronnenberg's pro se Amended 1983 Civil Rights Complaint
Pursuant to 42 USCS § 1983 (Doc. 9), filed on February 14,
2019. Because Ms. Bronnenberg seeks to proceed in forma
pauperis in this action without the prepayment of fees (Doc.
2), the litigation process generally begins with the Court
screening her amended complaint under 28 U.S.C. § 1915.
See Buchheit v. Green, 705 F.3d 1157, 1161 (10th Cir. 2012)
(noting that prompt screening, even for cases involving non-
prisoners, “may be a good thing and conserve the resources
of defendants forced to respond to baseless lawsuits”). Ms.
Bronnenberg's original civil rights complaint was dismissed
without prejudice upon initial screening for failure to state
a plausible claim upon which relief could be granted. (Doc.
5.) She then sought and received leave to file this amended
complaint (Docs. 6, 7), which the Court now screens.
LAW
Section 1915(e)(2)(B) requires a district court to dismiss the
case whenever the court determines the action “fails to state a
claim on which relief may be granted or seeks monetary relief
against a defendant who is immune from such relief.” See
Merryfield v. Jordan, 584 F.3d 923, 926 (10th Cir. 2009). For
§ 1915 screening purposes, the Court accepts the Plaintiff's
allegations as true and construes all reasonable inferences
drawn from those allegations in the light most favorable to
the Plaintiff. See Kay v. Bemis, 500 F.3d 1214, 1217-18 (10th
Cir. 2007).
DISCUSSION
The underlying basis for Ms. Bronnenburg's amended civil
rights complaint seems to be an allegation that Defendant
Beau Eggar 1 , a law enforcement officer at the relevant time,
arrested her on January 31, 2017, on an invalid arrest warrant
despite her attempts to explain to him why it was invalid.
(Doc. 9 at pp. 3-4.) It appears she was released from detention
less than an hour after being booked, ostensibly because the
arrest warrant had indeed been canceled. (Id.) As for the
other defendants, she alleges generally that they are somehow
also responsible for her arrest and they conspired together to
wrongfully arrest her.
1. Ms. Bronnenburg has stated a plausible § 1983 claim
for false arrest/false imprisonment under the Fourth
Amendment against Defendant Beau Egger.
Officer Eggar “was relying on” an arrest warrant as his
basis for arresting Ms. Bronnenburg. (Doc. 9 at p. 3.)
Attached as “Exhibit A” to her amended complaint is an
“Order Vacating Warrant and Resetting Previously Scheduled
Hearing,” entered by the state district judge of the Fifth
Judicial District of Wyoming. (Doc. 9 at p. 11.) It was
entered on January 17, 2017, and it ordered “that the Warrant
issued January 9, 2017 in this matter is vacated.” (Id.) Ms.
Bronnenburg alleges she showed this order to Officer Eggar
at the time he arrested her on January 31, 2017, to convince
him not to execute the arrest warrant, but he ignored her and
arrested her anyway. (Doc. 9 at pp. 3-4, 5.) Nowhere in her
amended complaint does Ms. Bronnenburg suggest the arrest
warrant on which Officer Eggar relied was somehow invalid
on its face (see generally Doc. 9), but its facial validity can be
reasonably questioned at this point, particularly considering
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that the order vacating the warrant had been filed two weeks
prior to Ms. Bronnenburg's arrest.
*2 Generally, an officer executing an arrest warrant that
is valid on its face enjoys absolute immunity (also known
as “quasi-judicial immunity”). “Just as judges acting in their
judicial capacity are absolutely immune from liability under
section 1983, official[s] charged with the duty of executing
a facially valid court order enjoy[ ] absolute immunity from
liability for damages in a suit challenging conduct prescribed
by that order.” Moss v. Kopp, 559 F.3d 1155, 1163 (10th Cir.
2009) (alterations in original) (quoting Turney v. O'Toole, 898
F.2d 1470, 1472 (10th Cir. 1990)). However, to be entitled to
this absolute immunity, “the judge issuing the disputed order
must be immune from liability in his or her own right, the
officials executing the order must act within the scope of their
own jurisdiction, and the officials must only act as prescribed
by the order in question.” Id. The amended complaint does
not suggest whether these absolute-immunity requirements
are or are not met. But construing Ms. Bronnenburg's alleges
as true and making all reasonable inferences in her favor, as
the Court must do at this preliminary stage, the Court finds a
plausible claim of false arrest/false imprisonment in violation
of the Fourth Amendment has been stated in the amended
complaint, and the question remains whether Officer Eggar is
entitled to absolute immunity from that claim.
2. Ms. Bronnenburg has not stated any other plausible §
1983 claims against Officer Eggar or against any other
defendant.
Ms. Bronnenburg's “Cause of Action” section in her amended
complaint attempts to assert several other claims against
Officer Eggar and the other defendants, but those allegations
do not create viable claims under 42 U.S.C. § 1983 for several
reasons.
First, there is no due process claim stated in connection
with her false arrest/false imprisonment because there is
no allegation that legal process was ever instituted against
Ms. Bronnenburg. Indeed, her amended complaint suggests
she was released about an hour after booking and nothing
more ever came of it. (Doc. 9 at pp. 3-4.) Thus, there is no
due process violation stated in her amended complaint. See
Mondragon v. Thompson, 519 F.3d 1078, 1083 (10th Cir.
2008) (explaining that a false arrest/false imprisonment claim
under the Fourth Amendment accrues during “[t]he period of
time between an unlawful arrest and the institution of legal
process,” whereas a due process claim under the Fourteenth
Amendment accrues during “[t]he period of time between the
institution of [legal] process and its favorable termination”).
Second, as to her claims of Wyoming Constitution violations,
42 U.S.C. § 1983 “applies to federal constitutional violations
and not to state constitutional violations.” Herrera v. Santa
Fe Public Schools, 41 F. Supp. 3d 1027, 1081 n.123 (D.N.M.
2014); see also Davis v. Reynolds, 890 F.2d 1105, 1109 n.3
(10th Cir. 1989) (describing a claim grounded in the state
constitution as a state law claim) (citing Pulley v. Harris, 465
U.S. 37, 41 (1983)); Brock v. Herbert, 2012 WL 1029355,
at *2 (D. Utah Mar. 26, 2012) (unpublished) (describing
alleged violations of the Utah Constitution as “exclusively
state law claims”). To state a claim under § 1983, a plaintiff
must allege the violation of a right secured by the U.S.
Constitution or federal law, West v. Atkins, 487 U.S. 42, 48
(1988); an alleged violation of state law does not amount
to a § 1983 claim. However, Ms. Bronnenburg relies on §
1983 as the basis for asserting all her claims, even naming her
complaint “Amended 1983 Civil Rights Complaint Pursuant
to 42 USCS § 1983.” (Doc. 9.) Section 1983 does not afford
Ms. Bronnenburg the right to bring state law claims in federal
court. This principle also precludes her claims alleging the
defendants violated state criminal statutes and state rules of
criminal procedure.
Third, as to her claims alleging violations of federal criminal
statutes (such as kidnapping and conspiracy to kidnap in
violation of 18 U.S.C. § 1201), “a plaintiff may not recover
civil damages for an alleged violation of a criminal statute.”
Shaw v. Niece, 727 F.2d 947, 949 (10th Cir. 1984). Criminal
statutes “do not provide for a private civil cause of action.”
Henry v. Albuquerque Police Dep't, 49 F. App'x 272, 273
(10th Cir. 2002) (unpublished) (stating that 18 U.S.C. §§ 241
and 242 do not create a private civil cause of action); see also
Diamond v. Charles, 476 U.S. 54, 64-65 (1986) (holding that
private citizens cannot compel enforcement of criminal law);
Andrews v. Heaton, 483 F.3d 1070, 1076 (10th Cir. 2007)
(“criminal statutes that do not provide for a private right of
action [ ] are [ ] not enforceable through a civil action”).
Ms. Bronnenburg's claims that the defendants violated certain
criminal statutes are not viable causes of action in this civil
lawsuit.
*3 Fourth, her claims alleging the defendants violated the
Federal Rules of Criminal Procedure are also incognizable
because “rules governing procedure in the federal courts
do not give rise to private causes of action.” Good v.
Khosrowshahi, 296 F. App'x 676, 680 (10th Cir. 2008)
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(unpublished); see also Duncan v. Jackson Energy Auth.,
No. 1:15-CV-1238-JDB-EGB, 2016 WL 4079033, at *2
(W.D. Term. June 28, 2016) (unpublished), report and
recommendation adopted, No. 15-1238, 2016 WL 4074482
(W.D. Tenn. July 29, 2016) (unpublished) (stating that
“[n]either the Federal Rules of Civil Procedure nor the
Federal Rules of Criminal Procedure provides” a plaintiff
with a private cause of action against a defendant); Heiken
v. Meeks, No. 2:17-CV-304-WKW, 2018 WL 1163467, at
*3 (M.D. Ala. Feb. 12, 2018) (unpublished), report and
recommendation adopted, No. 2:17-CV-304-WKW, 2018
WL 1157550 (M.D. Ala. Mar. 5, 2018) (unpublished)
(holding that a state's rules of criminal procedure “do not
create a private right of action for violations of the rules”).
Ms. Bronnenburg's claims that the defendants violated certain
rules of criminal procedure are not viable causes of action in
this civil lawsuit.
Fifth, as to all defendants except Officer Eggar, Ms.
Bronnenburg's claims of a mass conspiracy to kidnap or
falsely arrest her fail to state a plausible claim upon which
relief can be granted. Under the U.S. Supreme Court's
decisions in Bell Atlantic Corp. v. Twombly, 550 U.S. 544
(2007), and Ashcroft v. Iqbal, 556 U.S. 662 (2009), federal
pleading “demands more than an unadorned, the-defendant-
unlawfully-harmed-me accusation.” Gee v. Pacheco, 627
F.3d 1178, 1184 (10th Cir. 2010) (internal quotation marks
omitted). “[A] complaint must contain sufficient factual
matter, accepted as true, to state a claim to relief that is
plausible on its face.” Iqbal, 556 U.S. at 678 (internal
quotation marks omitted). “In § 1983 cases, defendants often
include the government agency and a number of government
actors sued in their individual capacities. Therefore it
is particularly important in such circumstances that the
complaint make clear exactly who is alleged to have done
what to whom, to provide each individual with fair notice
as to the basis of the claims against him or her, as
distinguished from collective allegations against the state.”
Robbins v. Oklahoma, 519 F.3d 1242, 1249–50 (10th Cir.
2008) (emphasis in original) (citing Bell Atlantic Corp.
v. Twombly, 127 S. Ct. 1955, 1970-71 n.10 (2007)). Ms.
Bronnenburg's amended complaint, however, entirely fails
to set forth any factual allegations in support of her claims
against the remaining defendants. Ms. Bronnenburg's bald
assertions, e.g., that a local attorney and a local chiropractor
conspired to have Ms. Bronnenburg falsely arrested so they
could hold her “for collections (ransom)” (Doc. 9 at p. 5), are
untethered to any supporting factual allegations and constitute
no more than speculation and conjecture, which fails to state
a plausible claim on which relief can be granted. “Conclusory
allegations of conspiracy are insufficient to state a valid §
1983 claim.” Durre v. Dempsey, 869 F.2d 543, 545 (10th Cir.
1989); see also Fuller v. Davis, 594 F. App'x 935, 939 (10th
Cir. 2014) (unpublished) (affirming the trial court's dismissal
of a § 1983 claim of conspiracy because the “plaintiff's
conjecture that [a defendant] conspired with other defendants
to create an unenforceable no-contact order is too speculative
and conclusory” to state a plausible claim for relief). Indeed,
most of Ms. Bronnenburg's allegations against the remaining
defendants consist of assertions that the defendants have
certain duties, e.g., that the local attorney is bound by
Wyoming's attorney oath, but never actually alleges those
duties were breached (let alone how they were breached). (See
Doc. 9 at pp. 6-8.) A cause of action unsupported by factual
allegations must be dismissed for failure to state a claim on
which relief may be granted.
*4 Sixth, concerning the § 1983 claims against the
governmental entities (here, the City of Cody, the Park
County Detention Center, and the Park County Board of
County Commissioners), Ms. Bronnenburg has not identified
any policy, custom, or practice as the driving force behind
the alleged constitutional violation. Section 1983 does not
allow governmental entities to be held vicariously liable
for the unlawful acts of their employees under respondeat
superior principles. See Monell v. Department of Social
Servs., 436 U.S. 658, 691 (1978). That is, they cannot
be liable solely because they employed a liable employee.
Instead, governmental entities may only be liable under §
1983 for their own unconstitutional conduct, specifically
where constitutional deprivation is inflicted pursuant to the
governmental entity's policy, custom, or practice. Monell, at
690–91, 694. “Locating a policy ensures that a municipality
[or other governmental entity] is held liable only for
those deprivations resulting from the decisions of its duly
constituted legislative body or of those officials whose acts
may fairly be said to be those of the municipality.” Board of
County Commissioners of Bryan County, Okl. v. Brown, 520
U.S. 397, 403–04 (1997).
Here, Ms. Bronnenburg did not identify any policy from
the Park County Detention Center or the Board of County
Commissioners, let alone a policy that caused her alleged
constitutional deprivation. (See Doc. 9 at p. 8.) As to the
City of Cody, Ms. Bronnenburg identified a city policy
that prohibits its employees from discriminating against or
harassing others. (Doc. 9 at p. 7.) She did not explain how
this policy caused her alleged constitutional deprivation.
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(See id.) In fact, it seems she has asserted the defendants
violated this policy and their policy violation led to her
alleged constitutional deprivation. (See id.) This is no basis
for municipal liability under § 1983, though. As noted above,
the City of Cody cannot be held liable under § 1983 for the
illegal conduct of its employees unless the city caused such
illegal conduct through a city policy, custom, or practice.
Ms. Bronnenburg's allegation here is that one or more
city employees caused her alleged constitutional violation
because they failed to follow the city's non-discrimination/
non-harassment policy, but this is the exact opposite of the
municipal liability allowed under § 1983.
Seventh and finally, Ms. Bronnenburg sued each defendant
“Individually, Personally, City AND County Officially” (sic).
(Doc. 9 at pp. 1-3 (emphasis in original).) It is reasonable to
construe this language as Ms. Bronnenburg's attempt to sue
the defendants in both their individual and official capacities.
However, official-capacity suits “generally represent only
another way of pleading an action against an entity of which
an officer is an agent.” Kentucky v. Graham, 473 U.S. 159,
165-66 (1985) (quoting Monell v. New York City Dept. of
Social Services, 436 U.S. 658, 690 n.55 (1978)). “As long as
the government entity receives notice and an opportunity to
respond, an official-capacity suit is, in all respects other than
name, to be treated as a suit against the entity. It is not a suit
against the official personally, for the real party in interest
is the entity.” Id. at 166 (internal citation omitted). Because
the Court determined above that Ms. Bronnenburg failed to
state plausible claims against the governmental entities, the
official-capacity claims must be dismissed along with those
governmental-entity claims because they are one and the
same.
3. All claims except for false arrest/false imprisonment
against Defendant Eggar are dismissed with prejudice
because further amendment would be futile.
When dismissing pro se claims for failure to state a plausible
claim upon which relief can be granted, “the district court
should allow a plaintiff an opportunity to cure technical errors
or otherwise amend the complaint when doing so would yield
a meritorious claim.” Curley v. Perry, 246 F.3d 1278, 1284
(10th Cir. 2001). “Pro se litigants are to be given reasonable
opportunity to remedy the defects in their pleadings.” Hall v.
Bellmon, 935 F.2d 1106, 1110 n.3 (10th Cir. 1991).
*5 The Court dismisses with prejudice all claims except
the false arrest/false imprisonment claim against Defendant
Eggar because Ms. Bronnenburg was previously provided
an opportunity to amend her complaint to state plausible
claims for relief. (See Doc. 5 (dismissing without prejudice
the original complaint); Doc. 7 (granting request for leave
to amend the original complaint).) Ms. Bronnenburg was
provided the opportunity to cure the deficiencies in her
original complaint and did so with regard to her false arrest/
false imprisonment claim under the Fourth Amendment
against Defendant Eggar. She has not cured her other pleading
deficiencies, though, and after two bites at the same apple, the
Court finds her repeated failures to plausibly state her other
claims do not warrant additional amendment. Consequently,
the Court concludes allowing further amendment would be
futile.
ORDER
IT IS THEREFORE ORDERED that the amended
complaint (Doc. 9) states a plausible claim upon which
relief can be granted against Defendant Beau J. Eggar
in his individual/personal capacity for false arrest/false
imprisonment in violation of the Fourth Amendment.
IT IS FURTHER ORDERED that the Clerk of Court shall
serve Defendant Beau J. Eggar, in his individual/personal
capacity, as follows:
1. The Clerk shall send Defendant Eggar a copy of the
complaint, a notice of lawsuit, and a copy of this Order
on 28 U.S.C. § 1915 Screening of Amended Complaint,
and the Clerk shall request Defendant Eggar to waive
service of a summons in the manner set forth in Fed. R.
Civ. P. 4(d); and
2. If Defendant Eggar fails to return a waiver of service
within thirty (30) days from the date on which the
request for waiver was sent, the Clerk of Court shall
issue a summons for Defendant Eggar and shall deliver
the summons (along with a copy of the complaint and
this Order) to the United States Marshal for service on
Defendant Eggar pursuant to Fed. R. Civ. P. 4(c)(3).
IT IS FURTHER ORDERED that Defendant Eggar shall
serve an answer within twenty-one (21) days of being served
the summons and complaint, or, if service of the summons is
timely waived under Fed. R. Civ. P. 4(d), then within sixty
(60) days after the date when the request for waiver was sent.
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IT IS FURTHER ORDERED that all other claims alleged in
the amended complaint are dismissed with prejudice under
28 U.S.C. § 1915(e)(2)(B)(ii).
IT IS FURTHER ORDERED that Ms. Bronnenburg's
Application to Proceed in District Court Without Prepaying
Fees or Costs (Doc. 2) is granted under 28 U.S.C. § (a).
However, “like any ifp litigant, [Ms. Bronnenburg] remains
liable for the full amount of the filing fee.” Brown v. Eppler,
725 F.3d 1221, 1231 (10th Cir. 2013); see also Robbins v.
Switzer, 104 F.3d 895, 898 (7th Cir. 1997) (“[A]ll § 1915(a)
does for any litigant is excuse the pre-payment of fees.
Unsuccessful litigants are liable for fees and costs and must
pay when they are able.”).
IT IS FINALLY ORDERED that Ms. Bronnenburg's
“Motion to Reconsideration” (Doc. 8) is denied as moot
because the Court has herein screened anew her amended
complaint.
All Citations
Not Reported in Fed. Supp., 2019 WL 13260183
Footnotes
1 Ms. Bronnenburg also spells this defendant's name as “Egger” in her amended complaint.
End of Document © 2025 Thomson Reuters. No claim to original U.S. Government Works.
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Brown v. Peters, Not Reported in F.Supp. (1997)
© 2025 Thomson Reuters. No claim to original U.S. Government Works. 1
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)
© 2025 Thomson Reuters. No claim to original U.S. Government Works. 3
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.
End of Document © 2025 Thomson Reuters. No claim to original U.S. Government Works.
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Cipriani v. Buffardi, Not Reported in F.Supp.2d (2007)
© 2025 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)
© 2025 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)
© 2025 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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Flagg v. NYS Division of Parole, Not Reported in Fed. Supp. (2019)
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2019 WL 5002215
Only the Westlaw citation is currently available.
United States District Court, N.D. New York.
Laytonia FLAGG, Plaintiff,
v.
NYS DIVISION OF PAROLE; Mark Saben,
Parole Officer; Syracuse Police Dept.; Detective
William Summers, ID#409; D.P. Proud, ID#
0140; Richard Curran, ID# 0066; William
J. Fitzpatrick, Onondaga County, District
Attorney; and Sean Chase, D.A., Defendants.
5:19-CV-886 (TJM/ATB)
|
Signed 08/15/2019
Attorneys and Law Firms
LAYTONIA FLAGG, Plaintiff pro se
ORDER and REPORT-RECOMMENDATION
ANDREW T. BAXTER, United States Magistrate Judge
*1 The Clerk has sent me an amended 1 civil rights
complaint filed by pro se plaintiff Laytonia Flagg. (Dkt. No.
3). Plaintiff Flagg has also filed an application to proceed in
forma pauperis (“IFP”). (Dkt. No. 4).
I. IFP Application
A review of plaintiff's IFP application shows that she declares
she is unable to pay the filing fee. (Dkt. No. 4). The court finds
that plaintiff meets the financial criteria for IFP status.
In addition to determining whether plaintiff meets the
financial criteria to proceed IFP, the court must also consider
the sufficiency of the allegations set forth in the complaint
in light of 28 U.S.C. § 1915, which provides that the court
shall dismiss the case at any time if the court determines that
the action is (i) 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)(i)-(iii).
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). Although the court has a duty to
show liberality toward pro se litigants, and must use extreme
caution in ordering sua sponte dismissal of a pro se complaint
before the adverse party has been served and has had an
opportunity to respond, the court still has a responsibility
to determine that a claim is not frivolous before permitting
a plaintiff to proceed. Fitzgerald v. First East Seventh St.
Tenants Corp., 221 F.3d 362, 363 (2d Cir. 2000) (finding that
a district court may dismiss a frivolous complaint sua sponte
even when plaintiff has paid the filing fee).
To survive dismissal for failure to state a claim, the complaint
must contain sufficient factual matter, accepted as true, to
state a claim that is “plausible on its face.” Ashcroft v. Iqbal,
556 U.S. 662, 129 S. Ct. 1937, 1949 (2009) (quoting Bell Atl.
Corp. v. Twombly, 550 U.S. 544, 570 (2007)). “Threadbare
recitals of the elements of a cause of action, supported by
mere conclusory statements, do not suffice.” Id. (citing Bell
Atl. Corp., 550 U.S. at 555). The court will now turn to
a consideration of the plaintiff's complaint under the above
standards.
II. Complaint
Plaintiff states that she is the mother of Mario Leslie, who at
the time of the incidents described in the complaint, was on
parole. (Amended Complaint (“AC”) at 1). 2 On August 8,
2016, defendant New York State Parole Officer (“PO”) Mark
Saben went to Mr. Leslie's home at 514 Marcellus Street in
Syracuse, New York, to conduct a “standard home visit.” 3
(Id.) Mr. Leslie lived at the Marcellus Street address with
his girlfriend, Tamacha Rodriguez. (Id.) Plaintiff claims that
Ms. Rodriguez answered the door for PO Saben, and that
Mr. Leslie was “summoned” from his bedroom to speak with
defendant Saben. (Id.) After some discussion, PO Saben was
walking toward the front door, when he spotted some glassine
packets “known to contain heroin.” (Id.) Upon discovering
the glassine packets, defendant Saben informed Mr. Leslie
that he was going to conduct a search of the entire residence
according to the conditions of his parole release. (Id.)
*2 Plaintiff states that, as a result of the subsequent
search, the officer discovered a safe, containing a loaded
firearm and $31,925 in United States currency. Defendant
Saben also discovered a key chain on which were a set
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of keys that were identified as keys to plaintiff's residence.
Plaintiff claims that “[a]t this point Sr. P.O. Rigby called the
Syracuse Police Department.” 4 (AC at 2). Plaintiff claims
that defendant Rigby spoke to Sergeant A. Llukaci, a detective
with the Syracuse Police Department, and Sergeant Llukaci
told defendants Detectives William Summers and D.P. Proud
to go to the Marcellus Street address. Plaintiff states that
upon his arrival, defendant Proud stated that he spoke to Ms.
Rodriguez, who told defendant Proud that Mr. Leslie kept
his money at his mother's apartment “although there is no
affidavit on file to attest to that assertion by the [sic] Det.
Proud.”
Defendant Summers obtained a warrant for the search of
plaintiff's home at 112 Fordham Rd. in Syracuse, New York.
(AC Ex. CM/ECF p.16-17). Plaintiff claims that she was
not home when the “Syracuse Police” and defendant Saben
arrived at her home to execute the search warrant. 5 (AC
at 2). The officers entered with the key that was found at
Mr. Leslie's Marcellus Street home. 6 (Id.) Plaintiff arrived
shortly thereafter, but was denied entrance to her home
while the search was being executed. (Id.) Plaintiff states
that the officers searched plaintiff's apartment and recovered
$40,000.00 in cash from a safe that was located in plaintiff's
bedroom closet. Plaintiff alleges that the officers confiscated
the money.
Plaintiff claims that the officers did not have probable cause
to obtain the warrant to search her home because there was
no proof that Ms. Rodriguez ever made the statement that
Mr. Leslie kept his money at his mother's house, and thus,
the warrant was obtained improperly. Plaintiff claims that her
Fourth Amendment rights were violated as the result of the
search of her apartment. Plaintiff then claims that after the
seizure of her $40,000.00, she informed defendant Assistant
District Attorney (“ADA”) Sean Chase that the money did
not belong to Mr. Leslie, and that the money was plaintiff's
savings which she would be using to purchase a new home.
(AC at 5). Plaintiff claims that ADA Chase told her that his
“office would return the illegally seized money.” (Id.)
Plaintiff states that, shortly after the incident, she also filed
a “complaint” form to complain about the police “conduct
in Plaintiff's home,” and to request the “immediate return of
the Plaintiff's money.” (Id.) Plaintiff states that the District
Attorney's Office responded to the “property release” request
only after plaintiff obtained the intervention of “a 3 rd party
(Feldman, Kramer & Monaco, P.C.)” (Id.) Plaintiff claims that
the property release form showed that the plaintiff's “legally
possessed currency was improperly forfeited along with the
monies ($31,925.00) seized at 514 Marcellus St.” (AC at 6).
Plaintiff claims that ADA Chase told plaintiff on three
separate occasions that her money was going to be returned,
but that this was a “stalling tactic” by the District Attorney's
Office. ADA Chase told plaintiff that he was waiting to
hear from Mr. Leslie's attorney “in hopes of persuading [Mr.
Leslie] to sign a forfeiture document that later became clear
to the Plaintiff that the forfeiture included what was seized at
both residences....” (AC at 6). The forfeiture document states
that Mr. Leslie stipulated to the forfeiture of $67,269.00, and
that he was not aware of any other person who claimed to
be the owner of the property. 7 (AC at 6). Plaintiff alleges
that the $40,000.00 was not Mr. Leslie's to forfeit. Plaintiff
also alleges that the amount on the stipulation of forfeiture
that Mr. Leslie signed does not account for the entire amount
seized, even though plaintiff was not given any of her money
back. Plaintiff claims that the actual amount seized, including
her $40,000.00 was $71,925.00, and that there is $4,656.00
missing from the total. (Id.) Plaintiff also claims that the
individuals who seized her money did not have the “warrant
in hand” and never gave her a receipt for the money that they
took. (AC at 7). Plaintiff states that the money taken from her
home was not specifically mentioned in any of the paperwork
that was subsequently provided to plaintiff as the result of her
inquiries. (AC at 8).
*3 Plaintiff states that she spoke to then-Chief of the
Syracuse Police, Frank Fowler, who told plaintiff that her
concerns would be “thoroughly investigated,” but then did not
provide plaintiff a report of the investigation and told plaintiff
to file a Freedom of Information request if she wished to see
the report. (Id.) Plaintiff has attached correspondence that she
received from former Chief Fowler, stating that the report had
been forwarded to him and that plaintiff could “be assured
that [Fowler would] take the proper administrative action in
this case.” (AC Ex. CM/ECF p.19).
Although the AC contains a “Second Cause of Action,”
plaintiff essentially repeats that her Fourth Amendment rights
were violated by the defendants' actions in conjunction with
the search of her home and the seizure of her money. (AC
at 8-9). Plaintiff states that she has not been afforded any
documentation that would establish probable cause to search
her home. (AC at 9). Plaintiff states that there is no connection
between her and Mr. Leslie's “illegal activities,” and there
was nothing “illegal” found in plaintiff's apartment. (Id.) In
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applying a very liberal reading of the AC, 8 the court could
interpret plaintiff's second cause of action as a Fourteenth
Amendment Due Process claim, asserting that the defendants
deprived her of her money without due process of law when
they did not return the money after she made various inquiries
and did not allow her to challenge the ownership of the money
after her son signed the waiver and stipulation.
As stated above, the plaintiff has attached various documents
as exhibits to the AC, including (1) the search warrant
issued by City Court Judge Kate Rosenthal for plaintiff's
apartment at 112 Fordham Rd. (AC Ex. CM/ECF pp.16-17);
(2) Plaintiff's Civilian Complaint Report (AC Ex. CM/ECF
p.18); a letter to plaintiff from former Chief Fowler (AC
Ex. CM/ECF p.19); a letter to plaintiff from David L.
Chaplin, II, Esq. on behalf of the Citizen Review Board
dated December 2, 2016 (AC Ex. CM/ECF p. 20); a letter
to plaintiff from Kimberly M. Osbeck, a paralegal for the
Onondaga County District Attorney's Office, dated March
6, 2018 (AC Ex. CM/ECF p. 21); a letter to plaintiff from
the Public Integrity Bureau of the New York State Attorney
General's Office (AC Ex. CM/ECF p. 22); an “Application
for Release of Property,” signed by plaintiff on November
2, 2017, together with the unsigned refusal to release
the property because the “money [was] forfeited during
[a] criminal prosecution.” (AC Ex. CM/ECF pp.23-24);
the “Waiver and Stipulation,” signed by Mr. Leslie on
February 28, 2017, relinquishing any rights to the seized
money (AC Ex. CM/ECF pp.25-26); “CNYLEADS Narrative
Supplement[s]” numbers 1-3, including an “offense page”
and a “property supplement,” detailing all the property taken
from the Marcellus St. address. (AC Ex. CM/ECF pp.27-32).
Plaintiff seeks the return of the $40,000.00 that she claims
was taken from her in August of 2016, compensatory damages
for the “Syracuse Police Department trashing Plaintiff's two
bedrooms at 112 Fordham Rd.,” damages for “five hours”
worth of lost income 9 on the day of the search, unspecified
lost income for the day that she had to appear in court, 10
and “punitive” damages for emotional pain and suffering,
including the damages for the delay in purchasing her dream
home. (Id.)
III. Eleventh Amendment/New York State Division of
Parole
A. Legal Standards
*4 The Eleventh Amendment provides that states have
immunity against suits in federal court. Pennhurst State Sch.
& Hosp. v. Halderman, 465 U.S. 89, 106 (1984). An action
against state officers in their official capacities, or an action
against an agency of the state, is tantamount to an action
against the state. Yorktown Medical Laboratory v. Perales,
948 F.2d 84, 87 (2d Cir. 1991) (official capacity actions);
Santiago v. New York State Dep't of Correctional Services,
945 F.2d 25, 28 n.1 (2d Cir. 1991) (agencies of the state).
B. Application
In this case, in addition to the individual parole officers who
were allegedly responsible for obtaining the warrant to search
her apartment, plaintiff has named the “N.Y.S. Division
of Parole.” (AC at 1). The Eleventh Amendment prevents
plaintiff from suing the N.Y.S. Division of Parole. Thus, to
the extent that plaintiff seeks to sue the agency separately
from the individual officers, the AC may be dismissed with
prejudice, but as further discussed below, plaintiff may sue
Mark Saben, one of the individuals who allegedly participated
in obtaining the warrant for her home. 11
IV. Syracuse Police Department/Municipal Liability
A. Legal Standards
Under New York law, departments, like the Syracuse
Police Department that are merely administrative arms of a
municipality, do not have a legal identity separate from the
municipality, and may not sue or be sued. Hayes v. County of
Sullivan, Nos. 07-CV-667; 09-CV-2071, 2012 WL 1129373,
at *24 (S.D.N.Y. March 30, 2012) (citing inter alia Hall v. City
of White Plains, 185 F. Supp. 2d 293, 303 (S.D.N.Y. 2002)).
B. Application
To the extent that plaintiff is suing the Syracuse Police
Department as an entity separate from the individual police
officers who were allegedly involved in obtaining the warrant
for her apartment, plaintiff may not do so. Unlike the State
of New York itself, against which a suit for damages would
be barred by the Eleventh Amendment, the City of Syracuse
could be named instead of the Syracuse Police Department.
However, the municipality itself may only be named as a
defendant in certain circumstances. In Monell v. Dep't of Soc.
Servs., 436 U.S. 658 (1978), the Supreme Court outlined
the limited circumstances under which a municipality may
be liable under Section 1983. Only when the municipality,
through the execution of its policies, actually deprives an
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individual of his constitutional rights, is it liable for the injury.
Id. at 694. To establish municipal liability, the policy must
actually cause the violation of constitutional rights; it must
be the moving force behind the violation. Id.; Dominguez v.
Beame, 603 F.2d 337, 341 (2d Cir. 1979).
*5 As it is written, the AC makes no claims that would allow
the plaintiff to name the City of Syracuse as a defendant in
this action. Plaintiff essentially complains of a single incident,
during which the officers did not act properly in obtaining a
warrant for her home and did not act properly in executing
the warrant in her case. There is no indication that plaintiff
can assert a policy or custom which would support municipal
liability based on these facts. While plaintiff may not sue the
Syracuse Police Department in any event, and while the court
will not sua sponte replace the Syracuse Police Department
with the City of Syracuse, the court does not rule out that,
upon proper pleading, plaintiff could amend her AC to assert
such a claim against the City of Syracuse.
However, plaintiff is warned that any such facts must
plausibly suggest her claim, and that simply making a
conclusory allegation of a “policy or custom” is insufficient
to assert municipal liability. Sulaymu Bey v. City of New York,
No. 17-CV-3563. 2019 WL 1434597, at *10 (E.D.N.Y. Mar.
29, 2019); Nielsen v. City of Rochester, 58 F. Supp. 3d 268,
277 (W.D.N.Y. 2014) (conclusory allegations which merely
recite the elements for stating a Monell claim are insufficient
to state a claim for municipal liability) (citing inter alia
Genovese v. Town of Southhampton, 92 F. Supp. 2d 8, 25
(E.D.N.Y. 2013)). A single incident, particularly if it involved
individuals below the policy-making, level is insufficient to
state a Monell claim. DeCarlo v. Fry, 141 F.3d 56, 61 (2d Cir.
1998). As discussed below, plaintiff may proceed against the
individual officers who she claims violated her constitutional
rights: Detective Summers, D.P. Proud; and Richard Curran.
V. Prosecutorial Immunity/Personal Involvement
A. Legal Standards
1. Prosecutorial Immunity
Prosecutors enjoy absolute immunity from suit under section
1983 in matters associated with their prosecutorial functions,
regardless of motivation. Dory v. Ryan, 25 F.3d 81, 83
(2d Cir. 1994) (prosecutorial immunity covers virtually all
acts associated with the prosecutor's function, including
conspiracies to present false evidence); Bernard v. County
of Suffolk, 356 F.3d 495 (2d Cir. 2004) (absolute immunity
shields prosecutors from suit pursuant to section 1983 for
their alleged malicious or selective prosecution as well as for
any misconduct in the presentation of evidence to the grand
jury).
Absolute immunity is defeated only when the prosecutor is
engaging in investigative functions. Bernard v. County of
Suffolk, 356 F.3d at 502-503 (citation omitted). The initiation
and pursuit of prosecution, regardless of any alleged illegality,
is protected by absolute prosecutorial immunity. Peay v.
Ajello, 470 F.3d 65, 67-68 (2d Cir. 2006). It has also been held
that a prosecutor is entitled to absolute immunity for his or her
decision not to prosecute, regardless of the motivation for that
decision. Scloss v. Bouse, 876 F.2d 287, 292 (2d Cir. 1989).
2. Personal Involvement
Personal involvement is a prerequisite to the assessment of
damages in a section 1983 case, and respondeat superior
is an inappropriate theory of liability. Richardson v. Goord,
347 F.3d 431, 435 (2d Cir. 2003). In Williams v. Smith, 781
F.2d 319, 323-24 (2d Cir. 1986), the Second Circuit detailed
the various ways in which a defendant can be personally
involved in a constitutional deprivation, and thus be subject
to individual liability.
A supervisory official is personally involved if that official
directly participated in the infraction. Id. The defendant may
have been personally involved if, after learning of a violation
through a report or appeal, he or she failed to remedy the
wrong. Id. Personal involvement may also exist if the official
created a policy or custom under which unconstitutional
practices occurred or allowed such a policy or custom to
continue. Id. Finally, a supervisory official may be personally
involved if he or she were grossly negligent in managing
subordinates who caused the unlawful condition or event. Id.
See also Iqbal v. Hasty, 490 F.3d 143, 152–53 (2d Cir. 2007)
(citing Colon v. Coughlin, 58 F.3d 865, 873) (2d Cir. 1995),
rev'd on other grounds, Ashcroft v. Iqbal, 556 U.S. 662, 678
(2009).
*6 Some courts have discussed whether all of the Colon
factors are still viable after Ashcroft. See Conklin v. County of
Suffolk, 859 F. Supp. 2d 415, 439 (E.D.N.Y. 2012) (discussing
cases). However, the court in Conklin ultimately determined
that it was unclear whether Colon had been overruled or
limited, and continued to apply the factors outlined in Colon.
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Id. In making this determination, the court in Conklin stated
that “it remains the case that ‘there is no controversy that
allegations that do not satisfy any of the Colon prongs are
insufficient to state a claim against a defendant-supervisor.’
” Id. (quoting Aguilar v. Immigration Customs Enforcement
Div. of the U.S. Dep't of Homeland Sec., 811 F. Supp. 2d
803, 815 (S.D.N.Y. 2011)). See also Jones v. Smith, No.
09-CV-1058, 2015 WL 5750136, at *8 n.6 (N.D.N.Y. Sept.
30, 2015) (discussing the use of the Colon factors absent
definitive guidance from the Second Circuit).
B. Application
Plaintiff has named the Onondaga County District Attorney,
William J. Fitzpatrick, together with one of his Assistant
District Attorneys, Sean Chase. (AC ¶ 3(c)). Plaintiff claims
that she spoke to ADA Chase “right after the seizure,” she
explained to him that the money did not belong to her son,
the money was hers, and she “produced tax returns” for
the last five consecutive years in an effort to show that
she “legally possessed the money.” (AC at 5). She claims
that “[k]nowing this,” ADA Chase told plaintiff that his
office would return the illegally seized money. (Id.) Plaintiff
claims that notwithstanding ADA Chase's statement, he did
not return the money, and allegedly “stalled” plaintiff until
her son signed the waiver of forfeiture document, which
included the total amount of money that was seized from
both residences. (AC at 6). The initiation of civil asset
forfeiture proceedings is a prosecutorial function that has
been afforded absolute immunity. See Byrne v. City of New
York, 736 Fed. App'x 263, 266 (2d Cir. 2018) (Second Circuit
precedent affords absolute immunity to government attorneys
who initiate civil suits) (quoting Spear v. Town of W. Hartford,
954 F.2d 63, 66 (2d Cir. 1992); Mangiafico v. Blumenthal, 471
F.3d 391, 395 (2d Cir. 2006)).
ADA Chase was allegedly handling the forfeiture proceeding,
and even though he did not have to initiate court proceedings
because Mr. Leslie signed the stipulation and waiver, the
document stated that “I have concluded that the District
Attorney would likely establish that the above-mentioned
property is subject to forfeiture pursuant to Article 13-A
[of the NY Civil Practice Law and Rules] and the District
Attorney would likely prevail in such a forfeiture action.” 12
(AC Ex. CM/ECF p.25). This document took the place of
an in-court forfeiture proceeding, which would have been
held pursuant to N.Y. Civ. Prac. L. & R. § 1311 (Forfeiture
Actions). Thus, ADA Chase is entitled to absolute immunity
with respect to his conduct relative to the forfeiture of the
money seized, even if plaintiff claimed that some of the
money belonged to her. 13 This is true whether ADA Chase's
conduct was proper or improper, and whether or not he was
mistaken in obtaining Mr. Leslie's waiver and stipulation of
forfeiture. Thus, to the extent that plaintiff raises due process
violations with respect to her interest in the funds, they must
be dismissed as against ADA Chase.
*7 Plaintiff has not asserted any facts against defendant
Fitzpatrick. 14 He does not appear to have been involved
in any way in obtaining the search warrant for plaintiff's
apartment, in executing the search warrant for plaintiff's
apartment, or in the forfeiture proceedings with respect to
the money seized. Thus, any claims against him individually
would fail for lack of personal involvement. If he had been
personally involved in the forfeiture, he, like ADA Chase,
would be entitled to absolute prosecutorial immunity. 15
Thus, plaintiff's amended complaint may be dismissed
with prejudice as against defendants ADA Chase and DA
Fitzpatrick.
VI. Search and Seizure
A. Legal Standards
“It is well-settled that in cases raising claims under the Fourth
Amendment of unauthorized execution of a search warrant
‘[t]he validity of the warrant must be assessed on the basis
of the information that the officers disclosed, or had a duty
to disclose, to the issuing Magistrate.’ ” Arroyo v. City of
Buffalo, No. 15-CV-753, 2018 WL 4376798, at *3 (W.D.N.Y.
Sept. 13, 2018) (quoting Velardi v. Walsh, 40 F.3d 569, 575
n. 2 (2d Cir. 1994) (internal quotation marks omitted)). A
warrant is not invalid for section 1983 purposes if it is “ ‘based
on seemingly reliable information which is later found to be
erroneous.’ ” Id. (quoting Lewis v. City of Mt. Vernon, N.Y.,
984 F. Supp. 748, 756 (S.D.N.Y. 1997)).
B. Application
Although the court has concerns about the merits of this
action, at this stage of the proceedings, the court finds that
any Fourth Amendment claims that plaintiff may have against
defendants Saben, Summers, Proud, and Curran may survive
initial review. 16 Plaintiff seems to claim that the warrant for
her home was based on false information given the court,
which plaintiff claims was the only basis for the warrant.
While it may be that a close review of the documents provided
with the amended complaint, together with any other evidence
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or argument by defendants in a properly supported dispositive
motion, may show otherwise, the court is not currently in a
position to make factual or other determinations regarding the
validity of the warrant or any other claims that plaintiff may
have regarding the search of her home.
*8 The court also notes that because of the waiver and
stipulation, signed by Mr. Leslie, there was no formal
forfeiture proceeding in New York State Court as provided
in N.Y. Civ. Prac. L. & R. § 1311. Thus, it is unclear how
the plaintiff could have challenged the forfeiture. 17 The
court also makes no findings regarding the validity of any
defenses that the defendants may assert regarding the incident
in question.
WHEREFORE, based on the findings above, it is
ORDERED, that plaintiff's motion to proceed IFP (Dkt. No.
4) is GRANTED, and it is
RECOMMENDED, that the amended complaint (Dkt.
No. 3) be DISMISSED IN ITS ENTIRETY as
against defendants N.Y.S. DIVISION OF PAROLE;
SYRACUSE POLICE DEPARTMENT; WILLIAM J.
FITZPATRICK; AND SEAN CHASE, and it is
RECOMMENDED, that to the extent that the AC may be
read as naming SGT. LLUKACI or PO RIGBY, the AC may
be dismissed WITHOUT PREJUDICE for failure to state a
claim, and it is
RECOMMENDED, that if the District Court adopts
this Recommendation, the case be returned to me
for further proceedings, including an order serving the
remaining defendants: SABEN, SUMMERS, PROUD, and
CURRAN.
Pursuant to 28 U.S.C. § 636(b)(1) and Local Rule 72.1(c), the
parties have fourteen (14) 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 FOURTEEN DAYS WILL
PRECLUDE APPELLATE REVIEW. Roldan v. Racette,
984 F.2d 85, 89 (2d Cir. 1993) (citing Small v. Sec. of Health
& Human Servs., 892 F.2d 15 (2d Cir. 1989)); 28 U.S.C. §
636(b)(1); Fed. R. Civ. P. 6(a), 6(e), 72.
All Citations
Not Reported in Fed. Supp., 2019 WL 5002215
Footnotes
1 When plaintiff filed her original complaint, the case was administratively closed due to plaintiff's failure to
comply with the filing fee requirement. (Dkt. No. 2). Prior to re-filing her motion to proceed IFP, (Dkt. No. 4),
plaintiff also filed an amended complaint, which the court will review as the operative pleading. The case was
re-opened on August 1, 2019. (Dkt. No. 6).
2 Plaintiff numbered the pages of the “Fact” section of the amended complaint at the bottom of the page.
The court will cite to the page numbers contained on the actual document. Plaintiff has attached a series of
documents as exhibits to the amended complaint which she did not number. The court will cite to the plaintiff's
exhibits (“AC Ex.”) with the page number as assigned by the court's electronic filing system (“CM/ECF”).
3 Plaintiff was not present for any of the incidents that she describes in her complaint until she arrived at
her house during the subsequent search of her property. Plaintiff appears to be taking her recitation of
the background facts from the police reports and other documents that she has attached to her amended
complaint. (AC Ex. CM/ECF pp. 16-32). The court is stating the facts as plaintiff has described them in the
amended complaint.
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Flagg v. NYS Division of Parole, Not Reported in Fed. Supp. (2019)
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4 This is the first time that another parole officer was mentioned in plaintiff's statement of facts. The court will
assume that defendant Rigby was at the residence from the beginning, but it is not completely clear from
the papers.
5 Plaintiff does not allege that PO Rigby participated in the search of her apartment.
6 Plaintiff states that the officers were in possession of the door key “prior to their actual possession of the
warrant for 112 Fordham Rd.” (AC at 2).
7 Plaintiff has attached a copy of Mr. Leslie's “Waiver and Stipulation.” (AC Ex. CM/ECF p.25-26). Plaintiff
claims that this document was obtained after she asked for the return of the money several times from the
District Attorney's Office, the Citizen Review Board, and the Syracuse Police Department. (AC at 7). When
she failed to get a “truthful” response, she contacted Feldman, Kramer & Monaco, P.C. (Id.) The document
was sent to the attorneys' office after the firm wrote a letter of inquiry. (Id.)
8 Plaintiff is pro se, and the court must interpret plaintiff's complaint liberally. Sealed Plaintiff v. Sealed
Defendants, 537 F.3d 185, 191 (2d Cir. 2008). The court considers all possible grounds for relief that plaintiff
could be raising. See Burgos v. Hopkins, 14 F.3d 787, 790 (2d Cir. 1994) (pro se papers are interpreted
liberally to raise the strongest arguments suggested therein).
9 Plaintiff states that she works from home, and could not work for the time that the officers were searching
her apartment. (AC at 10).
10 Apparently, on the day that the officers searched plaintiff's apartment, they found a “weed roach” and gave
plaintiff an appearance ticket, which was later dismissed after plaintiff appeared in court. (AC at 10). Plaintiff
seeks lost income for the time that it took to appear in court. (Id.)
11 It is unclear whether plaintiff meant to name PO Rigby as a defendant herein. He is mentioned briefly in the
body of the complaint and was apparently present during the Marcellus St. search, but is not listed in the
caption of the complaint, and plaintiff submitted no proposed summons for PO Rigby. In addition, it does not
appear from the facts as stated by plaintiff that PO Rigby was involved in obtaining the search warrant for
plaintiff's apartment, nor is it even apparent that he was present during the search of plaintiff's apartment.
Thus, plaintiff does not state any claims against PO Rigby, and to the extent that she meant to name him as
a defendant, the AC should be dismissed as against him.
12 Article 13-a is entitled “Proceeds of a Crime -Forfeiture.” N.Y. Civ. Prac. L. & R. Art. 13-a
13 Although not relevant to the court's decision because it is based on absolute immunity of the prosecutor,
regardless of whether Mr. Leslie's assertions in the document were correct, the court notes that plaintiff's
statement herein is contrary to her son's sworn assertion in the document. Plaintiff states that ADA Chase
told plaintiff that they were waiting to hear from Mr. Leslie's attorney regarding whether he was going to
sign the forfeiture document. (AC at 6). Plaintiff claims that her son signed the document “under duress.”
Plaintiff cannot assert any claims regarding her son, and in any event, her son was, by her own statement,
represented by counsel during the matter.
14 Plaintiff requests only damages, including a return of the $40,000.00 as relief in this action. She does not
seem to be asking for any form of injunctive relief. Even though plaintiff asks for a “return” of money, the
Eleventh Amendment does not “recognize a distinction ‘between monetary damages and money in which
plaintiff has a property interest.’ ” Local 851 of Internat'l Broth. of Teamsters v. Thyssen Haniel Logistics, Inc.,
90 F. Supp. 2d 237, 249-50 (E.D.N.Y. 2000) (quoting Yorktown Medical Lab., Inc. v. Perales, 949 F.2d 84,
87-88 (2d Cir. 1991)). The District Attorney could have been the proper party in a declaratory judgment under
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Flagg v. NYS Division of Parole, Not Reported in Fed. Supp. (2019)
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New York State law under N.Y. Civ. Prac. L & R. 1327 (Proceedings to Determine Adverse Claims), which
plaintiff could have filed within six months of the stipulation, signed by Mr. Leslie.
15 To the extent that the complaint could be interpreted as suing either ADA Chase or DA Fitzpatrick in their
“official capacities,” the Eleventh Amendment would bar any such suit. See Blessinger v. City of New York,
No. 17-CV-108, 2017 WL 3841873, at *1-2 (S.D.N.Y. Sept. 1, 2017) (prosecutors are entitled to Eleventh
Amendment immunity when they are acting in their prosecutorial capacity because they are acting as state
officials rather than city or county employees) (citing Peterson v. Tomaselli, 469 F. Supp. 2d 146, 157
(S.D.N.Y. 2007) and Baez v. Hennessy, 853 F.2d 73, 77 (2d Cir. 1988) (when prosecuting a criminal matter,
a district attorney in New York State represents the State not the County)).
16 Although plaintiff has included a proposed summons for Sgt. Llukaci, this individual is not listed in the caption
of the AC, nor is he included in the section of the form-AC which lists the individual Syracuse Police Officers.
(AC ¶ 3(c)) for whom she has included identification numbers. In any event, plaintiff's only allegations against
Sgt. Llukaci are that he sent defendants Proud and Summers to Mr. Leslie's Marcellus St. home after the
parole officers found contraband therein. Plaintiff does not allege that he was personally involved in any of
the conduct that she claims violated her constitutional rights. He was not at either residence and was not
involved in obtaining the allegedly invalid warrant. Thus, to the extent that plaintiff is trying to sue Sgt. Llukaci,
the AC may be dismissed as against this defendant.
17 The court does note that section 1311(7) provides that an innocent owner may challenge the forfeiture and
regain the forfeited property if the owner never received notice of the forfeiture. In addition, section 1327
provides for an “interested person” to bring a proceeding to determine adverse claims, even after the forfeiture
action was settled by stipulation. See Tupi Cambios, S.A. v. Morganthau, 48 A.D.2d 278 (1st Dep't 2008). In
Tupi Cambios, the District Attorney was the proper “defendant” in New York State Court.
End of Document © 2025 Thomson Reuters. No claim to original U.S. Government Works.
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Flagg v. NYS Division of Parole, Not Reported in Fed. Supp. (2019)
2019 WL 4963112
© 2025 Thomson Reuters. No claim to original U.S. Government Works. 1
2019 WL 4963112
Only the Westlaw citation is currently available.
United States District Court, N.D. New York.
Laytonia FLAGG, Plaintiff,
v.
NYS DIVISION OF PAROLE; Mark Saben,
Parole Officer; Syracuse Police Dept.; Detective
William Summers, ID#409; D.P. Proud, ID#
0140; Richard Curran, ID# 0066; William
J. Fitzpatrick, Onondaga County, District
Attorney; and Sean Chase, D.A., Defendants.
5:19-CV-886
|
Signed 10/08/2019
Attorneys and Law Firms
Laytonia Flagg, Syracuse, NY, pro se.
DECISION & ORDER
THOMAS J. McAVOY, Senior United States District Judge
I. INTRODUCTION
*1 This pro se action brought pursuant to 42 U.S.C. § 1983
was referred to the Hon. Andrew T. Baxter, United States
Magistrate Judge, for a Report and Recommendation pursuant
to 28 U.S.C. § 636(b) and Local Rule 72.3(c). In his Order
and Report-Recommendation dated August 15, 2019 (Dkt.
No. 7), Magistrate Judge Baxter grants Plaintiff's application
to proceed in forma pauperis, and examines the sufficiency of
the allegations set forth in the Amended Complaint (“AC”) in
light of 28 U.S.C. § 1915. He recommends that the AC (Dkt.
No. 3) be dismissed in its entirety as against defendants N.Y.S.
Division of Parole, Syracuse Police Department, William J.
Fitzpatrick, and Sean Chase; that to the extent that the AC
may be read as naming Sgt. Llukaci or PO Rigby, the AC be
dismissed without prejudice for failure to state a claim; and
that if the Court adopts these recommendations that the case
be returned to him for further proceedings, including an order
serving the remaining defendants Saben, Summers, Proud,
and Curran. No objections to the Report-Recommendation
have been filed, and the time to do so has expired.
II. DISCUSSION
After examining the record, this Court has determined that the
Order and Report-Recommendation is not subject to attack
for plain error or manifest injustice.
III. CONCLUSION
Accordingly, the Court ACCEPTS and ADOPTS the
recommendations in the Order and Report-Recommendation
(Dkt. No. 7) for the reasons stated therein. Therefore, it is
hereby
ORDERED that Plaintiff's Amended Complaint (Dkt. No. 3)
is DISMISSED IN ITS ENTIRETY as against defendants
N.Y.S. DIVISION OF PAROLE, SYRACUSE POLICE
DEPARTMENT, WILLIAM J. FITZPATRICK, and SEAN
CHASE, and it is further
ORDERED that to the extent the Amended Complaint may
be read as naming SGT. LLUKACI or PO RIGBY, it is
DISMISSED WITHOUT PREJUDICE for failure to state
a claim, and it is further
ORDERED that the case be returned to Magistrate Judge
Baxter for further proceedings, including an order serving the
remaining defendants: SABEN, SUMMERS, PROUD, and
CURRAN.
IT IS SO ORDERED.
All Citations
Not Reported in Fed. Supp., 2019 WL 4963112
End of Document © 2025 Thomson Reuters. No claim to original U.S. Government Works.
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Gonzalez v. City of New York, Not Reported in F.Supp. (1998)
© 2025 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)
© 2025 Thomson Reuters. No claim to original U.S. Government Works. 2
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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Gonzalez v. City of New York, Not Reported in F.Supp. (1998)
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End of Document © 2025 Thomson Reuters. No claim to original U.S. Government Works.
Case 3:25-cv-00103-ECC-ML Document 8 Filed 12/16/25 Page 99 of 201

Hatcher v. City of New York, Not Reported in Fed. Supp. (2018)
© 2025 Thomson Reuters. No claim to original U.S. Government Works. 1
2018 WL 1583036
Only the Westlaw citation is currently available.
United States District Court, S.D. New York.
Dominique HATCHER, Plaintiff,
v.
The CITY OF NEW YORK, a municipal entity;
and New York City Police Officers Jesus Capo,
John Paul Pennacchia (Shield #9573), and John
Doe, in their individual capacities, Defendants.
15-CV-7500 (VSB)
|
Signed 03/27/2018
Attorneys and Law Firms
Luna Droubi, Beldock Levine & Hoffman LLP, New York,
New York, Counsel for Plaintiff
Alan Howard Scheiner, Cheryl Leah Shammas, New York
City Law Department, New York, New York, Counsel for
Defendants
OPINION & ORDER
Vernon S. Broderick, United States District Judge
*1 Plaintiff Dominique Hatcher brings this action under 42
U.S.C. § 1983, alleging claims for unreasonable search and
seizure, false arrest and false imprisonment, and malicious
prosecution in violation of her Fourth and Fourteenth
Amendment rights, as well as numerous state law claims.
Before me is the motion of the City of New York (the “City”),
Police Officer Jesus Capo, and Police Officer Johnpaul
Pennacchia (together with the City, “Defendants”), to dismiss
all of the causes of action in Plaintiff's Complaint under
Federal Rule of Civil Procedure 12(b)(6).
For the reasons that follow, Defendants' motion to dismiss is
GRANTED IN PART and DENIED IN PART. Specifically,
because I find that the officers had arguable probable cause
and are thus entitled to qualified immunity as to Plaintiff's
false arrest, false imprisonment and malicious prosecution
claims under both state and federal law, Defendants' motion
to dismiss as to these claims is GRANTED. Further, because
I find that Plaintiff has not plausibly alleged claims for state
law intentional infliction of emotional distress or assault and
battery, Defendants' motion to dismiss as to those claims is
also GRANTED. Because I find that Plaintiff has plausibly
alleged a violation of her Fourth Amendment rights and
related damages with respect to her unlawful search and
seizure claims, Defendants' motion to dismiss Plaintiff's
unlawful search and seizure claims is DENIED. Further,
Defendants' motion to dismiss Plaintiff's claims against the
City is DENIED only with respect to the claim against the
City arising out of Plaintiff's state law claims of unlawful
search and seizure. All other claims against the City are
dismissed.
I. Background 1
Plaintiff alleges that on July 4, 2014, after spending time at
her mother's house in Harlem, New York, she walked from her
mother's home to her car with her two-year-old stepdaughter
and fifteen-year-old nephew. (Compl. ¶¶ 14–15.) 2 Plaintiff
put a tray of food in the backseat of her car and, around the
same time, noticed an unmarked police car pass by slowly.
(Id. ¶¶ 15–16.) After placing the tray of food in the back
seat of her car, Plaintiff took her stepdaughter and nephew
to a local store to buy a toy, stopped briefly along the way
to speak with an old neighborhood friend, purchased the toy
at the store, and walked back to her car. (Id. ¶¶ 17–19.) As
she was walking back to her car, Capo, Pennacchia, and Doe
(the “Officers”) jumped out of the unmarked police car and
Capo “aggressively shoved [Plaintiff] against the gate, pushed
her arms behind her back, and handcuffed her.” (Id. ¶¶ 20–
21.) Plaintiff's mother arrived at the location and attempted
to reason with the Officers. (Id. ¶ 22.) The Officers refused
to provide Plaintiff's mother with any information about
Plaintiff's arrest. (Id. ¶ 23.)
*2 Capo noticed that the car doors of Plaintiff's car were
locked, searched Plaintiff, took her car keys, and opened both
the doors and trunk to her car. (Id. ¶ 24.) Capo, Pennacchia,
and Doe then searched Plaintiff's car, including containers
and bags located in the car and the trunk. The Officers
found a black garbage bag in Plaintiff's trunk that contained
a box of fireworks purchased in North Carolina. (Id. ¶¶
25–26.) A second police car arrived, and the Officers put
Plaintiff in the backseat of the second police car and took
her to the police precinct, where she was fingerprinted and
searched. (Id. ¶¶ 27–28.) After spending approximately three
hours at the police precinct, Plaintiff was given a Desk
Appearance Ticket, and was told she could leave. (Id. ¶ 29.)
Pennacchia thereafter signed a criminal complaint charging
Plaintiff with violating New York Penal Law § 270.00(2)
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Hatcher v. City of New York, Not Reported in Fed. Supp. (2018)
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(b)(i) for unlawfully dealing in fireworks. 3 (Id. ¶¶ 2, 30.)
After Plaintiff made three court appearances, the charges were
dismissed on December 14, 2014. (Id. ¶ 31.)
On October 1, 2014, Plaintiff served a notice of claim on the
City of New York (the “Notice of Claim”). (Id. ¶ 33.) Plaintiff
then attended a hearing under section 50-h of the New York
General Municipal Law on March 10, 2015. (Id. ¶ 34.) The
City did not offer an adjustment or payment for her claim. (Id.
¶ 35.)
II. Procedural History
On September 22, 2015, Plaintiff filed the Complaint,
alleging causes of action under § 1983 for unreasonable
search and seizure, false arrest and false imprisonment,
and malicious prosecution all in violation of her Fourth
and Fourteenth Amendment rights, and numerous state law
claims. (See id. ¶¶ 36–57.) On January 20, 2016, Defendants
filed a pre-motion letter in anticipation of filing a motion to
dismiss, (Doc. 17), to which Plaintiff responded on January
22, 2016, (Doc. 18). I held a pre-motion conference on
Defendants' anticipated motion on February 25, 2016. (See
Dkt. Entry Feb. 25, 2016.)
In accordance with the deadlines set during that conference,
Defendants submitted their motion to dismiss on March 24,
2016. (Docs. 22–24.) Plaintiff filed her opposition on May 5,
2016, (Doc. 27), and on May 19, 2015, Defendants filed their
reply, (Doc. 29).
III. Legal Standards
A. Motion to Dismiss
To survive a motion to dismiss under Rule 12(b)(6), “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) (quoting Bell
Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). A claim
will have “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. This standard demands “more than a sheer possibility
that a defendant has acted unlawfully.” Id. “Plausibility ...
depends on a host of considerations: the full factual picture
presented by the complaint, the particular cause of action and
its elements, and the existence of alternative explanations so
obvious that they render plaintiff's inferences unreasonable.”
L-7 Designs, Inc. v. Old Navy, LLC, 647 F.3d 419, 430 (2d
Cir. 2011).
In considering a motion to dismiss, a court must accept as true
all well-pleaded facts alleged in the complaint and must draw
all reasonable inferences in the plaintiff's favor. See Kassner,
496 F.3d at 237. A complaint need not make “detailed factual
allegations,” but it must contain more than mere “labels and
conclusions” or “a formulaic recitation of the elements of a
cause of action.” Iqbal, 556 U.S. at 678 (quoting Twombly,
550 U.S. at 555). Although all allegations contained in the
complaint are assumed to be true, this tenet is “inapplicable
to legal conclusions.” Id.
B. Section 1983
*3 Section 1983 provides a civil claim for damages against
“[e]very person who, under color of any statute ... of any
State ... subjects, or causes to be subjected, any citizen ...
to the deprivation of any rights, privileges, or immunities
secured by the Constitution and laws....” 42 U.S.C. § 1983.
In other words, “[t]o state a claim under § 1983, a plaintiff
must allege that defendants violated plaintiff's federal rights
while acting under color of state law.” McGugan v. Aldana-
Bernier, 752 F.3d 224, 229 (2d Cir. 2014), cert. denied, 135 S.
Ct. 1703 (2015). Further, “in order to establish a defendant's
individual liability in a suit brought under § 1983, a plaintiff
must show ... the defendant's personal involvement in the
alleged constitutional deprivation.” Grullon v. City of New
Haven, 720 F.3d 133, 138 (2d Cir. 2013).
IV. Discussion
A. False Arrest and False Imprisonment
Defendants argue with respect to Plaintiff's claims for false
arrest and false imprisonment that the Officers had probable
cause to arrest Plaintiff. (Defs.' Mem. 2.) 4 In the alternative,
Defendants argue that the Officers are entitled to qualified
immunity. (See id. at 11–15.) Because I find that, in light of
the facts known to the Officers at the time of the arrest, an
officer of reasonable competence could have concluded that
the arrest was justified by probable cause, thus entitling the
Officers to qualified immunity, I grant Defendants' motion to
dismiss as to Plaintiff's state and federal claims for false arrest
and false imprisonment.
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1. Applicable Law
A § 1983 claim for false arrest that is alleged to have
occurred in New York is “substantially the same as a claim
for false arrest under New York law.” Gonzalez v. City of
Schenectady, 728 F.3d 149, 155 (2d Cir. 2013). Further,
“[u]nder New York law, false arrest and false imprisonment
are one and the same, and the elements for both are the
same as for a false arrest claim under § 1983.” Hershey v.
Goldstein, 938 F. Supp. 2d 491, 515 (S.D.N.Y. 2013). Under
federal and state law, a plaintiff bringing a false arrest and/
or false imprisonment claim must demonstrate 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.” Singer v. Fulton Cty. Sheriff, 63 F.3d
110, 118 (2d Cir. 1995) (citation omitted); see also Hershey,
938 F. Supp. 2d at 515.
“[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); see also Higginbotham v. City of New York,
105 F. Supp. 3d 369, 373 (S.D.N.Y. 2015) (citing Stansbury
v. Wertman, 721 F.3d 84, 89 (2d Cir. 2013)). Probable
cause exists when an 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.’ ” Jaegly, 439 F.3d at 152 (quoting
Weyant v. Okst, 101 F.3d 845, 852 (2d Cir. 1996)).
For federal false arrest claims, even in circumstances where a
preceding search is illegal, police officers may use evidence
obtained in that illegal search to establish probable cause
for an arrest. See Townes v. City of New York, 176 F.3d
138, 144–49 (2d Cir. 1999) (“The fruit of the poisonous tree
doctrine ... is inapplicable to civil § 1983 actions.”). There is
some dispute, however, as to whether this principle applies
when the underlying claim is a state, rather than federal,
false arrest claim. Compare Ostrover v. City of New York,
600 N.Y.S.2d 243, 244–35 (1st Dep't 1993) (finding that
the “fruit of an illegal search cannot give rise, in a juristic
sense, to probable cause to arrest”), Fakoya v. City of New
York, 982 N.Y.S.2d 335, 336 (2d Dep't 2014) (“Evidence
which is illegally obtained in violation of a plaintiff's rights
may not be used to establish probable cause.”), and Tetreault
v. New York, 485 N.Y.S.2d 864, 865–66 (3d Dep't 1985)
(holding that plaintiff's arrest was without justification where
troopers' observation of drug capsules in plaintiff's car was
the result of an unlawful traffic stop), with Martinez v. City
of Schenectady, 735 N.Y.S.2d 868, 872–73 (2001) (holding
that “[t]he existence of probable cause serves as a legal
justification for the arrest and an affirmative defense to the
claim” even where part of the evidence establishing probable
cause was suppressed due to the illegality of the search
yielding that evidence).
*4 Although there is some ambiguity as to whether New
York courts apply the same reasoning as Townes, qualified
immunity protects an officer “so long as he had ‘arguable
probable cause’ to arrest, which ‘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.’ ”
Dancy v. McGinley, 843 F.3d 93, 107 (2d Cir. 2016) (quoting
Escalera v. Lunn, 361 F.3d 737, 743 (2d Cir. 2004)). In other
words, arguable probable cause may be established where, “in
light of the facts known to police at the time of [the plaintiff's]
arrest, an officer of reasonable competence could have
concluded that the arrest was justified by probable cause.”
Figueroa v. Mazza, 825 F.3d 90, 99 (2d Cir. 2016) (internal
quotation marks omitted); see also Cabral v. City of New
York, 662 Fed.Appx. 11, 13 (2d Cir. 2016) (summary order)
(finding that officers were entitled to qualified immunity for
a state false arrest claim even though it was uncertain, under
New York case law, whether evidence obtained through an
unlawful search could be considered as probable cause for
an arrest). Thus, even where evidence establishing probable
cause is suppressed or found to be obtained pursuant to
an unlawful search, such evidence may nonetheless provide
“the reasonable basis necessary for qualified immunity” for
a plaintiff's state false arrest claim. Cabral, 662 Fed.Appx.
at 13 (internal quotation marks omitted); see also Gonzalez,
728 F.3d at 158 & n.4 (disposing of plaintiff's state false
imprisonment claim where officers had arguable probable
cause to arrest because “New York law grants government
officials qualified immunity on state-law claims except where
the officials' actions are undertaken in bad faith or without
a reasonable basis” (internal quotation marks omitted)).
Further, qualified immunity can be established at the pleading
stage. See Garcia v. Does, 779 F.3d 84, 97 (2d Cir. 2015)
(“The Supreme Court has made clear that qualified immunity
can be established by the facts alleged in a complaint.”).
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2. Application
Defendants claim that Plaintiff's arrest for possession of
fireworks in violation of New York Penal Law § 270.00(2)(b)
(i) was preceded by the Officers finding a box of fireworks in
the trunk of Plaintiff's car, and therefore there was probable
cause to arrest Plaintiff. (Defs.' Mem. 2.) They then argue
that to the extent Plaintiff posits the argument that the search
of Plaintiff and her car were illegal thereby vitiating her
arrest under the “fruit of the poisonous tree” doctrine, such
an argument must be rejected pursuant to the Second Circuit's
decision in Townes v. City of New York, 176 F.3d 138 (2d
Cir. 1999). (See Defs.' Mem. 3–4.) Defendants also cite to
Martinez v. City of Schenectady, 735 N.Y.S.2d 868 (2001),
to support their assertions. 5 (See id. at 23.) While Plaintiff
concedes that Townes bars her federal false arrest claim
under § 1983, she argues that Townes does not apply to her
state false arrest claim, citing to a number of state court
decisions electing not to apply the reasoning in Townes, such
as Ostrover v. City of New York, 600 N.Y.S.2d 243 (1st Dep't
1993). (Pl.'s Opp. 4 n.2, 22–23.) 6
Although, as I acknowledged above, New York courts have
issued seemingly conflicting holdings with respect to this
issue, I find that the Officers had at least arguable probable
cause to arrest Plaintiff, and are thus entitled to qualified
immunity for Plaintiff's state false arrest claim. The Officers
noticed that the car doors of Plaintiff's car were locked, took
Plaintiff's car keys, and searched Plaintiff's car, finding a
black garbage bag in Plaintiff's trunk that contained a box
of fireworks. (Compl. ¶¶ 24–26.) New York Penal Law §
270.00(2)(b)(i) stated that “any person who shall possess ...
any fireworks or dangerous fireworks is guilty of a violation.”
Therefore, in light of the facts known to the Officers at the
time of Plaintiff's arrest and drawing all reasonable inferences
in Plaintiff's favor, “an officer of reasonable competence
could have concluded that the arrest was justified by probable
cause.” Figueroa, 825 F.3d at 99 (internal quotation marks
omitted); see also Cabral, 662 Fed.Appx. at 13 (“Whatever
ambiguity may exist as to Martinez’s adoption of Townes’s
reasoning, the existence of such a decision by New York's
highest court would afford at least the reasonable basis
necessary for qualified immunity with regard to the state
claim against [the officer].” (citation and internal quotation
marks omitted)). Because the Officers had, at minimum,
arguable probable cause to arrest Plaintiff for possession
of fireworks, they are entitled to qualified immunity as to
Plaintiff's state false arrest claim.
*5 Thus, Defendants' motion to dismiss as to Plaintiff's
state false arrest and false imprisonment claims is granted,
and these claims are dismissed with prejudice. As noted
above, Plaintiff acknowledges that she “does not assert a false
arrest claim under [§] 1983 based on the discovery of the
fireworks.” (Pl.'s Opp. 4 n.2.) To be clear, to the extent that
Plaintiff asserts any federal false arrest claims, Defendants'
motion to dismiss is also granted as to these claims, see
Townes, 176 F.3d at 144–49, and Plaintiff's federal false arrest
claims pursuant to § 1983 are also dismissed.
B. Malicious Prosecution
Defendants also argue that I should dismiss Plaintiff's claim
for malicious prosecution for three reasons: there was
probable cause to commence the proceeding; Plaintiff has
not shown a sufficient post-arraignment liberty restraint to
implicate her Fourth Amendment rights; and Plaintiff has not
shown that the proceeding terminated in her favor. (See Defs.'
Mem. 5–11.) Because I find that the Officers had arguable
probable cause and are entitled to qualified immunity as to the
malicious prosecution claim as well, Defendants' motion to
dismiss this claim under both state and federal law is granted.
1. Applicable Law
To state a malicious prosecution claim under § 1983, a
plaintiff must allege the elements of a state-law malicious
prosecution claim. See Fulton v. Robinson, 289 F.3d 188,
195 (2d Cir. 2002). The elements of malicious prosecution
are: (1) the initiation of a prosecution against a plaintiff; (2)
without probable cause; (3) the proceedings were begun with
malice; and (4) the matter terminated in plaintiff's favor. See
O'Brien v. Alexander, 101 F.3d 1479, 1484 (2d Cir. 1996).
In addition, in actions brought under § 1983, a plaintiff must
also have suffered a sufficient post-arraignment deprivation
of liberty implicating his Fourth Amendment rights. See Jocks
v. Tavernier, 316 F.3d 128, 136 (2d Cir. 2003); Rohman v.
N.Y.C. Transit Auth., 215 F.3d 208, 215 (2d Cir. 2000).
As with claims for false arrest brought under § 1983, “[t]he
existence of probable cause is a complete defense to a claim
of malicious prosecution in New York.” Manganiello v. City
of New York, 612 F.3d 149, 161–62 (2d Cir. 2010) (quoting
Savino v. City of New York, 331 F.3d 63, 72 (2d Cir. 2003)).
However, “[p]robable cause to arrest differs from probable
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cause to prosecute because the evidentiary standard is higher
for the latter than for the former.” Hoyos v. City of New York,
650 Fed.Appx. 801, 802 (2d Cir. 2016) (summary order).
“Probable cause, in the context of malicious prosecution,
has also been described as such facts and circumstances
as would lead a reasonably prudent person to believe the
plaintiff guilty.” Stansbury, 721 F.3d at 95 (quoting Boyd
v. City of New York, 336 F.3d 72, 76 (2d Cir. 2003)).
Further, even in the absence of probable cause, an officer
is entitled to qualified immunity where there is arguable
probable cause to arrest. See Betts v. Shearman, 751 F.3d 78,
83 (2d Cir. 2014) (“Plaintiff's false arrest, false imprisonment,
and malicious prosecution claims therefore turn on whether
the defendant officers' probable cause determination was
objectively reasonable—that is, whether there was arguable
probable cause to arrest.” (internal quotation marks omitted)).
2. Application
Here, Defendants claim that probable cause existed to
prosecute Plaintiff for possession of fireworks under New
York Penal Law § 270.00(2)(b)(i) because the Officers found
fireworks in the trunk of Plaintiff's car. (Defs.' Mem. 5–7.) As
noted above, New York Penal Law § 270.00(2)(b)(i) stated
in relevant part that “any person who shall possess ... any
fireworks or dangerous fireworks is guilty of a violation.” I
find that, accepting Plaintiff's allegations in the Complaint
as true and drawing all inferences in Plaintiff's favor, the
Officers had, at a minimum, arguable probable cause to arrest
Plaintiff. Although Plaintiff claims that she legally purchased
the fireworks in North Carolina, (Compl. ¶ 26), and it is
plausible to infer that at or around the time of her arrest she
explained this to the Officers prior to Pennacchia signing
the criminal complaint, this does not erase the existence of
arguable probable cause to arrest Plaintiff for possessing
fireworks. See Cabral v. City of New York, No. 12 Civ.
4659(LGS), 2014 WL 4636433, at *8 (S.D.N.Y. Sept. 17,
2014) (“Here, there is no dispute that Defendant Thompson
discovered marijuana in Plaintiff's vehicle and that Plaintiff
acknowledged it belonged to him. That discovery provides the
requisite probable cause underlying the criminal prosecution
of Plaintiff, defeating any malicious prosecution claim by
Plaintiff against Defendants under state or federal law.”),
aff'd, 662 Fed.Appx. 11 (2d Cir. 2016) (summary order).
*6 Plaintiff also argues that the Officers lacked probable
cause to prosecute her because the evidence upon which they
based the criminal complaint was gathered pursuant to an
unlawful search and thus would have been inadmissible to
prove guilt of the alleged crime. (See Pl.'s Opp. 7–10.) In
addressing this point, Defendants again point to the Second
Circuit's decision in Townes and its progeny in support of the
proposition that the “fruit of the poisonous tree doctrine ...
is inapplicable to civil § 1983 actions.” Townes, 176 F.3d at
145. As an initial matter, Defendants need only establish that
the Officers had arguable probable cause to demonstrate that
the Officers are entitled to qualified immunity. See Betts, 751
F.3d at 83. Moreover, although Plaintiff cites another Second
Circuit decision, Boyd v. City of New York, 336 F.3d 72 (2d
Cir. 2003), in support of her conclusion that the exclusionary
rule does apply in malicious prosecution cases, (see Pl.'s
Mem. 8–9), Boyd does not apply to this case. In a recent
decision the Second Circuit clarified the holding in Boyd,
stating that:
Boyd did not hold that inadmissible
evidence cannot be used in evaluating
probable cause for a prosecution, but
only that where the sole evidence of a
defendant's guilt is a single statement
that police would have understood at
the time could not be used in a criminal
case (a circumstance largely limited to
the facts of Boyd itself) such evidence
is not alone sufficient to defeat a
malicious prosecution claim.
Restivo v. Hessemann, 846 F.3d 547, 570 (2d Cir. 2017)
(emphasizing that in Boyd, the only evidence tying Boyd to
the crime was an obviously inadmissible confession made
after the arrest); see also Cyrus v. City of New York, 450
Fed.Appx. 24, 26 (2d Cir. 2011) (summary order) (affirming
district court's decision to grant summary judgment to the
defendant and refusing to apply the exclusionary rule to find
that defendant lacked probable cause to prosecute plaintiff
for criminal possession of a weapon, even assuming that the
weapon was found pursuant to an unlawful arrest). I decline
to extend Boyd to this case and therefore grant Defendants'
motion to dismiss both the state and federal claims for
malicious prosecution.
In a footnote, Plaintiff further “requests leave to amplify
the allegations that support her malicious prosecution
claim.” (Pl.'s Opp. 10 n.5.) I interpret this statement to
be a request to amend the Complaint. Defendants oppose
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this request. (Defs.' Reply 3 n.2.) 7 Given that Plaintiff has
acknowledged that the fireworks were her property, and does
not dispute Defendants' characterization of her failure to
allege that she had a permit, (see Defs.' Mem. 2; see generally
Pl.'s Opp.), Plaintiff's request to “amplify the allegations”
is denied since I find that any amendment of this cause
of action would be futile. In addition, I provided Plaintiff
with multiple opportunities to amend, and warned Plaintiff
at the pre-motion conference on February 25, 2016 that I
would scrutinize any requests for leave to amend thoroughly
if the request was made after a motion to dismiss was fully
briefed. (PMC Tr. 10:17–12:1.) 8 Plaintiff has not set forth
any justification for not “amplify[ing] the allegations” related
to this cause of action by filing an amended complaint after
the filing of the motion to dismiss.
C. Unlawful Search and Seizure 9
*7 Defendants also move to dismiss Plaintiff's unlawful
search and seizure claim on the grounds that (1) Plaintiff
has not pled a prima facie case for an unreasonable stop,
and (2) Plaintiff has not alleged any compensable injury.
(Defs.' Mem. 18–20.) Because I find that the allegations
in the Complaint plausibly allege a violation of Plaintiff's
Fourth Amendment rights and a claim for related damages,
Defendants' motion to dismiss Plaintiff's unlawful search and
seizure claim is denied.
1. Applicable Law
In analyzing a claim for unlawful search and seizure under
the Fourth Amendment, courts look to the reasonableness
of the search when determining whether a search violated a
plaintiff's constitutional rights. See Terry v. Ohio, 392 U.S.1,
9 (1968) (“[T]he Constitution forbids ... not all searches and
seizures, but unreasonable searches and seizures” (quoting
Elkins v. United States, 364 U.S. 206, 222 (1960))).
Additionally, the Supreme Court has “consistently accorded
law enforcement officials greater latitude in exercising their
duties in public places.” Florida v. White, 526 U.S. 559, 565
(1999).
Because unlawful search and seizure actions brought pursuant
to § 1983 are “analogous to state common law tort actions”
and “serv[e] primarily the tort objective of compensation,” a
plaintiff bringing a § 1983 claim must establish “proximate
causation.” Townes, 176 F.3d at 146. Further, “[t]he goal
of ...§ 1983 jurisprudence has been to tailor liability to fit
the interests protected by the particular constitutional right
in question,” and thus “damages should be made available
only for risks that are constitutionally relevant.” Id. (internal
quotation marks omitted).
2. Application
In moving to dismiss Plaintiff's claims of unlawful search
and seizure, Defendants do not make any attempt to assert a
substantive legal challenge to Plaintiff's allegations that she
was subject to an unreasonable stop, frisk, and search, but
instead focus their argument on a purported failure to plead
any compensable injury. (See Defs.' Mem. 18–20 (stating
merely that “[e]ven assuming plaintiff has pled a prima facie
case for an unreasonable stop—which she has not—she has
not alleged any actual, compensable injury”); Defs.' Reply
7 n.8 (opposing Plaintiff's argument that Defendants did not
move to dismiss this cause of action by citing to pages 18–
20 of their moving brief and also citing to their preliminary
statement, which argued only that the “stop claims must
also be dismissed because it fails the Iqbal/Twombly test
of plausibility, or at most, should be limited to nominal
damages not exceeding one dollar”).) With respect to the first
part of Plaintiff's claim—pleading a violation of her Fourth
Amendment rights—Defendants' failure to raise any legal
deficiencies with regard to the allegations in the Complaint is
consistent with my analysis and conclusion that Plaintiff has
satisfactorily alleged a violation of her Fourth Amendment
rights.
Further, regarding Defendants' assertion that Plaintiff failed
to allege damages suffered as a result of the actual stop and
search, I find the allegations in the Complaint sufficient to
survive Defendants' motion to dismiss. By way of relief,
Plaintiff seeks “(i) compensatory damages for psychological
and emotional distress, and financial loss caused by the
illegal actions of the Defendants; (ii) punitive damages to
deter such intentional or reckless deviations from well-
settled constitutional law; and (iii) such other and further
relief.” (Compl. ¶ 3.) Plaintiff does not ascribe her injury
to any particular conduct by Defendants, but rather states
more generally that the deprivation of her constitutional
and other rights caused the damages for which she claims
compensation. (See id. ¶ 32 (“Defendants' conduct caused
Plaintiff to suffer loss of liberty, loss of income, emotional
and psychological pain, embarrassment, humiliation, and
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harm to her reputation.”); id. ¶ 38 (“As a direct and
proximate result of being deprived of these constitutional
rights, Plaintiff suffered the injuries and damages set forth
above.”).) In her opposition, Plaintiff further attributes the
“psychological pain, embarrassment, humiliation, and harm
to her reputation” to Defendants' actions, “including the
illegal stop and search” in front of her mother, stepdaughter,
and nephew. (Pl.'s Opp. 16–18.)
*8 In evaluating Defendants' argument, I find the case
Hayes v. Perotta, 751 F. Supp. 2d 597 (S.D.N.Y. 2010), to be
instructive. The damages allegations in Hayes are analogous
to Plaintiff's allegations in the Complaint. As in Hayes,
some of the injuries that Plaintiff allegedly suffered from the
unlawful search are indirect and arguably far removed from
the alleged unlawful search. Id. at 598–99 (stating plaintiff's
alleged injuries included “loss of liberty” as a result of officers
unlawful search); (see also Compl. ¶ 32 (claiming Plaintiff
suffered “loss of liberty” and “loss of income”).) Additionally,
like the plaintiff in Hayes, Plaintiff refers to “a number of
injuries for which it is unclear whether they were caused by
the [arrest and prosecution] or the search itself.” Hayes, 751
F. Supp. 2d at 599. Furthermore, the Court in Hayes still
found that under Townes, “recovery for injuries that directly
result from an unlawful search is permissible.” Hayes, 751 F.
Supp. 2d at 603; see also Gannon v. City of New York, 917 F.
Supp. 2d 241, 244 (S.D.N.Y. 2013) (“I note that under Townes,
damages related to the initial search and seizure would be
possible.” (internal quotation marks omitted)). As a result, a
plaintiff may “attempt to recover damages from the loss of
privacy and/or property from the search.” Hayes, 751 F. Supp.
2d at 604.
This is similar to Plaintiff's allegations in this case. (See
Compl. ¶ 32 (alleging “emotional and psychological pain,
embarrassment, humiliation, and harm to her reputation”); id.
¶ 3 (alleging “psychological and emotional distress”).) Given
that the Complaint “alleges damage to [her] ... mental health[ ]
and interpersonal relationships,” Hayes, 751 F. Supp. 2d at
605, to the extent those injuries were caused by the search
itself, she has stated a claim for relief under both federal
and state law, see Bancroft v. City of Mount Vernon, 672 F.
Supp. 2d 391, 401 n.4 (S.D.N.Y. 2009) (“The standard for
what constitutes a constitutionally reasonable search is the
same under federal and New York State law.”). 10 Since I
find that the allegations in the Complaint plausibly allege a
violation of Plaintiff's Fourth Amendment rights and a claim
for related damages, I deny Defendants' motion to dismiss
Plaintiff's claims of unlawful search and seizure.
D. Plaintiff's Remaining State Law Claims
1. Supplemental Jurisdiction
In addition to her § 1983 claims and related state law
claims discussed above, Plaintiff alleges causes of action for
assault and battery and intentional infliction of emotional
distress (“IIED”). (Compl. ¶¶ 43–45, 52–54.) Defendants
move to dismiss Plaintiff's these state law claims on three
grounds: (1) that, assuming I dismiss all federal law claims, I
should decline to exercise supplemental jurisdiction; (2) that
Plaintiff's Notice of Claim to the City was defective under the
New York General Municipal Law; and (3) that Plaintiff fails
to state any claims. (Defs.' Mem. 20–25).
Since I have decided that certain of Plaintiff's federal law
claims survive, and otherwise find that the state law claims
are so related to the federal claims that they form part of the
same case or controversy under 28 U.S.C. § 1367, I reject
Defendants' jurisdictional argument.
2. Notice of Claim
*9 With regard to Plaintiff's Notice of Claim, Defendants'
argue that the notice is defective for two reasons: first, that
Plaintiff only named the City and not any individual officers
in the Notice of Claim, warranting dismissal of all state
law claims against the Officers under New York General
Municipal Law § 50-e, and second, that Plaintiff did not raise
a state law claim related to the unreasonable stop in the Notice
of Claim, barring this claim. (See Defs.' Mem. 21–23.)
With respect to the first argument, New York courts have
split on this question. Compare Goodwin v. Pretorius, 962
N.Y.S.2d 539, 541–42 (4th Dep't 2013) (holding that the
notice of claim statute does not require plaintiffs to name
individual defendants in the claim “as a condition precedent
to the commencement of an action against them”), with
Tannenbaum v. City of New York, 819 N.Y.S.2d 4, 5 (1st Dep't
2006) (“General Municipal Law § 50-e makes unauthorized
an action against individuals who have not been named
in a notice of claim, thus warranting dismissal of the
state claims against [the individual defendants].” (citation
omitted)), abrogated on other grounds by Kapon v. Koch, 988
N.Y.S.2d 559 (2014).
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Many, if not the majority, of recent district court decisions in
the Southern District have found that the Fourth Department
applies the approach more likely to be accepted by the New
York Court of Appeals—that “failure to name individual
defendants in a notice of claim is not an independently
sufficient ground for dismissal.” Matthews v. City of New
York, No. 15-CV-2311 (ALC), 2016 WL 5793414, at *10 n.5
(S.D.N.Y. Sept. 30, 2016); see also Chamberlain v. City of
White Plains, 986 F. Supp. 2d 363, 396–97 (S.D.N.Y. 2013);
W.A. v. Hendrick Hudson Cent. Sch. Dist., No. 14-CV-8093
(KMK), 2016 WL 1274587, at *13 n.15 (S.D.N.Y. Mar. 31,
2016); Garnett v. City of New York, No. 13-cv-7083-GHW,
2014 WL 3950904, at *11 (S.D.N.Y. Aug. 13, 2014). This
principle is based on the notion that “the primary inquiry
regarding a Notice of Claim ‘is not whether the individuals
were identified by name in the Notice of Claim, but whether
they were described sufficiently for the municipality to be
able to investigate the claim.’ ” Chamberlain, 986 F. Supp. 2d
at 397 (quoting Verponi v. City of New York, No. 16258/2004,
2011 WL 1991719, at *5 (N.Y. Sup. Ct. May 19, 2011)); see
also Brown v. City of New York, 718 N.Y.S.2d 4, 6 (2000)
(“The test of the sufficiency of a Notice of Claim is merely
whether it includes information sufficient to enable the city to
investigate.” (internal quotation marks omitted)).
I agree with these decisions, particularly in light of the fact
that in the instant case, the Notice of Claim presented enough
information to allow the City to properly investigate the
claim. (See Moulter Decl. 4–5); 11 see also Garnett, 2014 WL
3950904, at *11 (refusing to dismiss state law claims because
the notice of claim failed to identify individual defendants
was “particularly warranted where, as is the case here, the
Notice of Claim was sufficient to permit the defendant to
conduct a proper investigation and assess the merits of the
claim” (internal quotation marks omitted)). The Notice of
Claim clearly indicates individuals were involved in the
alleged violations—stating that Plaintiff's claims arose out of
“unlawful police conduct” and “excessive force by officers
of the New York City Police Department.” (Moulter Decl. 4.)
This is sufficient information to enable the city to investigate
the claim, see Chamberlain, 986 F. Supp. 2d at 397; Brown,
718 N.Y.S.2d at 6, and thus Defendants' first argument fails.
*10 With respect to the second argument, I note that the
Notice of Claim referred to an “unlawful search of her person
and vehicle” and “unreasonable search and seizure,” (Moulter
Decl. 4–5), which I find was sufficient to put Defendants
on notice of the relevant theory of liability, cf. Nieblas-
Love v. N.Y.C. Hous. Auth., 165 F. Supp. 3d 51, 76–
77 (S.D.N.Y. 2016) (dismissing negligent and intentional
infliction of emotional distress claims where the notice of
claim described the nature of the plaintiff's claim as “wrongful
termination,” “employment discrimination,” “negligency,”
and “harassment”). Therefore, I find the notice of claim is
sufficient to permit Plaintiff's filing of all of his state law
claims.
3. Sufficiency of the State Law Claims
Turning next to the sufficiency of Plaintiff's remaining state
law claims of intentional infliction of emotional distress and
assault and battery, Plaintiff has failed to state a claim with
regard to both of these claims. First, Plaintiff does not state
a claim for IIED because she does not plead “extreme and
outrageous conduct” as required to support a finding of IIED.
See Cabral, 2014 WL 4636433, at *12 (finding, where the
plaintiff was handcuffed because he was in the same car as
a suspect, arrested when the officers discovered marijuana
in the car, strip searched, and prosecuted, “no reasonable
juror could find that Defendants' actions were so outrageous
in character, and so extreme in degree, as to go beyond
all possible bounds of decency” (internal quotation marks
omitted)).
In addition, Plaintiff does not state a claim for assault and
battery because the only physical force she alleges—Capo
“aggressively shov[ing her] against the gate, push[ing] her
arms behind her back, and handcuff[ing] her,” (Compl. ¶
21)—is not the type of unreasonable and excessive force
justifying a claim for assault and battery, see Cabral, 2014
WL 4636433, at *10–11 (finding that the drawing of a
gun and handcuffing of the plaintiff, causing wrist pain,
was insufficient to survive summary judgment as to either
excessive force under § 1983 or assault and battery under
New York law); see also Chamberlain, 986 F. Supp. 2d
at 398–400 (dismissing certain assault and battery claims
for failure to state a claim because “[n]one of [the] actions
caused a reasonable apprehension of bodily injury that
[was] sufficiently imminent to constitute an assault” (internal
quotation marks omitted)); Espada v. Schneider, 522 F. Supp.
2d 544, 555 (S.D.N.Y. 2007) (finding that state assault and
battery claims are analyzed under the same standard as
excessive force claims, and that “not every push or shove” is
considered a violation because “officers may need to use some
degree of force in the course of an arrest” (quoting Maxwell
v. City of New York, 380 F.3d 106, 108 (2d Cir. 2004))). As
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a result, Defendants' motion to dismiss Plaintiff's claims for
state law IIED and assault and battery is granted.
E. Municipal Liability
Lastly, Defendants argue that dismissal of all claims against
the City is warranted because, assuming I find that there are no
viable tort claims against the individual Defendants, there is
no basis for City liability under a respondeat superior theory.
(See Defs.' Mem. 25.)
First, I find that Defendants' argument applies, although
only to the underlying claims that I have already dismissed
—namely those for false arrest and false imprisonment,
malicious prosecution, IIED, and assault and battery.
Moreover, although Plaintiff's causes of action asserting the
right to be free from unreasonable searches and seizures
under both federal and state law remain, a respondeat superior
theory “cannot be the basis of municipal defendant liability
under [§] 1983,” and thus Plaintiff's municipal liability
claim pursuant to § 1983 is dismissed. Littlejohn v. City
of New York, 795 F.3d 297, 315 (2d Cir. 2015). Because,
however, the respondeat superior doctrine may be applied to
state constitutional tort claims, Plaintiff's municipal liability
claim arising from state constitutional violations for unlawful
search and seizure remains. See, e.g., Williams v. City of
New York, No. 14-cv-5123 (NRB), 2015 WL 4461716, at *6
(S.D.N.Y. July 21, 2015) (“The City can, however, be liable
on a respondeat superior theory with respect to claims arising
from state law, including the New York State Constitution
and common law.”). Accordingly, Plaintiff's claims against
the City are dismissed, except with regard to claims against
the City arising out of Plaintiff's state law claims of unlawful
search and seizure.
V. Conclusion
*11 For the foregoing reasons, Defendants' motion to
dismiss is GRANTED IN PART and DENIED IN PART.
Because, considering the facts available at the time, the
Officers had arguable probable cause to defeat Plaintiff's
false arrest, false imprisonment, and malicious prosecution
claims under both state and federal law, Defendants' motion
to dismiss as to these claims is GRANTED. Furthermore,
because Plaintiff has not plausibly alleged claims for IIED
or assault and battery, Defendants' motion to dismiss those
claims is likewise GRANTED. With respect to the claims
against the City for municipal liability under respondeat
superior, Defendants' motion to dismiss is GRANTED as
to all claims arising out of the false arrest and false
imprisonment, malicious prosecution, IIED, and assault and
battery claims, as well as the § 1983 claim for false arrest
and false imprisonment. Defendants' motion to dismiss is
DENIED as to Plaintiff's unlawful search and seizure claim
under both state and federal law, as well as Plaintiff's claim
against the City arising out of state law unlawful search and
seizure.
Parties are directed to meet and confer regarding a proposed
date for Defendants to file their answer regarding the
remaining claims as well as a schedule for discovery. Parties
are directed to submit a joint letter addressing these issues,
as well as a proposed Case Management Plan and Scheduling
Order, on or before April 10, 2018. The Clerk of Court
is respectfully directed to terminate the open motion at
Document 22.
SO ORDERED.
All Citations
Not Reported in Fed. Supp., 2018 WL 1583036
Footnotes
1 The following factual summary is drawn from the allegations of the Complaint, unless otherwise indicated,
which I assume to be true for purposes of this motion. See Kassner v. 2nd Ave. Delicatessen Inc., 496 F.3d
229, 237 (2d Cir. 2007). My references to these allegations should not be construed as a finding as to their
veracity, and I make no such findings.
2 “Compl.” refers to the Complaint filed in this action on September 22, 2015. (Doc. 1.)
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3 New York Penal Law § 270.00 was amended effective December 20, 2014, and again effective January
21, 2018. See 2014 N.Y. Sess. Laws Ch. 477 (S. 7888); 2017 N.Y. Sess. Laws Ch. 371 (S. 724-A). The
relevant provision, which is substantially the same, is now New York Penal Law § 270.00(2)(a)(iii), which
states that “[e]xcept as herein otherwise provided, or except where a permit is obtained ... any person who
shall possess ... any fireworks or dangerous fireworks is guilty of a violation.” Because Plaintiff was arrested
in July 2014, I will reference the pre-2014 version of New York Penal Law § 270.00 for the purpose of this
Opinion and Order.
4 “Defs.' Mem.” refers to Defendants' Memorandum of Law in Support of Their Motion to Dismiss the Complaint
in its Entirety Pursuant to Fed. R. Civ. P. 12(b)(6), filed March 24, 2016. (Doc. 24.)
5 To be certain, the New York Court of Appeals in Martinez addressed a markedly different scenario, both
because probable cause was supported by reasons apart from the suppressed evidence, and because the
plaintiff had the chance to challenge the inclusion of the evidence at the prior criminal proceeding. See
Martinez, 735 N.Y.S.2d at 872–73.
6 “Pl.'s Opp.” refers to Plaintiff's Memorandum of Law in Opposition to Defendants' Motion to Dismiss Plaintiff's
Complaint Pursuant to Fed. R. Civ. P. 12(b)(6), filed May 5, 2016. (Doc. 27.)
7 “Defs.' Reply” refers to Defendants' Reply Memorandum of Law in Further Support of Their Motion to Dismiss
the Complaint in its Entirety Pursuant to Fed. R. Civ. P. 12(b)(6). (Doc. 29.)
8 “PMC Tr.” refers to the Transcript of the Pre-Motion Conference held before me on February 25, 2016 at
11:30 a.m.
9 Plaintiff did not reference the seizure of the fireworks found in her car as part of any of her causes of action.
(See Compl. ¶ 32 (claiming as financial losses only “loss of income”).) In fact, even in her opposition, Plaintiff
charges Defendants with failing to move to dismiss her claims “based on the unlawful stop, search of her
person, or search of her car,” not any seizure of physical property related to those searches. (See Pl.'s Opp.
at 4–7.) To the extent that Plaintiff does wish to state such a claim, I find that her Complaint has failed to
do so. See Cabral, 2014 WL 4636433, at *9 (holding that the seizure of a vehicle and cash was justified by
the discovery of contraband).
10 Defendants also argue that, because Plaintiff “failed to produce any medical releases pursuant to Rule
83.10(1) of the Local Civil Rules for the Southern and Eastern Districts,” she has waived her right to recover
for physical or psychological injury. (Defs.' Mem. 18–19.) However, as Plaintiff notes, Local Civil Rule 83.10
expressly states that provision of a medical release is required only for injuries “other than ‘garden variety’
emotional distress.” (Pl.'s Opp. 18.) As a result, I do not find that Local Civil Rule 83.10 precludes the damages
alleged by Plaintiff. See Kennedy v. Arias, 12 Civ. 4166 (KPF), 2017 WL 2895901, at *3 (S.D.N.Y. July 5,
2017) (finding in the context of a plaintiff's § 1983 excessive force claim that failure to produce medical records
merely restricted the plaintiff to seeking “garden variety emotional distress damages” but did not completely
preclude recovery (internal quotation marks omitted)).
11 “Moulter Decl.” refers to the Declaration of Alex Moulter submitted with Plaintiff's opposition, filed May 5,
2016. (Doc. 27-1.) The page numbers of the Declaration and attached exhibits do not have page numbers,
and thus I refer to the pages assigned to it by the Court's Electronic Case Filing (“ECF”) system.
End of Document © 2025 Thomson Reuters. No claim to original U.S. Government Works.
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Jenkins v. Raytheon Technologies Corporation, Not Reported in Fed. Supp. (2023)
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2023 WL 2346576
Only the Westlaw citation is currently available.
United States District Court, D. Connecticut.
Jodian JENKINS, Plaintiff,
v.
RAYTHEON TECHNOLOGIES
CORPORATION, et al., Defendants.
No. 3:21-cv-406 (SRU)
|
Signed March 3, 2023
Attorneys and Law Firms
Jodian Nicole Jenkins, Manchester, CT, Pro Se.
Anthony S. Califano, Seyfarth Shaw LLP, Boston, MA, Kevin
R. Brady, Seyfarth Shaw LLP, New York, NY, for Defendants.
ORDER ON DEFENDANTS’ MOTION
TO STRIKE OR DISMISS; PLAINTIFF'S
MOTION TO STRIKE; AND DEFENDANTS’
MOTION TO COMPEL AND/OR DISMISS
Stefan R. Underhill, United States District Judge
I. Introduction
*1 I scheduled a telephonic hearing on-the-record to be
held March 1, 2023 regarding the defendants’ motion to
strike or dismiss the plaintiff's amended complaint, doc. no.
164; the plaintiff's motion to strike the defendants’ motion to
strike or dismiss, doc. no. 166; and the defendants’ motion
to compel and/or dismiss, doc. no. 170. See Doc. No. 180.
Unfortunately, the plaintiff, Jodian Jenkins (“Jenkins”), did
not attend the telephonic hearing. For the reasons set forth in
this Order, the defendants’ motion to strike or dismiss, doc.
no. 164, is granted in part and denied without prejudice
in part; the plaintiff's motion to strike, doc. no. 166, is
denied; and the defendants’ motion to compel and/or dismiss
is granted in part and denied without prejudice in part.
II. Defendants’ Motion to Strike Pursuant to Rule 12(f)
or Dismiss Pursuant to Rule 12(b)(6), Doc. No. 164; and
Plaintiff's Motion to Strike, Doc. No. 166
On May 11, 2022, the defendants filed a motion to strike
and/or dismiss certain claims in the plaintiff Jodian Jenkins’
amended complaint. See Doc. No. 164. In response, on May
12, 2022, the plaintiff filed a motion to strike the defendants’
motion to strike or dismiss. See Doc. No. 166. As discussed
below, the defendants’ motion to strike and/or dismiss certain
claims is granted in part and denied in part. The plaintiff's
motion to strike the defendants’ motion is denied.
A. Factual Allegations in Plaintiff's Amended Complaint
Jenkins filed her amended complaint in the instant
action in April 2022. In her complaint, she identifies as
defendants Raytheon Technologies Corporation (“RTX”) and
its subsidiaries, Pratt & Whitney (“Pratt”) and Hamilton
Sundstrand (“Collins”). Doc. No. 151 at 1-2. She also brings
her complaint against additional unnamed employees who
“attacked [her] and/or [were] hired to ‘fight’ [her] ... on behalf
of [the] [d]efendants.” Doc. No. 151 at 2. 1
Jenkins purports to base her action on the following laws
and authorities: the Civil Rights Act of 1964, the First
Amendment, the “Privacy Act / Bill Of 1974 and All
Amendments; the U.S. “Equal Employment Opportunity
Laws”; the Fair Employment and Housing Act; the Equal
Protection Clause of the Fourteenth Amendment; the Due
Process Clause; the U.S. Equal Employment Opportunity
Commission Laws, Policies, and Practices; the Connecticut
Fair Employment Practice Act; the Lilly Ledbetter Fair Pay
Act; the Americans with Disabilities Act; Federal Rule of
Criminal Procedure 112 [sic]; and the Anti-Lynching Bill of
2022. Id. at 2-3. Jenkins also appears to bring a conspiracy to
commit murder claim against the defendants.
1. Factual Allegations Regarding RTX/Pratt
Jenkins alleges that she began her employment with
defendants RTX and Pratt at the end of 2016 and beginning
of 2017. See Doc. No. 151 at 4. During her employment,
she alleges that two of her supervisors, Pamela Cavedon
and Elizabeth Lannigan, “discriminated against [her] and
subjected [her] to a hostile environment because of [her] race,
color, and national origin” as a Black woman of African and
Jamaican descent. Id. at 4. She provides several examples
of discriminatory incidents, including alleging that Cavedon
“stated she did not want to hire a black person,” and that
Lannigan had referred to Jenkins using a racial slur. Id. at 4.
The discriminatory conduct intensified over the next several
months, and “[b]etween December 2017 and February 19,
2018,” Jenkins submitted “verbal and written” complaints of
the discrimination to human resource officials Justin Blum
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and Dantaya Williams; Mark Paul, the supervisor of Lannigan
and Cavedon; and Earl Exam, the Vice President. Id. at 5.
Rather than alleviating the discriminatory conduct, Jenkins
alleges that Justin Blum intensified the discrimination by
disclosing Jenkins’ complaints to her coworkers. Id. As a
consequence, Jenkins alleges that she was made to take
on work responsibilities outside of the scope of her role,
including additional projects, email correspondence, and on
one occasion working for approximately twenty-four hours
straight. Id. at 5-6.
*2 Jenkins alleges that the defendants terminated her
employment in retaliation for her complaints on February
23, 2018. Id. at 6. In the subsequent months, Jenkins re-
applied to various employment positions at RTX/Pratt. In
June 2018, she interviewed for one such position, and she
was offered the position and given a July 2018 start date. Id.
at 6-7. On July 19, 2018, however, her offer was rescinded
for “business restrictions pertaining to the hiring position.”
Id. at 7. Jenkins alleges that the rescission of the offer, along
with the defendants’ general refusal to hire her for positions
for which she was well-qualified, was in retaliation for her
“protected conduct and opposition to discrimination.” Id. at 7.
Jenkins also appears to allege that RTX and Pratt engaged
in discriminatory and retaliatory conduct during mediation
proceedings that were held in February 2019. Id. at 9.
Furthermore, she alleges that she was manipulated into
releasing Pratt as a defendant during those mediation
proceedings. Id. at 3.
2. Factual Allegations Regarding RTX/Collins
Jenkins brings additional claims against Collins, a subsidiary
of RTX, with whom she was employed between September
2019 and March 2020. Id. at 8. Jenkins alleges that the
supervisory employees at Collins referred to her race and
gender in a derogatory manner, including telling her she “[did]
not know [her] place as a woman.” Id. at 10. Jenkins also
alleges that in September 2018, she “repeatedly requested ...
a full ergonomics workstation” from her employer. Id. at
9. Her request was granted but she never received the full
accommodation. Id. As a result, she alleges she “suffered
excruciating lower back pain,” and in 2020, a lump was
discovered in the center of her back. Id. Jenkins also alleges
that she was placed on a “Performance Success Plan” in
retaliation for her complaints of discrimination against her
former employer, RTX/Platt. Id. at 10. In addition, she alleges
that she was denied a bonus that other, majority white male
coworkers received, and was then terminated in March 2020.
Id. at 9.
3. Factual Allegations Regarding
Retaliation for Filing of the Instant Action
Jenkins also alleges that RTX, Pratt, and Collins conspired
with other entities to attack her, harass her, and attempt to
kill her in retaliation for her filing the instant case. See
id. at 11-13. She alleges that that the defendants sought to
overturn her U.S. citizenship and retained federal employees
to withhold her birth certificate and personal mail, and to bar
her from speaking to the Federal Bureau of Investigation. Id.
at 12. She also alleges that the defendants conspired with
state and federal law enforcement to, inter alia, prevent the
investigation of criminal conduct committed against her. Id.
at 13. She further lists individuals she alleges were recruited
by the defendants to attempt to murder her in retaliation for
her protected conduct. Id. at 12-13.
B. Standard of Review for Motion to Strike and Rule
12(b)(6) Motion to Dismiss
Federal Rule of Civil Procedure 12(f) permits a court to
“strike from a pleading an insufficient defense or any
redundant, immaterial, impertinent, or scandalous matter.”
Fed. R. Civ. P. 12(f). A court may act “on its own” or
“on motion made by a party either before responding to the
pleading or, if a response is not allowed, within 21 days after
being served with the pleading.” Id.
A party may also move to dismiss a claim pursuant to Rule
12(b)(6), or “failure to state a claim upon which relief can
be granted.” Fed. R. Civ. P. 12(b). “In considering a motion
to dismiss for failure to state a claim, the Court should
follow a ‘two-pronged approach’ to evaluate the sufficiency
of the complaint.” Sommerville v. Geissler's Supermarket,
2012 WL 253345, at *1 (D. Conn. Jan. 26, 2012) (citing
Hayden v. Paterson, 594 F.3d 150, 161 (2d Cir. 2010)). “A
court ‘can choose to begin by identifying pleadings that,
because they are no more than conclusions, are not entitled to
the assumption of truth.’ ” Hayden v. Paterson, 594 F.3d 150,
161 (2d Cir. 2010) (quoting Ashcroft v. Iqbal, 129 S. Ct. 1937,
1950 (2009)). “At the second step, a court should determine
whether the ‘well-pleaded factual allegations,’ assumed to be
true, ‘plausibly give rise to an entitlement to relief.’ ” Hayden,
594 F.3d at 161 (quoting Iqbal, 129 S. Ct. at 1950).
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*3 It is well-established that “[p]ro se complaints ‘must
be construed liberally and interpreted to raise the strongest
arguments that they suggest.’ ” Sykes v. Bank of Am., 723 F.3d
399, 403 (2d Cir. 2013) (quoting Triestman v. Fed. Bureau of
Prisons, 470 F.3d 471, 474 (2d Cir. 2006)); see also Tracy v.
Freshwater, 623 F.3d 90, 101-02 (2d Cir. 2010) (discussing
special rules of solicitude for pro se litigants).
C. Analysis
1. Motion to Strike or Dismiss Plaintiff's Claims
Regarding Post-Employment Retaliation
The defendants seek dismissal of Jenkins’ claims regarding
the defendants’ alleged post-employment conduct. The
defendants argue that the claims are not appropriately raised
in connection with Jenkins’ employment discrimination
claims. Doc. No. 165 at 5 (citing Doc. No. 67; Doc. No. 69;
Doc. No. 74).
Federal Rule of Civil Procedure 15(d) provides that “the court
may, on just terms, permit a party 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). “Rule 15(d) reflects a liberal policy
favoring a merit-based resolution of the entire controversy
between the parties.” Witkowich v. Gonzales, 541 F. Supp.
2d 572, 590 (S.D.N.Y. 2008) (cleaned up and citations
omitted). The Second Circuit has instructed that “leave to
file a supplemental pleading should be freely permitted when
the supplemental facts connect it to the original pleading.”
Quaratino v. Tiffany & Co., 71 F.3d 58, 66 (2d Cir. 1995).
Furthermore, “[a]bsent undue delay, bad faith, dilatory tactics,
undue prejudice to the party to be served with the proposed
pleading, or futility, the motion should be freely granted.” Id.
On April 4, 2022, this Court sua sponte granted Jenkins
leave to file an amended complaint after she had filed
multiple notices on the docket indicating her intent to raise
additional claims and factual allegations. See Doc. No. 142;
see, e.g., Doc. No. 140; Doc. No. 135. 2 Jenkins filed her
amended complaint on April 20, 2022. Doc. No. 151. In
her new allegations regarding post-employment retaliation,
Jenkins alleges that the defendants have retaliated against
her in the time since she filed the instant suit. Jenkins’
retaliation claim is not unrelated to her original employment
discrimination claim against the same defendants. In her chief
employment discrimination claim, Jenkins similarly alleges
that the defendants retaliated against her for submitting
complaints regarding the alleged discrimination. Jenkins’
new allegations concerning post-employment retaliation,
therefore, are “closely related to those raised ... throughout
the litigation thus far.” Witkowich, 541 F. Supp. 2d at 590.
Nevertheless, even if Jenkins could properly raise a post-
employment retaliation claim, the factual allegations in her
amended complaint in support of that claim are conclusory
and insufficient to support the claim. See Harris v. Mills, 572
F.3d 66, 72 (2d Cir. 2009) (“[A]lthough a court must accept
as true all of the allegations contained in a complaint, that
tenet is inapplicable to legal conclusions.”) (citation omitted);
see also Iqbal, 556 U.S. at 678 (“[T]he pleading standard ...
does not require ‘detailed factual allegations,’ but it demands
more than an unadorned, the-defendant-unlawfully-harmed-
me accusation.”); id. 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.”). 3
*4 For the foregoing reasons, I grant the defendants’
motion to dismiss Jenkins’ post-employment claims, and I
dismiss without prejudice Jenkins’ claims regarding post-
employment retaliation. See Doc. No. 151 at 11-13 (plaintiff's
post-employment retaliation claim).
2. Plaintiff's Claims Against Pratt
The defendants further argue that the plaintiff's claims
concerning her employment with Pratt are time-barred,
that certain allegations concerning statements at mediation
proceedings should be stricken, and that the plaintiff
never properly served Pratt. For the reasons discussed
below, I grant the defendants’ motion to dismiss claims
concerning time-barred conduct, I deny without prejudice
the defendants’ motion to strike statements related to
mediation proceedings, and I order the plaintiff to serve Pratt
with the amended complaint and file proof of service on the
docket within 21 days of this Order.
The defendants argue that Jenkins’ allegations concerning
Pratt are time-barred. “When a person files a discrimination
charge with a state equal employment opportunity agency,
Title VII requires him to file a complaint with the EEOC
within 300 days of the alleged act of discrimination.” Roberts
v. Jud. Dep't, 2001 WL 777481, at *3 (D. Conn. Mar. 28,
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2001), aff'd, 25 F. App'x 75 (2d Cir. 2002); see also Van
Zant v. KLM Royal Dutch Airlines, 80 F.3d 708, 712 (2d Cir.
1996). “This requirement functions as a statute of limitations,
in that discriminatory incidents not timely charged before
the EEOC will be time-barred upon the plaintiff's suit in
district court.” Quinn v. Green Tree Credit Corp., 159 F.3d
759, 765 (2d Cir. 1998) (internal citation omitted). “Whether
or not the [agency] acts on the charge, a complainant is
entitled to a ‘right-to-sue’ notice 180 days after the charge
is filed.” Wilson v. Long Ridge Post Acute Care, 2023 WL
2072510, at *8 (D. Conn. Feb. 17, 2023) (quoting Fort Bend
Cnty., Texas v. Davis, 139 S. Ct. 1843, 1847 (2019)); see
also 42 U.S.C. § 2000e-5(f)(1); Conn. Gen. Stat. § 46a-10
(b). “The complainant may then commence a civil action ...
within ninety days of his receipt of this notice.” Wilson, 2023
WL 2072510, at *8 (citation omitted); see also 42 U.S.C. §
2000e-5(f)(1); Conn. Gen. Stat. § 46a-101(e).
Jenkins brings a claim of employment discrimination against
RTX and its subsidiary Pratt, where she was employed from
early 2017 until her termination in February 2018. Doc. No.
151 at 4, 6. After her termination, Jenkins alleges that in
June 2018, she was offered new employment at Pratt, but
the offer was rescinded in July 2018. Id. at 7. She alleges
that the rescission of the offer was in retaliation for her
complaints about employment discrimination. Id. She further
raises allegations against Pratt in the context of a mediation
proceeding that occurred in February 2019. Id. at 3, 9. In
her amended complaint, Jenkins references two Connecticut
Commission on Human Rights & Opportunities (“CHRO”)
complaints, one filed in 2018 and one filed in 2020. 4 See
Doc. No. 151 at 4.
*5 Accepting as true Jenkins’ allegation that she filed a
CHRO complaint in 2018, Jenkins would have been entitled
to a right-to-sue notice from the agency within 180 days, and
she would have had to initiate her suit within ninety days of
receipt of that notice. See Wilson, 2023 WL 2072510, at *8.
Assuming Jenkins filed her 2018 CHRO complaint on the last
day in 2018, December 31, and applying the applicable timing
provisions, the latest she could have filed her suit regarding
her charges in the 2018 CHRO complaint would have been
September 30, 2019. 5 Because Jenkins did not file the instant
suit by that date, any charges in her 2018 CHRO complaint
are time-barred.
Jenkins filed her 2020 CHRO complaint on April 24, 2020.
See Doc. No. 165-1 at 2. Applying the 300-day requirement
to that charge, in order for Jenkins’ discrimination allegations
against Pratt to be timely, the discriminatory conduct must
have occurred within 300 days of April 24, 2020. The earliest
conduct that is not time-barred, then, is conduct that occurred
on June 29, 2019. Therefore, to the extent that Jenkins’ claims
against Pratt concern discriminatory conduct that took place
before June 29, 2019, those claims are also time-barred.
Accordingly, Jenkins’ claims concerning conduct by Pratt
prior to June 29, 2019 are dismissed with prejudice.
Separately, the defendants also request that Jenkins’
allegations regarding a settlement agreement with RTX
and Pratt be stricken pursuant to Rule 12(f). See Fed.
R. Civ. P. 12(f). Federal Rule of Evidence 408 makes
inadmissible evidence of “conduct or a statement made during
compromise negotiations about the claim.” Fed. R. Evid. 408.
However, in general, “[e]videntiary questions ... should ...
be avoided at such a preliminary stage of the proceedings.”
Lipsky v. Commonwealth United Corp., 551 F.2d 887, 893
(2d Cir. 1976) (cautioning granting of motion to strike
portions of complaint based on evidentiary rules). Moreover,
“although ...Rule 408 certainly protect[s] ‘statements made in
compromise negotiations,’ it is well-settled that ‘Rule 408 is
inapplicable when the claim is based upon some wrong that
was committed in the course of the settlement discussions.”
Deluca v. Allied Domecq Quick Serv. Restaurants, 2006
WL 2713944, at *2 (E.D.N.Y. Sept. 22, 2006) (collecting
cases); see also Carney v. Am. Univ., 151 F.3d 1090,
1095 (D.C. Cir. 1998) (Settlement letters “can be used to
establish an independent violation (here, retaliation) unrelated
to the underlying claim which was the subject of the
correspondence (race discrimination).”). In support of her
racial discrimination claim in her amended complaint, Jenkins
describes an exchange that occurred during a mediation
proceeding with the defendants. See Doc. No. 151 at 9. She
also alleges she was “manipulated into signing [a] release
form” at a mediation session. See id. at 3. Because Jenkins’
amended complaint may be liberally construed to offer those
mediation-related allegations for an admissible purpose, I
deny without prejudice the defendants’ motion to strike
Jenkins’ claims arising out of mediation.
The defendants also argue that Pratt is not a party to this
lawsuit because it has not been properly served. See Doc. No.
165 at 8. Rule 4 of Civil Procedure requires a plaintiff to serve
a summons and complaint within 90 days after a complaint
is filed. See Fed. R. Civ. P. 4(c), (m). “If a defendant is not
served within 90 days after the complaint is filed, the court
—on motion or on its own after notice to the plaintiff—must
dismiss the action without prejudice against that defendant
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or order that service be made within a specified time.” Fed.
R. Civ. P. 4(m). Accordingly, the plaintiff is ordered to
serve Pratt with the amended complaint and file proof of
service within 21 days, or her claims against Pratt shall be
dismissed.
3. Jenkins’ Criminal Claims
*6 The defendants also move to dismiss Jenkins’ criminal
claims. In her amended complaint, Jenkins alleges that the
defendants are engaged in criminal conduct, alleges that
the defendants are conspiring to murder her, and seeks to
bring claims pursuant to the “Anti-lynching Bill of 2022”
and Rule 112 [sic] of Criminal Procedure. See Doc. No.
151 at 2-3, 12. As I have previously explained, this matter
is a civil action, and the court lacks authority to convert
this matter into a criminal prosecution. See Doc. No. 107
(previous Order); see also Leeke v. Timmerman, 454 U.S.
83, 87 (1981). Accordingly, I grant the defendants’ motion
to dismiss Jenkins’ criminal claims, and Jenkins’ claims for
violations of criminal laws are dismissed with prejudice.
Jenkins may not raise any additional criminal law claims in
connection with this civil case.
4. Additional Causes of Action
The defendants also seek to dismiss Jenkins’ claims arising
under the Equal Protection Clause, due process, the First
Amendment, the Privacy Act/Bill of 1974, the Lilly Ledbetter
Fair Pay Act, the U.S. Equal Employment Opportunity
Commission Policies and Practices, and Rule 112 [sic] of
Criminal Procedure.
Because the defendants are private actors and entities, Jenkins
may not bring an equal protection or due process claim against
them. See Grogan v. Blooming Grove Volunteer Ambulance
Corps., 768 F.3d 259, 263 (2d Cir. 2014) (stating that the
Fourteenth Amendment of the federal Constitution regulates
only the government and not private parties); Warde v.
Housatonic Area Reg'l Transit Dist., 154 F. Sup. 2d 339, 356
(D. Conn. 2001) (stating that “there is no private cause of
action for monetary damages under the equal protection and
due process provisions ... of the Connecticut Constitution”).
Furthermore, Jenkins cannot bring a claim under the Privacy
Act against private individual defendants. Burch v. Pioneer
Credit Recovery, Inc., 551 F.3d 122, 124 (2d Cir. 2008)
(per curiam) (“[T]he private right of civil action created
by the Privacy Act is specifically limited to actions against
agencies of the United States government.”). In addition,
to the extent that I might liberally construe the complaint
to raise a claim pursuant to the Freedom of Information
Act, “private individuals are not proper defendants in FOIA
actions.” Statton v. Fla. Fed. Jud. Nominating Comm'n, 2019
WL 1763239, at *3 (M.D. Fla. Apr. 22, 2019).
Jenkins’ claims under the First Amendment, the Ledbetter
Act, and the Federal Rules of Criminal Procedure are also
improper. “The First Amendment does not create a private
cause of action.” See Boyle v. Hartford County, 2004 WL
3222888, at *5 (D. Md. Mar. 31, 2004). Moreover, Jenkins
may not sue under the Ledbetter Act because the statute
“does not create substantive rights.” Jones v. Richland Cty.,
2016 WL 11409594, at *3 (D.S.C. June 13, 2016). Nor do
federal procedural rules create substantive rights. See Rogers
v. Furlow, 729 F. Supp. 657, 660 (D. Minn. 1989).
Lastly, to the extent that I may liberally construe Jenkins’
claims pursuant to the “U.S. Equal Employment Opportunity
Commission Policies and Practices” to arise under a proper
cause of action, such as Title VII of the Civil Rights Act of
1964, the defendants’ motion to dismiss that claim is denied
without prejudice.
For the foregoing reasons, I dismiss with prejudice the
following claims raised by Jenkins in her amended complaint:
equal protection, due process, the First Amendment, the
Privacy Act/Bill of 1974, the Lilly Ledbetter Fair Pay Act,
and Rule 112 [sic] of Criminal Procedure.
If the plaintiff complies with all the requirements of this
Order, her claims against RTX, Pratt, and Collins may proceed
under the Americans with Disabilities Act (“ADA”), and her
claims may proceed under Title VI of the Civil Rights Act of
1964 with respect to any conduct that occurred after June 29,
2019. In addition, although her claims against the individual
defendants may not proceed under the ADA, Title VII, or
any of the causes of action dismissed by this Order, claims
against those individuals potentially could proceed under
other causes of action. See Martin v. Town of Westport, 329
F. Supp. 2d 318, 332 (D. Conn. 2004) (no individual liability
under the ADA); Patterson v. Cnty. of Oneida, N.Y., 375 F.3d
206, 221 (2d Cir. 2004) (no individual liability under Title
VII). Furthermore, if Jenkins wishes to introduce additional
facts in support of her post-employment retaliation claim, she
may file a motion seeking leave to amend her complaint to
include those facts.
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5. Plaintiff's Motion to Strike
*7 In response to the defendants’ motion to strike or
dismiss the plaintiff's amended complaint, the plaintiff has
filed a motion to strike the defendants’ motion. See Doc.
No. 166. Because the defendants’ motion to strike or dismiss
is meritorious and contains no “insufficient defense or any
redundant, immaterial, impertinent, or scandalous matter,” I
deny the plaintiff's motion to strike the defendants motion to
strike, doc. no. 166. See Fed. R. Civ. P. 12(f).
In so ruling, I have considered the legal arguments in Jenkins’
motion to strike. However, Jenkins’ motion to strike also
seems to allege new facts. See generally Doc. No. 166. If
Jenkins wishes to introduce additional factual allegations, she
should file a motion to amend her amended complaint. At that
point, I will consider her motion to amend the complaint and
determine whether to grant her request.
III. Defendants’ Motion Dismiss Pursuant to Rule 41(b)
or Compel, Doc. No. 170
On August 19, 2022, the defendants filed a motion to dismiss
or to compel pursuant to Rules 41(b) and 37(d)(1)(A)(ii).
Specifically, the defendants seek an order dismissing the
instant case with prejudice or, in the alternative, compelling
the plaintiff to comply with her discovery obligations. For
the reasons below, I grant in part and deny in part the
defendants’ motion to dismiss or compel.
A. Standard of Review for Rule 41(b) Motion to Dismiss
and Motion to Compel
In general, a court has broad discretion in resolving discovery
disputes and determining the scope of discovery in a given
case. See Doe v. Town of Greenwich, 2020 WL 2374991, at
*2 (D. Conn. Feb. 20, 2020). Federal Rule of Civil Procedure
37 provides that “[o]n notice to other parties and all affected
persons, a party may move for an order compelling disclosure
or discovery.” Fed. R. Civ. P. 37(a)(1). “If a party fails to
make a disclosure required by Rule 26(a), any other party may
move to compel disclosure and for appropriate sanctions.”
Fed. R. Civ. P. 37(a)(3)(A). In addition, “[a] party seeking
discovery may move for an order compelling an answer,
designation, production or inspection ... if ... a party fails to
answer an interrogatory submitted under Rule 33” or “a party
fails to produce documents ... or fails to permit inspection—
as requested under Rule 34.” Fed. R. Civ. P. 37(a)(3)(B). Rule
37 also instructs that “an evasive or incomplete disclosure,
answer, or response must be treated as a failure to disclose,
answer, or respond.” Fed. R. Civ. P. 37(a)(4).
Rule 37(d) provides that a court “may, on motion, order
sanctions if ... a party ... fails, after being served with proper
notice, to appear for that person's deposition; or ... a party,
after being properly served with interrogatories under Rule
33 or a request for inspection under Rule 34, fails to serve
its answers, objections, or written response.” Fed. R. Civ. P.
37(d)(1)(A); see also Agiwal v. Mid Island Mortg. Corp., 555
F.3d 298, 302 (2d Cir. 2009) (“[F]ailure to comply [with a
court's orders] may result in sanctions, including dismissal
with prejudice.”). “A motion for sanctions for failing to
answer or respond must include a certification that the movant
has in good faith conferred or attempted to confer with the
party failing to act in an effort to obtain the answer or response
without court action.” Fed. R. Civ. P. 37(d)(1)(B).
“All litigants, including pro ses, have an obligation to comply
with court orders.” Agiwal, 555 F.3d at 302 (cleaned up
and citation omitted). “The severe sanction of dismissal with
prejudice may be imposed even against a plaintiff who is
proceeding pro se, so long as a warning has been given that
noncompliance can result in dismissal.” Valentine v. Museum
of Mod. Art, 29 F.3d 47, 50 (2d Cir. 1994).
*8 Rule 41(b) provides another avenue for dismissal, stating
that “[i]f the plaintiff fails to prosecute or to comply with
these rules or a court order, a defendant may move to dismiss
the action or any claim against it.” Fed. R. Civ. P. 41(b). The
Second Circuit sets forth factors for district courts to consider
before dismissing under Rule 41(b). These factors are:
(1) the duration of the plaintiff's
failures; (2) whether plaintiff had
received notice that further delays
would result in dismissal; (3) whether
the defendant is likely to be prejudiced
by further delay; (4) whether the
district judge has taken care to strike
the balance between alleviating court
calendar congestion and protecting a
party's right to due process and a fair
chance to be heard; and (5) whether
the judge has adequately assessed the
efficacy of lesser sanctions.
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LeSane v. Hall's Sec. Analyst, Inc., 239 F.3d 206, 209 (2d Cir.
2001) (cleaned up). The Second Circuit does not “require the
court to discuss the factors on the record,” but “a decision to
dismiss stands a better chance on appeal if the appellate court
has the benefit of the district court's reasoning.” Id. (citation
omitted).
B. Defendants’ Allegations Regarding Plaintiff's
Noncompliance
In support of their motion to compel or dismiss pursuant
to Rule 41(b), the defendants allege the following facts
regarding Jenkins’ failure to comply:
Jenkins “refused to participate in the preparation of a joint
case management report,” so defendants filed one “without
input from” her. Doc. No. 170-1 at 3-4; see also Doc. No. 127
(the defendants’ Rule 26(f) Report).
During a January 5, 2022 status conference, I explained the
discovery rules to Jenkins. Doc. No. 170-1 at 4; see also
Doc. No. 138 at 11-14 (transcript). On April 4, 2022, I held a
Rule 16 conference with the parties and entered a Scheduling
Order setting forth discovery deadlines. Doc. No. 170-1 at 4;
see also Doc. No. 142 (the Court's memorandum of Rule 16
conference and order).
Jenkins’ responses to the defendants’ interrogatories and
document requests were due on April 11, 2022. Jenkins
filed “untimely and incomplete responses” to the defendants’
document requests on May 4, 2022, and Jenkins never
responded to defendants’ interrogatories. Id. at 4-5. She
incorrectly filed her responses on the docket, and when
defendant counsel requested she remove the responses and
documents from the docket, she “refused to do so.” Id.; see
also Doc. No. 170-3 at 33 (email from defendant counsel to
Jenkins); Doc. No. 170-2 at ¶ 9 (defendant counsel declaration
stating Jenkins and defendant counsel spoke by telephone,
and she refused to remove the discovery materials from the
docket).
I set a deadline of May 4, 2022 for Jenkins’ initial disclosures.
Jenkins never served her initial disclosures. See Doc. No.
170-1 at 4-5.
On June 6, 2022, defendant counsel wrote to Jenkins
“requesting that she provide her interrogatory responses and
[i]nitial [d]isclosures, and addressing the deficiencies in her
responses to [the] [d]efendants’ document requests.” Id. at 5.
The defendants attempted to resolve the dispute by telephone
with Jenkins, and on July 15, 2022 the defendants and Jenkins
mutually agreed to speak by telephone on July 18, 2022. Id. at
5; see also Doc. No. 170-2 at ¶¶ 11-12; Doc. No. 170-3 at 49.
On July 16, 2022, Jenkins emailed the defendants’ counsel
stating, inter alia:
*9 I WILL NOT CONTINUE
PARTICIPATING IN THIS SO-
CALLED ‘CASE’ Therefore, you
and your Clients are more than
free to continue as you deem
‘NECESSARY’ ... PLEASE DO NOT
CONTACT ME ANY FURTHER
AS THERE IS NOTHING ELSE I
THE REPEATED VICTIM HAVE TO
SAY OR DO IN THIS.... SINCE
THIS CASE WAS A PRETEXT
TO TARGET AND VIOLATE
MY RIGHTS AND FREEDOM
TO WORSHIP THE LORD GOD
ALMIGHTY - [I] AM OUT!!!!
Doc. No. 170-1 at 5; Doc. No. 170-3 at 51-53; see also Doc.
No. 170-2 at ¶ 13. Jenkins never joined the call on July 18,
2022. Doc. No. 170-1 at 5-6.
On August 1, 2022, Jenkins emailed the defendants’ counsel
and this Court's Chambers stating, inter alia, the following:
I AM NOT DROPPING THE
LAWSUIT AGAINST YOUR
CLIENTS; THIS MY LAWSUIT
AGAINST YOUR CLIENTS
WILL BE INCORPORATED
IN MY LAWSUIT AGAINST
THE STATE OF CONNECTICUT
(CT) ... I AM TAKING
LEGAL ACTIONS AGAINST YOU
ALL COLLECTIVELY IN ONE
LAWSUIT ... I AM NOT SIGNING
ANY DOCUMENTS TO DROP THIS
SUIT AGAINST YOUR CLIENTS
– AS I WILL SUIT IN A
COURT OF LAW THAT IS NOT
BIAS AND WORKING IN THE
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INTERESTS OF YOUR CLIENTS,
AS IS EVIDENTIARY TO THE BIAS
DISPLAYED IN THE STATE OF
CONNECTICUT COURTS....
Doc. No. 170-3 at 63-64; Doc. No. 170-1 at 6.
On August 19, 2022, the defendants served Jenkins a notice
of deposition by email and U.S. mail. Doc. No. 174 at
1; Doc. No. 174-1 at 1; id. at 4. On August 20, 2022,
Jenkins responded by email to the defendants’ counsel
stating, “DO NOT MAIL ME ANYTHING – THIS IS NOT
AND HAS NOT BEEN A TRUE LEGAL CASE AS IS
EVIDENTIARY!!” Doc. No. 174 at 1; Doc. No. 174-1 at 9.
On September 9, 2022, Jenkins failed to appear for her
scheduled deposition. Doc. No. 174 at 1-2; Doc. No. 174-1 at
2; id. at 11-17 (transcript).
The defendants certify that they “have in good faith attempted
to confer with Plaintiff to obtain her discovery compliance or
dismissal without court action.” Doc. No. 170-1 at 6.
C. Plaintiff's Recent Filings on the Docket Showing
Disinterest in Case
Jenkins’ recent filings in the case at bar demonstrate a
disinterest and, at times, a refusal to participate in this case.
On May 2, 2022, Jenkins filed a motion seeking that my
recusal. See Doc. No. 154. Among her stated reasons, Jenkins
wrote that “though [she has] repeatedly Motioned for [me] to
implement restraints on Defendants,” I have “merely stated
excuses to deny all these [ ] Motions.” Id. at 5. She further
wrote that I am “a member of the Defendants inner circle.”
Id. On May 5, 2022, Jenkins filed an additional notice stating,
inter alia, that the defendants have “turned this case into a
‘circus’ ” and stating that this “will be [her] final and only
response to ALL the Court's argued reasons....” Doc. No. 161
at 6; see also Doc. No. 167 at 2 (additional notice filed by
the plaintiff on May 17, 2022, which, in part, reiterates her
desire to reassign the case). On June 13, 2022, I issued an
order denying Jenkins’ motion for recusal. See Doc. No. 169
(written order denying the plaintiff's motion for recusal).
On August 20, 2022, in lieu of a response to the defendants’
motion to strike or dismiss Jenkins’ amended complaint,
Jenkins filed a “final” notice to the court stating, “Hence
let the record show – I, PLAINTIFF is recusing myself
from this Court.” Doc. No. 171 at 1. Jenkins stated several
reasons for her desire to recuse herself, including alleging
that the court and state of Connecticut have conspired with
the defendants and local law enforcement to murder her. See
id. at 4. On August 25, 2022, I issued an order stating that
“[b]ased on [Jenkins’ August 20, 2022 notice], it is unclear
if Jenkins intends to file an opposition to the Defendants’
motion. Accordingly, Jenkins is advised that unless she files
an opposition by September 9, 2022, the notice, doc. no. 171,
will be construed as her opposition to the motion.” Doc. No.
172. Jenkins did not meet the September 9, 2022 deadline.
*10 On September 20, 2022 Jenkins filed an additional
notice on the docket reiterating her desire to recuse herself.
See Doc. No. 173 at 2 (“THIS IS MY ADDITIONAL
NOTICE OF RECUSING MY APPEARANCE IN THIS
COURT.”). She also wrote that the notice was not
in opposition to the defendants’ motion. Id. at 1
(“THIS NOTICE IS NOT AN OPPOS[I]TION AND/OR
RESPONSE TO DEFENSE”).
On September 30, 2022, Jenkins filed another notice. In it, she
alleges, inter alia, that the “State of Connecticut's head demon
and demons” are attempting to murder her. Doc. No. 175 at 2
(cleaned up). To her notice, she attached several documents,
including information about other pending Connecticut state
cases to which she appears to be a party and text messages
that appear to be from an officer of defendant Collins.
She also includes copies of several emails she has sent
to various parties, including to my chambers. One email
dated September 1, 2022 states, inter alia, “I WILL NO
LONGER PARTICIPATE IN ANY COURTS (FEDERAL
AND STATE) WITHIN THE STATE OF CONNECTICUT.”
Doc No. 175 at 40. The email also accuses its recipients of
attempting to kill her; of engaging in “satanic practices of
farming demonic spirits”; of defrauding her “into buying a
house” and “obtain[ing] two federal loans under [her name]
in order “to ensure [she] is homeless and penniless”; of
conspiring with others including law enforcement to stalk and
harass her; and of burning her passport. Id. at 38-40 (cleaned
up). Jenkins further attaches five additional emails sent to
various recipients including my chambers—one sent later in
the afternoon on September 1, 2022, see id. at 41-43; one
sent September 8, 2022, see id. at 44-45; one sent September
27, 2022, see id. at 47-48; and two sent September 28,
2022, see id. at 49-51; id. at 52-53. The emails make several
allegations, many unrelated to the instant case, including
reiterating certain of her allegations regarding the state of
Connecticut. See, e.g., id. at 41-43.
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On October 6, 2022, Jenkins filed an additional notice
with further allegations regarding a purported conspiracy
involving local law enforcement, the state of Connecticut, her
neighbors, and other individuals. See Doc. No. 176. In her
notice, she wrote, “CASE AT BAR IS MERELY USED TO
SILENCE ALL ... MY FOREGOING COMPLAINTS.” Id.
at 7.
On October 21, 2022, Jenkins filed “additional supporting
documents and/or exhibits.” See Doc. No. 177. Among her
attached documents are copies of six emails dated October
8, 10, 12, 14, 20, and 21, 2022 sent to my chambers but
addressed to other recipients concerning matters seemingly
irrelevant to the case at bar, such as her home ownership. Id.
at 15-21, 23, 25-26; 30; 31-33; see also id. at 28 (email to
other recipients, including the Connecticut State Court Clerk,
reiterating similar allegations of conspiracy).
D. Analysis
The defendants seek dismissal of the instant case in its entirety
pursuant to Rule 41(b) for failure to prosecute. In determining
whether to grant the defendants’ request, I will consider
each of the five factors for dismissal pursuant to Rule 41(b)
as outlined by the Second Circuit in LeSane v. Hall's Sec.
Analyst, Inc., 239 F.3d 206, 209 (2d Cir. 2001).
The first factor, the duration of the failures, favors dismissal.
Jenkins’ “failures” date back nearly a year, to March 2022,
when she did not participate in the preparation of a joint
Rule 26(f) report with the defendants. Doc. No. 170-1 at
3-4; see also Doc. No. 127 (the defendants’ Rule 26(f)
Report, filed March 10, 2022). Even if I afford Jenkins
special leniency with respect to her understanding of the Rule
26(f) report requirements, as early as April 11, 2022, Jenkins
began failing to adhere to discovery obligations that were
explained to her. In a status conference in January 2022,
I explained the discovery rules to Jenkins, and in a phone
conference in April 2022, I set discovery deadlines for this
case. See Doc. No. 138; Doc. No. 142. Notwithstanding my
explanation of the discovery rules and deadlines to Jenkins,
Jenkins failed to meet her April 11, 2022 deadline for the
defendants’ interrogatories and document requests. See Doc.
No. 170-1 at 4-5. Apparently, Jenkins has still not responded
to the defendants’ interrogatories and never filed complete
responses to the defendants’ document requests. See id.; Doc.
No. 170-2 at ¶ 9. The lengthy duration of Jenkins’ failures
to comply thus favors dismissal. Cf., Goldberg v. Prestige
Automotor LLC, 2007 WL 9757905, at *1 (D. Conn. Oct. 18,
2007) (“The Second Circuit has upheld dismissals for delays
as short as six months.”) (citing United States ex rel. Drake v.
Norden Systems, Inc., 375 F.3d 248, 255 (2d Cir. 2004); Chira
v. Lockheed Aircraft Corp., 634 F.2d 664 (2d Cir. 1980)).
*11 The second factor, whether plaintiff had received notice
that further delays would result in dismissal, does not favor
dismissal. Prior to this Order, I did not provide Jenkins with
such notice.
The third factor, whether the defendant is likely to be
prejudiced by further delay, favors dismissal. Courts may
presume prejudice by a delay. See United States ex rel. Drake,
375 F.3d at 256-57. Jenkins’ repeated refusal to participate
in this case, which occurred again at this week's scheduled
hearing, moreover, indicates that “extending the litigation will
almost certainly result in continued delay.” Pena v. Zazzle
Inc., 587 F. Supp. 3d 109, 114 (S.D.N.Y. 2022).
The fourth factor, whether the district judge has taken care
to strike the balance between managing the court's docket
and the plaintiff's interest in receiving a fair chance to be
heard, also favors dismissal. Here, I consider whether the
plaintiff's failure “was silent and unobtrusive” or whether it
was “vexatious and burdensome.” LeSane, 239 F.3d at 210.
“There must be compelling evidence of an extreme effect
on court congestion before a litigant's right to be heard is
subrogated to the convenience of the court.” Lucas v. Miles,
84 F.3d 532, 535-36 (2d Cir. 1996). Since the removal of
the instant case in March 2021, Jenkins has filed numerous
notices on the docket. See, e.g., Doc. No. 45; Doc. No.
59; Doc. No. 60; Doc. No. 111; Doc. No. 112. Even if I
were only to look at the period since Jenkins’ first missed
discovery deadline, April 11, 2022, her filings on the docket
would still be numerous. In fact, since April 11, 2022, she
has filed ten filings of various lengths stylized as notices,
exhibits, and responses, many of which contain documents
and allegations irrelevant to the case at bar. See Docs. No.
149, 158, 160, 163, 167, 171, 173, 175, 176, 177. In addition
to those notices and exhibits, she has also filed a number of
written motions since April 11, 2022, including her motion
for a hearing regarding her allegations of the defendants’ use
of law enforcement to retaliate against her, doc. no. 150; her
motion for hearing based on the allegation that the defendants
“left dog feces below [her] kitchen window,” doc. no. 153;
her motion to recuse me, doc. no. 154; and her motion to
strike the defendants’ motion to strike, doc. no. 166. Despite
all those filings, Jenkins has not complied with her discovery
obligations, has refused to respond to the defendants’ recent
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motions, and has repeatedly expressed a refusal to participate
in the case. See, e.g., Doc. No. 170-3 at 51; Doc. No. 173 at
1-2; Doc No. 175 at 40. The plaintiff's failures in the instant
case are therefore more “vexatious and burdensome” than
they are “silent and unobtrusive.” LeSane, 239 F.3d at 210.
Accordingly, the fourth factor weighs in favor of dismissal.
The fifth factor, considerations of sanctions less drastic than
dismissal, does not favor dismissal at the instant stage because
Jenkins has not yet been warned that sanctions could be
imposed for her noncompliance.
Considering all five factors in sum, a dismissal at the instant
stage would be premature because Jenkins was not provided
notice that her noncompliance would result in dismissal
before this Order. Nevertheless, although outright dismissal
at this stage would be premature, the plaintiff's disregard
of discovery deadlines, along with her apparent disinterest
in participating in the instant case, makes court intervention
necessary.
*12 Accordingly, I deny without prejudice the defendants’
motion to dismiss pursuant to Rule 41(b), and I grant the
defendants’ motion to compel. I order the following:
The plaintiff is ordered to respond to the defendants’
interrogatories, the Court's initial discovery protocols, and the
defendants’ document requests, within 21 days of this Order.
The plaintiff is also ordered to sit for a deposition within 45
days of this Order.
This Order shall serve as notice to the plaintiff that if
she does not comply with this Order, her case will be
dismissed. See Local Rule 41(a).
IV. Conclusion
In summary, the defendants’ motion to dismiss or strike,
doc. no. 164, is granted in part and denied without
prejudice in part. Specifically, the defendants’ motion to
dismiss Jenkins’ post-employment claims is granted without
prejudice; the motion to dismiss claims concerning Pratt's
conduct as time-barred is granted with prejudice; the
motion to strike statements related to mediation proceedings
is denied without prejudice; the motion to dismiss the
plaintiff's criminal claims (including the claim raised pursuant
to the “Anti-Lynching Bill”) is granted with prejudice; the
motion to dismiss the plaintiff's claims raised pursuant to the
Equal Protection clause, due process, the First Amendment,
the Privacy Act/Bill of 1975, the Lilly Ledbetter Fair Pay
Act, and Rule 112 [sic] of Criminal Procedure is granted
with prejudice; and the motion to dismiss the plaintiff's
claims raised pursuant to the “U.S. Equal Employment
Opportunity Commission Policy and Practices” is denied
without prejudice to the extent this Court may liberally
construe those claims as arising under Title VII.
The plaintiff's motion to strike the defendants’ motion to
strike, doc. no. 166, is denied.
The defendants’ motion to dismiss pursuant to Rule 41(b) or
to compel, doc. no. 170, is granted in part and denied in
part.
In addition, the plaintiff is ordered to serve Pratt with the
amended complaint and file proof of service on the docket
within 21 days of this Order. The plaintiff is ordered to
respond to the defendants’ interrogatories, the Court's initial
discovery protocols, and the defendants’ document requests
within 21 days of this Order. The plaintiff is also ordered
to sit for a deposition within 45 days of this Order. If the
plaintiff does not comply with this Order, her case will be
dismissed.
If the plaintiff complies with all the requirements of this
Order, her amended complaint may proceed on all claims not
dismissed by this Order.
So ordered.
All Citations
Not Reported in Fed. Supp., 2023 WL 2346576
Footnotes
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1 In her statement of facts, Jenkins refers to several individuals as “Defendants,” and I liberally construe
these individuals to be among the unnamed employees. Those individuals include Justin Blum and Dantaya
Williams. Doc. No. 151 at 5.
2 Although Jenkins’ post-employment retaliation claims are “more properly considered as” supplemental
pleading rather than amendments because they “occurred after the filing of the initial complaint in this action,”
the standard for motions to amend and motions to supplement is “[t]he same.” M.V.B. Collision, Inc. v. Allstate
Ins. Co., 728 F. Supp. 2d 205, 222 (E.D.N.Y. 2010).
3 The plaintiff's citations of McDonnell Douglas Corp v. Green, 411 U.S. 792 (1973); Texas Department of
Community Affairs v. Burdine, 450 U.S. 248 (1981); and Trans World Airlines v. Thurston, 469 U.S. 111
(1985), in support of her post-employment retaliation claim are unavailing. See Doc. No. 151 at 11-12. Those
cases concern discrimination within the scope of employment, and therefore the plaintiff's claim that the
defendants retaliated against her, post-employment, for filing the case at bar is distinguishable.
4 In their motion to dismiss, the defendants only attach Jenkins’ April 24, 2020 CHRO complaint, and it is
based on that CHRO complaint alone that they allege her claims are time barred. 4 See Doc. No. 165-1 at
2. Furthermore, to her original complaint, Jenkins only attaches a release of jurisdiction from a 2020 CHRO
case. Doc. No. 1-1 at 7. I take judicial notice of the CHRO complaint that the defendants filed as an exhibit
attached to their motion to strike or dismiss. See Doc. No. 165-1 at 208; see also Anderson v. Derby Bd. of
Educ., 718 F. Supp. 2d 258, 264 (D. Conn. 2010).
5 One hundred and eighty days from December 31, 2018 is Saturday, June 29, 2019. Because June 29 is a
Saturday, the next deadline is to be measured from Monday, July 1, 2019. Ninety days from Monday, July
1, 2019 is Sunday, September 29, 2019. Because September 29 is a Sunday, the deadline to file the suit
is on Monday, September 30, 2019.
End of Document © 2025 Thomson Reuters. No claim to original U.S. Government Works.
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Johnson v. City of New York, Not Reported in F.Supp.2d (2000)
© 2025 Thomson Reuters. No claim to original U.S. Government Works. 1
2000 WL 1335865
Only the Westlaw citation is currently available.
United States District Court, S.D. New York.
Martin JOHNSON, Plaintiff,
v.
THE CITY OF NEW YORK, Assistant District
Attorney Robert Henoch, Captain of Corrections Martin,
Corrections Officer Schmidt, Corrections Officer Brown
and Unidentified Correction Officers, Defendants.
No. 00CIV.3626(SHS).
|
Sept. 15, 2000.
OPINION AND ORDER
STEIN, D.J.
*1 Martin Johnson has brought this action pursuant to 42
U.S.C. § 1983 seeking monetary damages on the grounds that
the defendants—the City of New York, an Assistant District
Attorney, and certain Corrections Officers—violated his
constitutional rights under the Fourth, Eighth and Fourteenth
Amendments to the U.S. Constitution by failing to protect
him from an attack by fellow inmates against whom he had
arranged to testify. Johnson also asserts two tort claims. The
Assistant District Attorney moves to dismiss the complaint
as it pertains to him pursuant to Fed.R.Civ.P. 12(b)(6) for
failure to state a claim upon which relief can be granted and
pursuant to Fed.R.Civ.P. 12(b)(1) for lack of subject matter
jurisdiction. For the following reasons, the motion is granted
and the complaint is dismissed as to ADA Henoch.
BACKGROUND
The facts are taken from plaintiff's complaint and are assumed
to be true for purpose of this motion. In May of 1998 Johnson
was arrested for allegedly selling crack cocaine. Complaint
at 4. Shortly after his arrest, he entered into a cooperation
agreement with ADA Henoch to testify against several of
his co-defendants. 1 Id. ADA Henoch allegedly “assured”
plaintiff at that time that he “would protect him[ ]” from
possible retaliation by his co-defendants. Id. Johnson claims
that he was being held in Beacon, a housing area on Rikers
Island, which was in “the same general area” as where the
people against whom he was to testify were held and that he
alerted ADA Henoch of this fact. Id. ADA Henoch “explicitly
assured [him] that he would be safe” and that “he would be
placed in protective custody.” Id. at 4–5. Plaintiff also alerted
defendant Corrections Officers Martin, Schmidt, Brown and
“Unidentified Correction Officers” to his danger. Id. at 5.
On February 24, 1999, plaintiff was attacked by fellow
inmates “who called him a snitch as they beat and kicked
him.” Id. As a result of the beating, Johnson suffered a
fractured ankle, injuries to his head, neck and legs, and
damage to his retina that required surgery. Id. ADA Henoch,
after learning of the attack on plaintiff, “acknowledged [his]
prior request for protection.” Id.
As noted above, Johnson has filed this action against the City
of New York, Correction Officers Martin, Schmidt, Brown,
and ADA Henoch and the ADA has moved to dismiss the
complaint on the grounds that it fails to state a constitutional
claim for which relief may be granted and that he is entitled
to either absolute or qualified prosecutorial immunity.
DISCUSSION
When reviewing a motion to dismiss, a court must accept as
true the factual allegations of the complaint and must view
the pleadings in the light most favorable to and draw all
reasonable inferences in favor of the non-moving party. See
Jamison v. Dee, 2000 WL 502871 (S.D.N.Y. April 27, 2000)
(citing Mills v. Polar Molecular Corp., 12 F.3d 1170, 1174 (2d
Cir.1993)). Dismissal of the complaint is only proper when “it
appears beyond doubt that 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 (1957).
I. Absolute Immunity
*2 It is well-established that prosecutors are absolutely
immune from suits for damages arising from actions which
are “intimately associated with the judicial phase of the
criminal process.” Imbler v. Pachtman, 424 U.S. 409, 430–
31, 96 S.Ct. 984, 994–95, 47 L.Ed.2d 128 (1976); see Buckley
v. Fitzsimmons, 509 U.S. 259, 113 S.Ct. 2606, 125 L.Ed.2d
209 (1993). Whether a prosecutor has absolute immunity
“depends principally on the nature of the function performed,
not on the office itself.” Ying Jing Gan v. City of New York,
996 F.2d 522, 530 (2d Cir.1993). Such functions include
the decision to bring charges against a defendant, see Gan,
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996 F.2d at 530, presenting evidence to a grand jury, see
Barret v. United States, 789 F.2d 565, 571–72 (2d Cir.1986),
and the evaluation of evidence prior to trial. See Kalina v.
Fletcher, 522 U.S. 118, 126, 118 S.Ct. 502, 139 L.Ed.2d 471
(1997). Absolute immunity is not available, however, when
a prosecutor “undertakes conduct that is beyond the scope of
his litigation-related duties.” Barbera v. Smith, 836 F.2d 96,
99 (2d Cir.1987).
Barbera v. Smith, 836 F.2d 96, 100, is closely analogous
to this action. In Barbera, the Second Circuit held that a
prosecutor was not entitled to absolute immunity where he
twice refused to provide a cooperating witness with police
protection. Id. at 98. The witness had agreed to testify in return
for a more lenient sentence and was murdered by a contract
killer hired by the target of the prosecutor's investigation.
Id. The Court found that “the government was still seeking
evidence, including testimony from [the victim], that would
enable it to prosecute ...” and that “this task [providing
protection] was [not] so intimately associated with the judicial
phase of the criminal process ...” as to entitle the prosecutor
to absolute immunity. Id.
Here, as in Barbera, defendant's activities were not “so
intimately associated with the judicial phase of the criminal
process” as to entitle him to absolute immunity from suit. See
Gan, 996 F.2d at 531 (“the claim that [the prosecutor] failed
to protect [plaintiff] asserts conduct that plainly is not integral
either to a decision of whether or not to institute a prosecution
or to the conduct of judicial proceedings. Accordingly, if
[defendant] is to be accorded immunity ... it can only be
qualified immunity .”). Therefore absolute immunity is not
available to the district attorney in this action.
II. Qualified Immunity
In general, “the defense of qualified immunity cannot support
the grant of a ... 12(b)(6) motion for failure to state a claim
upon which relief can be granted.” Green v. Maraio, 722
F.2d 1013, 1018 (2d Cir.1983). Qualified immunity is an
affirmative defense that must be pleaded by the official
claiming it. See Satchell v. Dilworth, 745 F.2d 781, 784
(2d Cir.1984) (citing Harlow v. Fitzgerald, 457 U.S. 800,
815, 102 S.Ct. 2727, 72 L.Ed .2d 396 (1982)). Dismissal
for failure to state a claim is thus appropriate where the
complaint itself presents the qualified immunity defense. See,
e.g., Green, 722 F.2d at 1019. The United States Supreme
Court has also held that “unless the plaintiff's allegations state
a claim of violation of clearly established law, a defendant
pleading qualified immunity is entitled to dismissal before
the commencement of discovery.” Mitchell v. Forsyth, 472
U.S. 511, 526, 105 S.Ct. 2806, 86 L.Ed.2d 411 (1985); See
also Robison v. Via, 821 F.2d 913, 920 (2d Cir.1987) (citing
Procunier v. Navarette, 434 U.S. 555, 565 (1978) (prison
officials entitled to dismissal of claims of violating prisoner's
First and Fourteenth Amendment rights by interfering with
mail where such rights had not been clearly established)).
Even when viewed in the light most favorable to plaintiff and
drawing all reasonable inferences in his favor, Mills, 12 F.3d
at 1174, Johnson's allegations regarding the District Attorney
do not state a violation of a clearly established constitutional
right. Thus, dismissal pursuant to Fed.R.Civ.P. 12(b)(6) is
appropriate. See, e.g., Molinelli v. Tucker, 901 F.2d 13, 16 (2d
Cir.1990).
*3 Qualified immunity shields government actors
performing discretionary functions 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.” ’ Lennon v. Miller, 66
F.3d 416, 420 (2nd Cir.1995) (quoting Harlow, 457 U.S. at
818). To determine whether a right was clearly established
at the time defendant acted, the Court must consider: “(1)
whether the right in question was defined ‘with reasonable
specificity’; (2) whether the decisional law of the Supreme
Court and the applicable circuit court support the existence of
the right in question; and (3) whether under preexisting law
a reasonable defendant official would have understood that
his or her acts were unlawful.” Gan, 996 F.2d at 532 (quoting
Jermosen v.. Smith, 945 F.2d 547, 550 (2d Cir.1992)).
The District Attorney claims that he is entitled to qualified
immunity because, even if he had a constitutional duty to
protect Johnson, it was not a clearly established duty. The Due
Process Clause itself does not require the State to protect “the
life, liberty, [or] property of its citizens against invasion by
private actors.” Deshaney v. Winnebago County Dep't of Soc.
Serves, 489 U.S. 189, 195, 109 S.Ct. 998, 1002, 103 L.Ed.2d
249 (1989). Therefore, as a general rule, “a State's failure to
protect an individual against private violence simply does not
constitute a violation of the Due Process Clause.” Id. at 197,
109 S.Ct. at 1004. The only judicially recognized exceptions
to this rule are custodial relationships where “the State takes a
person into its custody and holds him there against his will,”
Id. at 199–200, 109 S.Ct. at 1005 (the “special relationship”
exception), or when the government affirmatively creates or
increases the danger an individual is placed in. See Dwares
v. City of N.Y., 985 F.2d 94, 98–99 (2d Cir.1993) (the “state-
created danger” exception).
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Special relationships that have given rise to a governmental
duty to protect against third-person attacks include “custodial
relationships such as a prison and inmate or a mental
institution and involuntarily committed patient, and the
relationship between a social service agency and foster child.”
Gan, 996 F.2d at 532 (citing cases).
The Second Circuit has also recognized the state-created
danger exception to DeShaney's general rule. See Dwares,
985 F.2d at 99 (police officers agreed in advance with
members of a group to allow the group to assault the plaintiff,
did not interfere during the beating and did not arrest those
who assaulted the plaintiff); Hemphill v. Schott, 141 F.3d
412, 418 (2d Cir.1998) (arresting officers returned gun to
robbery victim and drove him to the scene of suspect's
arrest, where the victim shot the suspect); see also Freeman
v. Ferguson, 911 F.2d 52, 54 (8th Cir.1990) (reversing
dismissal on qualified immunity grounds against police chief
who instructed subordinates to ignore victim's request for
protection from her husband, who was the chief's friend).
*4 Johnson contends that the District Attorney's proffer
of the cooperation agreement and assurance that he would
protect plaintiff conferred upon the District Attorney a
constitutional duty to protect Johnson. 2 Plaintiff claims that
the prosecutor's duty to protect him was clearly established
by DeShaney and by Farmer v. Brennan, 511 U.S. 825,
114 S.Ct. 1970, 128 L.Ed.2d 811 (1994) (prison officials
may be held liable under Eighth Amendment for denying
humane conditions of confinement only if they know that
inmates face substantial risk of serious harm and disregard
that risk by failing to take reasonable measures to abate it).
However, neither DeShaney nor Farmer clearly establish the
law regarding plaintiff's allegations. While the very action
in question need not have been previously held unlawful
for a constitutional right to be clearly established, Duncan
v. Kean, 1995 WL 649931, *3 (S.D.N.Y. Nov. 6, 1995)
(citing Aveni v. Mottola, 35 F.3d 680, 686 (2d Cir.1994)), it
must be “sufficiently clear that a reasonable official would
understand that what he is doing violates that right.” Anderson
v. Creighton, 483 U.S. 635, 639 107 S.Ct. 3034, 3039, 97
L.Ed.2d 523 (1987).
The Second Circuit has twice considered and rejected claims
against prosecutors for failure to protect a witness from attack
by a third party. See Barbera, 836 F.2d at 100–01; Gan, 996
F.2d at 533–34. In Gan, a panel of the Second Circuit wrote
that
“[p]laintiffs have not called to
our attention any case before or
since [Barbera ] ... in which
the lodging of a complaint with
law enforcement officials, or the
complainant's compliance with a
request to identify suspects, either
singly or in combination, has been
held (a) to create a relationship
that gives the complaining witness a
constitutional right to protection, or (b)
to impose a corresponding duty on a
prosecutor.”
Id. at 533–34.
Here, as in Gan, plaintiff points to no case, and the Court
is aware of none, where it has been held that a prosecutor's
alleged promise to protect an inmate who agrees to testify
creates a special relationship that gives rise to a constitutional
right to protection from a third party. Nor is the Court aware
of any decision which has held that the mere proffer of
a cooperation agreement by a prosecutor so increases the
danger to an inmate that it creates a constitutional duty for
the prosecutor to protect the inmate from potential attacks
by third persons. A prison official's willful failure to protect
an inmate from another inmate's violent actions violates the
Constitution if the officer was “deliberate[ly] indifferen[t] to
the consequences of his conduct for those under his control
and dependent upon him,” Morales v. New York State Dep't
of Corrections, 842 F.2d 27, 30 (2d Cir.1988). However, no
corresponding duty has been found to exist between an inmate
and prosecutor.
Based on the limited caselaw in existence at the time of the
alleged attack, and particularly because of the absence of any
caselaw which holds that any state actor other than a prison
official owes a duty to protect an inmate from another inmate's
violent actions, it cannot be said that it was clearly established
that defendant ADA Henoch had created or assumed a special
relationship with Johnson imbuing him with a constitutional
duty to protect him. Therefore, this Court “need not decide
whether [it] would hold that these circumstances create such
a right and corresponding duty, for in the absence of any
such holdings and in the face of the general rule articulated
in DeShaney, it could not have been clear to a reasonable
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Johnson v. City of New York, Not Reported in F.Supp.2d (2000)
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prosecutor that his failure to provide protection ... would
have violated [plaintiff's] rights under the Constitution.” Gan,
996 F.2d at 534. Defendant Henoch is therefore entitled to
qualified immunity.
III. The Pendent State Claims
*5 The ADA's motion to dismiss plaintiff's pendent state
law claims is likewise granted. The Court declines to exercise
supplemental jurisdiction pursuant to 28 U.S.C. § 1367(c)
(3). Accordingly, the state law claims against ADA Henoch
are dismissed without prejudice. See United Mine Workers of
America v. Gibbs, 338 U.S. 715, 726, 86 S.Ct. 1130, 1139, 16
L.Ed.2d 218 (1966); Carnegie–Mellon University v. Cohill,
484 U.S. 343, 350 n. 7, 98 L.Ed.2d 720 (1988); Mayer v. Oil
Field Systems Corp., 803 F.2d 749, 757 (2d Cir.1986).
IV. CONCLUSION
For the reasons set forth above, the prosecutor's motion to
dismiss is granted and the complaint is dismissed as against
the assistant district attorney.
SO ORDERED:
All Citations
Not Reported in F.Supp.2d, 2000 WL 1335865
Footnotes
1 The complaint states that plaintiff entered into the cooperation agreement with ADA Henoch on June 18,
1999. Complaint at 4. Plaintiff's opposition, however, states the cooperation agreement was entered into
in “June of 1998”. Opposition at 2. In addition, plaintiff has recently sought—successfully—to amend the
complaint to allege that the agreement was made in June of 1998. Accordingly, this Court will assume that
plaintiff entered into the cooperation agreement with defendant in June, 1998.
2 Johnson does not specify whether he is claiming defendant Henoch owed a duty to protect him based on the
special relationship or state-created danger exception to the DeShaney rule. For the purpose of this motion,
both arguments will be addressed.
End of Document © 2025 Thomson Reuters. No claim to original U.S. Government Works.
Case 3:25-cv-00103-ECC-ML Document 8 Filed 12/16/25 Page 124 of 201

Joyner v. County of Cayuga, Not Reported in Fed. Supp. (2020)
© 2025 Thomson Reuters. No claim to original U.S. Government Works. 1
2020 WL 1904088
Only the Westlaw citation is currently available.
United States District Court, N.D. New York.
Michael JOYNER, Plaintiff,
v.
COUNTY OF CAYUGA; Cayuga County Sheriff's
Department; City of Auburn; Shawn I. Butler, Chief of
Auburn Police Department, as an Individual and in his
official capacity; Cayuga County District Attorney's
Office; Jon E. Budelmann, as an Individual and in
his capacity as District Attorney for Cayuga County;
and Anthony Spinelli, as an Individual and in his
capacity as an Auburn City Police Officer, Defendants.
5:20-CV-60 (MAD/TWD)
|
Signed 04/17/2020
Attorneys and Law Firms
OF COUNSEL: JARROD W. SMITH, ESQ., OFFICE OF
JARROD W. SMITH, 11 South Main Street, P.O. Box 173,
Jordan, New York 13080, Attorneys for Plaintiff.
OF COUNSEL: JEFFREY R. PARRY, ESQ., OFFICE OF
JEFFREY R. PARRY, 7030 East Genesee Street, Fayetteville,
New York 13066, Attorneys for Plaintiff.
OF COUNSEL: FRANK W. MILLER, ESQ., GIANCARLO
FACCIPONTE, ESQ., OFFICE OF FRANK W. MILLER,
6575 Kirkville Road, East Syracuse, New York 13057,
Attorneys for Defendants.
MEMORANDUM-DECISION AND ORDER
Mae A. D'Agostino, U.S. District Judge:
I. INTRODUCTION
*1 On or about February 18, 2020, Plaintiff filed a complaint
against Defendants City of Auburn, Shawn L. Butler, County
of Cayuga, Cayuga County District Attorney's Office, Jon
E. Budelmann, and Anthony Spinelli, asserting eight claims
pursuant to 42 U.S.C. §§ 1983 and 1988, and state law.
See Dkt. No. 5. Specifically, Plaintiff's complaint alleges the
following causes of action: (1) false arrest under the Fourth
and Fourteenth Amendments; (2) malicious prosecution
under the Fourth and Fourteenth Amendments; (3) negligent
failure to train or supervise; (4) state law false arrest; (5)
state law false imprisonment; (6) intentional and negligent
infliction of emotional distress under New York State law;
(7) negligence; and (8) deliberate indifference to medical care
under the Eighth Amendment. See Dkt. No. 5 at ¶¶ 40-114.
Currently before the Court is Defendants’ motion to dismiss
the complaint in its entirety. See Dkt. No. 9.
II. BACKGROUND
According to the complaint, on August 10, 2018, Plaintiff
was the passenger in a vehicle that was driven by 140 Wall
Street, allegedly in violation of an order of protection for
Linda Fitzsimmons and Lee Joyner, who both reside at that
address. See Dkt. No. 5 at ¶¶ 24-25. Plaintiff resides at 145
Wall Street, several houses down from 140 Wall Street, on the
opposite side of the street. See id. at ¶ 25. Plaintiff was not the
driver of the vehicle and had no control over how the driver
was delivering him to his home. See id.
On August 13, 2018, Plaintiff was arraigned on two felony
complaints charging him with two counts of Criminal
Contempt in the First Degree based on the alleged violation of
the order of protection. See id. at ¶ 22. At the conclusion of his
arraignment, Plaintiff was remanded to the Cayuga County
Jail. See id. Plaintiff claims that “Defendant police officer
lacked the requisite requirement of having probable cause to
arrest the Plaintiff; and did falsely arrest and imprison the
Plaintiff.” Id. at ¶ 23.
On October 4, 2018, Defendant Jon E. Budelmann, in his
capacity as Cayuga County District Attorney, presented
Plaintiff's charges to a grand jury, which “No Billed” the case.
See id. at ¶ 26. At this point, Plaintiff was released from
custody. See id.
During the fifty-three days during which Plaintiff “was being
illegally imprisoned,” he slipped and fell at the Cayuga
County Jail. See id. at ¶ 31. According to Plaintiff, on August
31, 2018, a water pipe burst at the Cayuga County Jail near
Plaintiff's cell while he was already locked in for the night
and sleeping. See id. at ¶ 32. Plaintiff was woken by a
bursting water pipe that was turned off by a Cayuga County
Correctional officer. See id. at ¶ 33. “The first burst of the
water pipe [occurred] when the Cayuga County Correctional
officer shut the water off” between “12:00 midnight and 2:00
a.m.” Id. at ¶ 34. “Plaintiff was woken by a bursting water
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Joyner v. County of Cayuga, Not Reported in Fed. Supp. (2020)
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pipe; and observed and heard that the correctional officer was
going to turn off the water and clean up the water spill. At that
time, there was no water in Plaintiff's cell.” Id.
*2 Unbeknownst to Plaintiff, water from the burst pipe went
underneath his locked cell door “and flooded his room while
he was in bed and asleep.” Id. at ¶ 35. “At around 6:30
am-7:00 am, Plaintiff got out of his bed to use the toilet in
his cell. Plaintiff slipped and fell on the wet floor of his cell.
The water on the floor was all near the toilet in his cell. There
was a huge puddle of water between Plaintiff's bunk and the
toilet in his cell.” Id. at ¶ 36. Plaintiff claims that he slipped
and fell, hitting his head and neck on his bunk, and his lower
back on the floor, causing severe injuries. See id. at ¶ 37. At
the time that Plaintiff had fallen and injured himself, a second
water leak had occurred in the pod in which he was being
held. See id. at ¶ 38. Plaintiff claims that, as a result of the fall,
he suffered a herniated disc in his neck and a lower lumbar
strain. See id. at ¶ 39. Plaintiff also claims that he suffers from
numbing of his toes and finger tips. See id.
III. DISCUSSION
A. Standard of Review
A motion to dismiss for failure to state a claim pursuant
to Rule 12(b)(6) of the Federal Rules of Civil Procedure
tests the legal sufficiency of the party's claim for relief. See
Patane v. Clark, 508 F.3d 106, 111-12 (2d Cir. 2007) (citation
omitted). In considering the legal sufficiency, a court must
accept as true all well-pleaded facts in the pleading 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) (citation omitted). This presumption of truth, however,
does not extend to legal conclusions. See Ashcroft v. Iqbal,
556 U.S. 662, 678 (2009) (citation omitted). Although a
court's review of a motion to dismiss is generally limited to
the facts presented in the pleading, the court may consider
documents that are “integral” to that pleading, even if they are
neither physically attached to, nor incorporated by reference
into, the pleading. See Mangiafico v. Blumenthal, 471 F.3d
391, 398 (2d Cir. 2006) (quoting Chambers v. Time Warner,
Inc., 282 F.3d 147, 152-53 (2d Cir. 2002)).
To survive a motion to dismiss, a party need only plead “a
short and plain statement of the claim,” see 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) (quotation omitted). Under this
standard, the pleading's “[f]actual allegations must be enough
to raise a right of relief above the speculative level,” see
id. at 555 (citation omitted), and present claims that are
“plausible on [their] 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, 127 S. Ct. 1955).
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 [its]
claims across the line from conceivable to plausible, the[ ]
complaint must be dismissed[,]” id. at 570.
B. Documents Considered in Deciding Motion to Dismiss
In their reply to the motion to dismiss, Defendants submitted
several documents in further support of their motion. See
Dkt. No. 16-1. These documents include (1) the August 10,
2018 criminal complaint charging Plaintiff with Criminal
Contempt in the First Degree, (2) the order of protection
that Plaintiff allegedly violated, (3) the affidavit of Linda
Fitzsimmons that formed the basis for Defendant's underlying
criminal charge, and (4) the incident narrative report of
Defendant Spinelli dated August 15, 2018 relating to the
criminal complaint filed against Plaintiff. See id. at 1-6.
*3 In deciding a motion to dismiss for failure to state a claim,
the court considers the complaint, materials incorporated
into the complaint by reference, materials integral to the
complaint, and facts that are capable of judicial notice. See
DiFolco v. MSNBC Cable L.L.C., 622 F.3d 104, 111 (2d Cir.
2010).
In the present matter, the Court finds that these documents
are not properly considered at the motion to dismiss stage.
The Court acknowledges that there are cases in which courts
have considered similar police records at the pleading stage.
See Betts v. Shearman, No. 12-cv-3195, 2013 WL 311124,
*3 (S.D.N.Y. Jan. 24, 2013) (considering incident report
and accusatory instrument that “provide[d] crucial details”
about the plaintiff's prosecution), aff'd on qualified immunity
grounds, 751 F.3d 78 (2d Cir. 2014); cf. Obilo v. City
Univ. of City of N.Y., No. 01-cv-5118, 2003 WL 1809471,
*4 (E.D.N.Y. Apr. 7, 2003) (considering incident report
and police complaint that the plaintiff had conceded were
“implicitly” incorporated into his conspiracy allegations).
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The better view, however, adopted by a majority of courts
in our Circuit, is that these kinds of police records are not
“integral” to a false arrest complaint. See Bejaoui v. City
of New York, No. 13-CV-5667, 2015 WL 1529633, *4–5
(E.D.N.Y. Mar. 31, 2015) (noting disagreement and declining
to consider extrinsic police reports); Alvarez v. Cty. of Orange,
95 F. Supp. 3d 385, 394-95 (S.D.N.Y. 2015) (collecting
cases). A document is not “integral” simply because its
contents are highly relevant to a plaintiff's allegations, but
only when it is clear that the plaintiff relied on the document
in preparing his complaint. See Global Network Commc'ns,
Inc. v. City of New York, 458 F.3d 150, 156-57 (2d Cir.
2006); Chambers v. Time Warner, Inc., 282 F.3d 147, 153 (2d
Cir. 2002). Most typically, “the incorporated document is a
contract or other legal document containing obligations upon
which the plaintiff's complaint stands or falls, but which for
some reason ... was not attached to the complaint.” Global
Network Commc'ns, 458 F.3d at 157. “It must also be clear
that there exist no material disputed issues of fact regarding
the relevance of the document.” Faulkner v. Beer, 463 F.3d
130, 134 (2d Cir. 2006).
Here, there is “no indication in the record that plaintiff
relied on these documents in drafting the complaint.” Allyn
v. Rockland Cty., No. 12-cv-5022, 2013 WL 4038602, *4
(S.D.N.Y. July 30, 2013), affirmed, 646 Fed. Appx. 60 (2d Cir.
2016). To the contrary, Plaintiff relies on his own perceptions
and recollections, while only making passing reference to
the criminal complaint and order of protection. Furthermore,
it is not beyond dispute that the police report and narrative
are a truthful description of the police officer's basis to
arrest Plaintiff. To accept the truth of the documents offered
by Defendants at this stage would amount to a premature
determination that the arresting officers and the alleged victim
are more credible than Plaintiff. To make such a determination
at this stage would not be appropriate, and therefore the Court
will not consider the facts adduced in these documents. The
Court will, however, take judicial notice of the existence of
the criminal complaint, supporting affidavit, and order of
protection. See Williams v. City of New York, No. 14-cv-5123,
2015 WL 4461716, *1 (S.D.N.Y. July 21, 2015) (noting that
the court “may take judicial notice of the procedural history
of plaintiff's criminal case, but not of the truth of the arresting
officers’ version of events”); see also Ribaudo v. Desimone,
No. 3:18-cv-1190, 2019 WL 1906269, *4 (M.D. Pa. Apr. 5,
2019) (holding that “even if judicial notice is taken of these
documents, ‘a court may take notice of such documents only
to establish their existence and legal effect, or to determine
what statements they contained ... not for the truth of the
matters asserted’ ”) (quoting Fine v. ESPN, Inc., 11 F. Supp.
3d 209, 223 (N.D.N.Y. 2014)) (other citation omitted).
C. Monell and Supervisory Liability
*4 “Under the standards of Monell v. Department of Social
Services, 436 U.S. 658, 98 S. Ct. 2018, 56 L. Ed. 2d 611
(1978), a municipality can be held liable under [42 U.S.C. §
1983] if the deprivation of the plaintiff's rights under federal
law is 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). Liability under Section 1983 “is imposed on
the municipality [only] when it has promulgated a custom or
policy that violates federal law and, pursuant to that policy, a
municipal actor has tortiously injured the plaintiff.” Askins v.
Doe No. 1, 727 F.3d 248, 253 (2d Cir. 2013). “Absent such a
custom, policy, or usage, a municipality cannot be held liable
on a respondeat superior basis for the tort of its employee.”
Jones, 691 F.3d at 80. Thus, for a municipality to be held
liable under Section 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.” Wray v. City of New York, 490 F.3d 189, 195 (2d Cir.
2007) (internal quotation marks omitted).
“Supervisory liability is a concept distinct from municipal
liability, and is ‘imposed against a supervisory official in his
individual capacity for his own culpable action or inaction
in the training, supervision, or control of his subordinates.’
” Kucera v. Tkac, No. 5:12-cv-264, 2013 WL 1414441, *4
(D. Vt. Apr. 8, 2013) (quoting Odom v. Matteo, 772 F. Supp.
2d 377, 403 (D. Conn. 2011)). Prior to the Supreme Court's
decision in Ashcroft v. Iqbal, 556 U.S. 662 (2009), the Second
Circuit required a plaintiff to allege one of the following
categories for supervisory liability under § 1983:
(1) the defendant participated directly
in the alleged constitutional violation,
(2) the defendant, after being informed
of the violation through a report or
appeal, failed to remedy the wrong,
(3) the defendant created a policy or
custom under which unconstitutional
practices occurred, or allowed the
continuance of such a policy or
custom, (4) the defendant was grossly
negligent in supervising subordinates
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who committed the wrongful acts, or
(5) the defendant exhibited deliberate
indifference to the rights of [persons]
by failing to act on information
indicating that unconstitutional acts
were occurring.
Colon v. Coughlin, 58 F.3d 865, 873 (2d Cir. 1995).
In order to succeed on his Monell and supervisory liability
claims, a plaintiff must first “identify obvious and severe
deficiencies” in the policies of the municipal and supervisory
defendants and “show a causal relationship” between
those deficiencies and his alleged deprivations. Reynolds
v. Giuliani, 506 F.3d 183, 193 (2d Cir. 2007). However,
to the extent that a plaintiff premises his claims on a
failure to train or supervise, such failure “may constitute
an official policy or custom [only] if the failure amounts
to ‘deliberate indifference’ to the rights of those with
whom the city employees interact.” Wray, 490 F.3d at 195.
Similarly, a supervisory defendant is liable only for the
creation or continuation of policy that leads to a pattern
of unconstitutional conduct or if he demonstrated deliberate
indifference in failing to act on information that a pattern of
unconstitutional conduct was occurring. See Colon, 58 F.3d
at 873.
“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.” Jones, 691 F.3d at 81.
A pattern of similar constitutional
violations by untrained employees is
“ordinarily necessary” to demonstrate
deliberate indifference for purposes of
failure to train [or supervise because]
[w]ithout 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.
*5 Connick v. Thompson, 563 U.S. 51, 62 (2011) (quoting
Bd. of Cty. Comm'rs of Bryan Cty. v. Brown, 520 U.S. 397,
409, 117 S. Ct. 1382, 137 L. Ed. 2d 626 (1997)). “[W]hen
city policymakers are on actual or constructive notice that
a particular omission in their training program causes city
employees to violate citizens’ constitutional rights, the city
may be deemed deliberately indifferent if the policymakers
choose to retain that program.” Id. at 61 (citation omitted). 1
D. Cayuga County District Attorney's Office and
Auburn Police Department
Plaintiff names the Cayuga County District Attorney's Office
as a named Defendant in this case. The caselaw is clear,
however, that a district attorney's office is not an entity subject
to suit under 42 U.S.C. § 1983. See Michels v. Greenwood
Lake Police Dep't, 387 F. Supp. 2d 361, 367 (S.D.N.Y.
2005) (citing cases); Griffith v. Sadri, No. 07-CV-4824,
2009 WL 2524961, *8 (E.D.N.Y. Aug. 14, 2009). Similarly,
Plaintiff has listed the Auburn Police Department as an entity
responsible for several of the alleged constitutional violations.
See Dkt. No. 5 at ¶¶ 51-82. As with the District Attorney's
Office, the Auburn Police Department (which is not listed as
a Defendant in the caption of the complaint), the Court finds
that it must be dismissed because a police department is not
an independent, suable entity separate from the municipality
in which the police department is located. See Jenkins v.
City of New York, 478 F.3d 76, 93 (2d Cir. 2007) (citation
omitted); Krug v. City of Rennselaer, 559 F. Supp. 2d 223, 247
(N.D.N.Y. 2008) (citing cases); Koulkina v. City of New York,
559 F. Supp. 2d 300, 315 (S.D.N.Y. 2008) (citing cases).
Accordingly, the Court dismisses Plaintiff's claims against the
Cayuga County District Attorney's Office and the Auburn
Police Department.
E. False Arrest
In their motion to dismiss, Defendants contend that, based
on Plaintiff's own allegations, probable cause was present
to believe that he committed the offense for which he was
arrested. See Dkt. No. 9-1 at 14-16. Defendants claim that
Plaintiff “admits that he was charged with violating duly
issued orders of protection issued for Linda Fitzsimmons and
Lee Joyner, who reside at 140 Wall Street in the City of
Auburn. See id. at 15 (citing Dkt. No. 5 at ¶ 24). Defendants
further claim that Plaintiff “admits he was ‘driven by’ 140
Wall Street on August 10, 2018.” Id. (citing Dkt. No. 5 at ¶
25). Defendants contend that the fact that Plaintiff claims that
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he was not driving the vehicle “has no bearing on whether the
order of protection was reasonably deemed violated by police
authorities, and Plaintiff is careful not to deny that he was
in fact at 140 Wall Street on the date in question, which is a
per se violation of the order.” Id. In response, Plaintiff argues
that since he “was arrested for traveling on a public road in
route to his own home and in violation of no Order, law or
ordinance and, as it cannot be denied that he was ‘no billed’
by the Grand Jury, it would seem plausible to this writer that
any court would agree to the plausibility of Plaintiff's claims.”
Dkt. No. 10 at 16.
*6 In assessing Fourth Amendment claims of false arrest
brought under Section 1983, courts generally look to the law
of the state in which the arrest is alleged to have occurred. See
Russo v. City of Bridgeport, 479 F.3d 196, 203 (2d Cir. 2007)
(citation omitted). To prevail on a false arrest claim under
New York law, a plaintiff has to prove the following: “(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.” Singer v. Fulton Cnty. Sheriff, 63 F.3d
110, 118 (2d Cir. 1995) (alteration and internal quotation
marks omitted) (quoting Broughton v. State, 37 N.Y.2d 451,
456, 373 N.Y.S.2d 87, 335 N.E.2d 310 (1975)); see also
Ackerson v. City of White Plains, 702 F.3d 15, 19 (2d Cir.
2012) (outlining the elements of false arrest claims). “The
existence of probable cause to arrest constitutes justification
and ‘is a complete defense to an action for false arrest.’ ”
Weyant v. Okst, 101 F.3d 845, 852 (2d Cir. 1996) (quoting
Bernard v. United States, 25 F.3d 98, 102 (2d Cir. 1994)); see
also Ackerson, 702 F.3d at 19-20 (citing Weyant, 101 F.3d at
852). “A police officer has probable cause for an arrest when
he 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[.]’ ”
Swartz v. Insogna, 704 F.3d 105, 111 (2d Cir. 2013) (quoting
Weyant, 101 F.3d at 852); Gonzalez v. City of Schenectady,
728 F.3d 149, 155 (2d Cir. 2013) (same). Such knowledge
or information can be based on information provided by an
eyewitness, unless the circumstances would raise a doubt as
to the eyewitness’ veracity. See Curley v. Vill. of Suffern, 268
F.3d 65, 70 (2d Cir. 2001) (citing Singer, 63 F.3d at 119). The
question is whether the facts known to the arresting officer, at
the time of the arrest, objectively provided probable cause to
support the arrest. See Gonzalez, 728 F.3d at 155.
In the present matter, the Court finds that Defendants’ motion
to dismiss Plaintiff's false arrest claim must be denied as to
Defendant Spinelli. The complaint sufficiently alleges, albeit
barely, that Defendant Spinelli lacked probable cause to arrest
Plaintiff for the crime of Criminal in the First Degree. Indeed,
it is unclear from the complaint whether Plaintiff's conduct
was, in fact, in violation of the order of protection. 2
However, to the extent that Plaintiff attempts to assert a
false arrest claim against any other named Defendant, the
claim must be dismissed. Plaintiff's complaint is devoid
of any facts that would permit the Court to find that any
other Defendant was personally involved in the alleged false
arrest. Aside from conclusory allegations merely reciting
the underlying law, Plaintiff fails to include any facts that
plausibly allege the personal involvement of any municipal
or supervisory Defendant. For example, Plaintiff alleges that
“Defendant Butler, Defendant City and Defendant County
have created and tolerated an atmosphere of lawlessness, and
have developed and maintained long-standing, department-
wide customs, law enforcement related policies, procedures,
customs, practices, and/or failed to properly train and/or
supervise its officers in a manner amounting to deliberate
indifference to the constitutional rights of Plaintiff and of the
public.” Dkt. No. 78 at ¶ 78. While this allegation accurately
reflects what is required to hold municipal and supervisory
officials personally liable for the acts of other, the simple
recitation of the relevant law is insufficient to withstand a
motion to dismiss. Rather, Plaintiff was required to allege
facts, specific to his case, demonstrating how these municipal
and supervisory Defendants were personally involved in the
alleged unconstitutional conduct, which he has failed to do.
Simply put, the legal conclusions in Plaintiff's complaint,
devoid of any supporting facts, fail to plausibly allege
supervisory or municipal liability as to this claim.
*7 Accordingly, the Court denies Defendants’ motion to
dismiss Plaintiff's false arrest claim as to Defendant Spinelli.
F. Malicious Prosecution
In their motion to dismiss, Defendants argue that Plaintiff's
malicious prosecution must be dismissed because the
complaint fails to set forth facts plausibly alleging that the
prosecution was initiated without probable cause or that any
named Defendant acted with the requisite malice. See Dkt.
No. 9-1 at 16-17. In response, Plaintiff states as follows: “As
the plaintiff was arrested for traveling on a public road in
route to his own home and in violation of no Order, law
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or ordinance, as it cannot be denied that he was ‘no billed’
by the Grand Jury and as he spent 53 days in jail for no
reason whatsoever, it would seem plausible to this writer
that any court would agree to the plausibility of Plaintiff's
claims.” Dkt. No. 10 at 17 (citing Swierkiezicz v. Sorema, 534
U.S. 506 (2002)). Plaintiff brings his malicious prosecution
claim against the City of Auburn, Auburn Police Department,
Cayuga County, and Defendant Butler. See Dkt. No. 5 at ¶¶
51-82. While Plaintiff may be confident in the viability of his
claim, this Court finds that Plaintiff has failed to plausibly
allege facts supporting a claim for malicious prosecution. 3
To prevail on a Section 1983 claim for malicious prosecution,
“a plaintiff must show a violation of his rights under the
Fourth Amendment ... and must establish the elements of a
malicious prosecution claim under state law.” Manganiello v.
City of New York, 612 F.3d 149, 161 (2d Cir. 2010) (citations
omitted). Under New York law, a plaintiff must plausibly
allege four elements to support a malicious prosecution
claim: “ ‘(1) the initiation or continuation of a criminal
proceeding against plaintiff; (2) termination of the proceeding
in plaintiff's favor; (3) lack of probable cause for commencing
the proceeding; and (4) actual malice as a motivation for
defendant's actions.’ ” Id. (quotation and other citations
omitted); see also Dufort v. City of New York, 874 F.3d
338, 350 (2d Cir. 2017) (quotation omitted). Initiating a
criminal proceeding against a person without probable cause,
coupled with a deprivation of liberty, is a Fourth Amendment
violation. See Murphy v. Lynn, 118 F.3d 938, 944-45 (2d Cir.
1997) (citation omitted).
*8 The Second Circuit has held that although “police
officers do not generally “commence or continue” criminal
proceedings against defendants, a claim for malicious
prosecution can still be maintained against a police officer if
the officer is found to ‘play[ ] an active role in the prosecution,
such as giving advice and encouragement or importuning the
authorities to act.’ ” Bermudez v. City of New York, 790 F.3d
368, 377 (2d Cir. 2015) (quotations omitted). “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.” Id. (citation omitted).
Recently, the New York Court of Appeals acknowledged that
it has “ ‘never elaborated on how a plaintiff in a malicious
prosecution case demonstrates that the defendant commenced
or continued the underlying criminal proceeding.’ ” Torres
v. Jones, 26 N.Y.3d 742, 760-61 (2016) (quotation omitted).
“But, by suggesting that a defendant other than a public
prosecutor may be liable for supplying false information to
the prosecutor in substantial furtherance of a criminal action
against the plaintiff, we have implicitly recognized that such
conduct may, depending on the circumstances, constitute the
commencement or continuation of the prosecution.” Id. at 761
(citations omitted); see also Colon v. City of New York, 60
N.Y.2d 78, 82 (1983) (noting that proof establishing “that the
police witnesses” have falsified evidence may create liability
for malicious prosecution); Hopkinson v. Lehigh Val. R.R. Co.,
249 N.Y. 296, 300-01 (1928) (noting that the falsification of
evidence and presentation of that evidence to the prosecutor
can constitute commencement of a prosecution).
1. Initiation of Criminal Prosecution
In the present matter, the Court finds that Plaintiff's malicious
prosecution claim must be dismissed. Initially, the Court
finds that Plaintiff has failed to adequately allege that any
named Defendant initiated that the prosecution against him.
While Defendant Spinelli filed the criminal complaint against
him, nothing in the complaint suggests his participation
in Plaintiff's prosecution beyond that. Nearly all cases in
which law enforcement officers were found to have initiated
or continued a prosecution for purposes of a malicious
prosecution claim involve officers who provided knowingly
false and/or fabricated evidence to unwitting prosecutors.
See, e.g., Ricciuti v. N.Y.C. Transit Auth., 124 F.3d 123, 130
(2d Cir. 1997); Ramos v. City of New York, 285 A.D.2d
284, 299 (1st Dep't 2001). There is a rebuttable presumption
that criminal proceedings are initiated by prosecutors, not
arresting officers. See Mitchell v. Victoria Home, 434 F. Supp.
2d 219, 228 (S.D.N.Y. 2006) (citation omitted). “[I]n the
absence of evidence that the police officer misled or pressured
the official who could be expected to exercise independent
judgment,” a claim of malicious prosecution against the
officer must fail. See Townes v. City of New York, 176 F.3d
138, 147 (2d Cir. 1999) (citations omitted).
Plaintiff's complaint is devoid of any allegations that
Defendant Spinelli engaged in any of the conduct identified
above that would permit the Court to find that Plaintiff
plausibly alleged that any party other than the District
Attorney initiated the prosecution against him. As such, the
Court finds that Plaintiff's malicious prosecution claim is
subject to dismissal.
2. Malice
Plaintiff's complaint is also devoid of any facts supporting
an inference that the prosecution was instituted with malice.
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As Defendants correctly note, Plaintiff misconstrues the
standard on a motion to dismiss. While Plaintiff is not
required to “prove” that Defendants acted in a malicious
manner to sustain his claim, he is certainly required to plead
enough facts that would make such a conclusion plausible.
Plaintiff's complaint fails to plead any facts that would
support the inference that any named Defendant (or their
employees) acted with the requisite malice to support a
malicious prosecution claim. Rather, the complaint simply
alleges that he was subjected to normal processes of law. The
number of days that Plaintiff spent in jail is irrelevant to this
consideration, as is the fact that he was “no billed” by the
Grand Jury. Plaintiff does not allege that he had previous
interactions with any of the named Defendants, or that his
interactions with them during his arrest and subsequent
prosecution would indicate a malicious intent. Finally, as
to the supervisory and municipal Defendants, Plaintiff has
failed to put forth any facts in support of this claim. Rather,
the complaint contains nothing but legal conclusions without
providing any basis for the Court to conclude that Plaintiff has
plausibly alleged a malicious prosecution claim against these
Defendants.
*9 Accordingly, the Court finds that Plaintiff's malicious
prosecution claim is subject to dismissal on this alternative
ground.
3. Prosecutorial Immunity
Prosecutors sued under 42 U.S.C. § 1983 enjoy absolute
immunity “ ‘from claims for damages arising out of
prosecutorial duties that are “intimately associated with
the judicial phase of the criminal process.” ’ ” Okongwu
v. County of Erie, No. 14CV832, 2017 WL 2686454, *3
(W.D.N.Y. June 22, 2017) (quoting Doe v. Phillips, 81 F.3d
1204, 1209 (2d Cir. 1996) (quoting Imbler v. Pachtman, 424
U.S. 409, 430 (1976))). The prosecutor enjoys this absolute
immunity because he or she is acting in a quasi-judicial
capacity. See Okongwu v. County of Erie, No. 14CV832,
2018 WL 1383233, *3 (W.D.N.Y. Mar. 19, 2018). The
function performed by the prosecutor defines the scope of
this immunity. See Imbler, 424 U.S. at 430; Warney, 587 F.3d
at 121. Acts of advocacy before a court, or preparation to
advocate, are absolutely immune, Imbler, 424 U.S. at 430-31;
see also Buckley v. Fitzsimmons, 509 U.S. 259, 273 (1993),
while administrative duties or investigatory functions are not
so immune, Imbler, 424 U.S. at 431 n.33; Buckley, 509 U.S. at
273; Warney, 587 F.3d at 121. “This protection encompasses
‘all of their activities that can fairly be characterized as
closely associated with the conduct of litigation or potential
litigation.’ ” Peters, 848 F. Supp. 2d at 385 (quoting Barrett v.
United States, 798 F.2d 565, 571-72 (2d Cir. 1986)). As noted
by the Second Circuit, “thus, to establish [absolute] immunity,
the ‘ultimate question’ is ‘whether the prosecutors have
carried their burden of establishing that they were functioning
as “advocates” when they engaged in the challenged conduct.’
” Warney, 587 F.3d at 121 (quoting Doe v. Phillips, 81 F.3d
1204, 1209 (2d Cir. 1996)).
Absolute immunity extends from the initiation of a
prosecution and presenting a case at trial, Boria v. Hicks, No.
5:17-CV-00486, 2017 WL 2983304, *4 (N.D.N.Y. June 14,
2017), through the decision to end it, see Okongwu, 2017
WL 2686454, at *4, as well as post-conviction defense of
proceedings and the decision whether to vacate a conviction,
Warney, 587 F.3d at 123; Peters, 848 F. Supp. 2d at 387.
Absolute immunity applies in the preparation for the initiation
of judicial proceedings, but not to the investigative or
administrative duties of a prosecutor. See Warney, 587 F.3d at
122. In Peters, the court listed activities that are investigative
or administrative that do not deserve absolute immunity,
such as orchestrating a sting operation, authorizing wiretaps,
coercing confidential informant to consent to a wire, releasing
information to the media, assisting in the execution of a
warrant, or supervising and interacting with law enforcement
agents to acquire evidence. See Peters, 848 F. Supp. 2d at 386
(citing cases).
In the present matter, the Court finds that Defendant
Budelmann, as Cayuga County District Attorney is entitled
to absolute prosecutorial immunity. In the complaint, Plaintiff
alleges that “[o]n October 4, 2018, Defendant district attorney
presented Plaintiff's criminal charges to the Grand Jury of
Cayuga County where the grand jury ‘No Billed’ the case;
and Plaintiff was released from his illegal confinement at
the Cayuga County Jail.” Dkt. No. 5 at ¶¶ 26, 91. Further,
Plaintiff claims that “Defendant district attorney knew at the
time of Plaintiff's case being presented to the Grand Jury of
Cayuga County that he would not prevail due to the lack of
probable cause.” Id. at ¶ 29. These allegations make clear
that Defendant Budelmann has been sued relating to his role
in presenting the case to the grand jury; conduct for which
he is entitled to absolute prosecutorial immunity. See Hill
v. City of New York, 45 F.3d 653, 661-62 (2d Cir. 1995)
(holding that “that prosecutors are immune from § 1983
liability for their conduct before a grand jury”) (citations
omitted); Bernard v. County of Suffolk, 356 F.3d 495, 505 (2d
Cir. 2004) (citations omitted). Accordingly, Plaintiff's claim
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of malicious prosecution against Defendant Budelmann is
subject to dismissal on this alternative ground.
*10 Finally, to the extent that Plaintiff seeks to impute
the conduct of Defendant Budelmann to Cayuga County, the
claim must necessarily be dismissed. The Second Circuit
Court of Appeals has unequivocally held that “prosecutorial
acts may not fairly be said to represent official policy of
the County,” because “[w]hen prosecuting a criminal matter,
a district attorney in New York State, acting in a quasi-
judicial capacity, represents the State not the county.” Baez
v. Hennessy, 853 F.2d 73 (2d Cir. 1988) (internal quotation
omitted); see also Doe v. Smith, 704 F. Supp. 1177, 1184
(S.D.N.Y. 1988). Since Defendant Budelmann was acting on
behalf of the State of New York, and not Cayuga County, any
alleged misconduct on Defendant Budelmann's part cannot be
imputed to Cayuga County.
G. Negligent/Intentional Infliction of Emotional Distress
In his sixth cause of action, Plaintiff alleges claims of
negligent and intentional infliction of emotional distress
against Defendants Butler, Spinelli, and Budelmann. See Dkt.
No. 5 at ¶¶ 96-98. Defendants contend these claims fail as a
matter of law. See Dkt. No. 9-1 at 19-20.
As to the claim of negligent infliction of emotional distress,
it is well settled that 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.’ ” Greenaway v. Cty. of Nassau,
97 F. Supp. 3d 225, 239 (E.D.N.Y. 2015) (quoting Secard
v. Dep't of Soc. Servs. of Cnty. of Nassau, 204 A.D.2d 445,
612 N.Y.S. 2d 167, 168 (2d Dep't 1994)). This is precisely
what Plaintiff is attempting to do here. Tacking on a claim
for negligent infliction of emotional distress without any
other facts or assertions is insufficient under the relevant law.
Moreover, even if this claim could be considered independent
of Plaintiff's false arrest claim, it is still subject to dismissal
because Plaintiff has not alleged any facts demonstrating that
Defendants breached a duty owed to Plaintiff. As such, the
Court grants Defendants’ motion to dismiss as to Plaintiff's
claim of negligent infliction of emotional distress.
As to the intentional infliction of emotional distress claim,
it too must be dismissed. “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, 97 F. Supp. 3d at 239-40
(quoting Howell v. N.Y. Post Co., Inc., 81 N.Y.2d 115, 596
N.Y.S. 2d 350, 612 N.E. 2d 699, 702 (1993)). “The ‘extreme
and outrageous conduct’ must ‘go beyond all possible bounds
of decency’ and be ‘atrocious, and utterly intolerable in
a civilized community.’ ” Id. (quotation and other citation
omitted).
Here, Plaintiff claims that Defendants Budelmann, Spinelli,
and Butler engaged in “extreme and outrageous conduct,
which intentionally and/or negligently caused severe
emotional distress to Plaintiff.” Dkt. No. 5 at ¶ 97. Notably
absent from the complaint is any explanation what this
“extreme and outrageous conduct” was. “ ‘Liability has been
found only where the conduct has been so outrageous in
character, and so extreme in degree, as to go beyond all
possible bounds of decency, and to be regarded as atrocious,
and utterly intolerable in a civilized community.’ ” Murphy v.
American Home Products Corp., 58 N.Y.2d 293, 302 (1983)
(quotation omitted). The threadbare facts alleged by Plaintiff,
which include the fact that he was arrested and eventually
released after the grand jury refused to indict, fall far short of
this strict standard.
*11 Accordingly, the Court grants Defendants’ motion
to dismiss Plaintiff's claims for negligent and intentional
infliction of emotional distress.
H. Negligence
In his seventh cause of action, Plaintiff asserts a claim for
negligence. See Dkt. No. 5 at ¶¶ 100-04. In this claim, Plaintiff
argues that his arrest, Defendants’ failure to “follow the
criminal law of the State of New York,” and Plaintiff's fifty-
three days of incarceration, were the product of Defendants’
negligence. See id.
“To prevail on a claim for negligence under New York law,
a plaintiff must establish ‘(1) the existence of a duty on
the defendant's part as to the plaintiff; (2) a breach of that
duty; and (3) resultant injury to the plaintiff.’ ” Frederique v.
County of Nassau, 168 F. Supp. 3d 455, 485 (E.D.N.Y. 2016)
(quotation omitted). “However, ‘[u]nder New York law, harm
predicated on an intentional act may not give rise to a claim
of negligence.’ ” Id. (quotation and other citation omitted).
Moreover, it is well settled that, “[u]nder 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
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a prosecution.” Bernard v. United States, 25 F.3d 98, 102
(2d Cir. 1994) (citing Boose v. City of Rochester, 71 A.D.2d
59, 421 N.Y.S.2d 740, 743 (4th Dept. 1979)) (other citation
omitted).
In the present matter, the Court finds that Plaintiff's
negligence claim must be dismissed as it is simply redundant
of Plaintiff's claims of false arrest, false imprisonment,
and malicious prosecution. Accordingly, the Court grants
Defendants’ motion to dismiss as to this claim.
I. Deliberate Indifference to Serious Medical Needs
In his eighth cause of action, Plaintiff claims that “Defendant
Medical Staff and Defendant Cayuga County Sheriff's
Department” were deliberately indifferent to his medical care
and treatment after he was injured when a water pipe broke
outside his cell on August 31, 2018. See Dkt. No. 5 at ¶¶
105-14.
A pretrial detainee's claims of unconstitutional conditions of
confinement are governed by the Due Process Clause of the
Fourteenth Amendment, rather than the Cruel and Unusual
Punishments Clause of the Eight Amendment. See Darnell v.
Pineiro, 849 F.3d 17, 29 (2d Cir. 2017) (citations omitted).
A pretrial detainee's claims are evaluated under the Due
Process Clause because, “ ‘[p]retrial detainees have not been
convicted of a crime and thus ‘may not be punished in any
manner — neither cruelly and unusually nor otherwise.’ ” Id.
(quotations omitted).
“A pretrial detainee may establish a § 1983 claim for
allegedly unconstitutional conditions of confinement by
showing that the officers acted with deliberate indifference to
the challenged conditions.” Darnell, 849 F.3d at 29 (citation
omitted). “This means that a pretrial detainee must satisfy
two prongs to prove a claim, an ‘objective prong’ showing
that the challenged conditions were sufficiently serious to
constitute objective deprivations of the right to due process,
and a ‘subjective prong’ — perhaps better classified as a
‘mens rea prong’ or ‘mental element prong’ — showing
that the officer acted with at least deliberate indifference to
the challenged conditions.” Id. “The reason that the term
‘subjective prong’ might be a misleading description is that,
as discussed below, the Supreme Court has instructed that
‘deliberate indifference’ roughly means ‘recklessness,’ but
‘recklessness’ can be defined subjectively (what a person
actually knew, and disregarded), or objectively (what a
reasonable person knew, or should have known).” Id. (citing
Farmer v. Brennan, 511 U.S. 825, 836-37, 114 S. Ct. 1970,
128 L. Ed. 2d 811 (1994)).
*12 Under both the Eighth and Fourteenth Amendments,
to establish an objective deprivation, “the inmate must show
that the conditions, either alone or in combination, pose
an unreasonable risk of serious damage to his health,”
which includes the risk of serious damage to “physical and
mental soundness.” Id. at 30 (citations omitted). “There is no
‘static test’ to determine whether a deprivation is sufficiently
serious; instead, ‘the conditions themselves must be evaluated
in light of contemporary standards of decency.’ ” Id. (quoting
Blissett v. Coughlin, 66 F.3d 531, 537 (2d Cir. 1995) (citing
Rhodes v. Chapman, 452 U.S. 337, 346, 101 S. Ct. 2392,
69 L. Ed. 2d 59 (1981))). For example, the Second Circuit
has “ ‘held that prisoners may not be deprived of their basic
human needs — e.g., food, clothing, shelter, medical care,
and reasonable safety — and they may not be exposed to
conditions that pose an unreasonable risk of serious damage
to [their] future health.’ ” Id. (quoting Jabbar v. Fischer, 683
F.3d 54, 57 (2d Cir. 2012)).
“ ‘[C]onditions of confinement may be aggregated to rise to
the level of a constitutional violation, but only when they
have a mutually enforcing effect that produces the deprivation
of a single, identifiable human need such as food, warmth,
or exercise.’ ” Darnell, 849 F.3d at 30 (quotations omitted).
“Unsanitary conditions, especially when coupled with other
mutually enforcing conditions, such as poor ventilation and
lack of hygienic items (in particular, toilet paper), can rise to
the level of an objective deprivation.” Id. (citations omitted).
The second element of a conditions of confinement claim
brought under the Due Process Clause of the Fourteenth
Amendment is the defendant's “deliberate indifference”
to any objectively serious condition of confinement. See
Darnell, 849 F.3d at 32. Courts have traditionally referred
to this second element as the “subjective prong.” “But
‘deliberate indifference,’ which is roughly synonymous with
‘recklessness,’ can be defined either ‘subjectively’ in a
criminal sense, or ‘objectively’ in a civil sense.” Id. As such,
the “subjective prong” might better be described as the “mens
rea prong” or “mental element prong.” Id.
Under the second prong of the deliberate indifference
analysis, the Court must consider whether the defendants
“acted intentionally to impose the alleged condition, or
recklessly failed to act with reasonable care to mitigate the
risk that the condition posed to the pretrial detainee even
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though [they] knew, or should have known, that the condition
posed an excessive risk to health or safety.” Darnell, 849 F.3d
at 35. Under this standard, the plaintiff “must prove that [the
defendants] acted intentionally or recklessly, and not merely
negligently.’ ” Id. at 36.
In the present matter, the Court finds that Plaintiff has failed
to plausibly allege a claim of deliberate indifference under
the Fourteenth Amendment. Initially, the Court notes that the
“medical staff” at the Cayuga County Jail were not named
as defendants in this action. Rule 10(a) requires a plaintiff
to “name all the parties” in the Complaint. See Fed. R. Civ.
P. 10(a). Although the naming of pseudonymous defendants
is permissible where a plaintiff requires discovery to learn
the true identities of the defendants, the plaintiff subsequently
must amend the complaint to reflect the discovered identities
and effect service on the named parties within the 120-day
time period set forth in Rule 4(m). See Petty v. Cty. of
Franklin, 478 F.3d 341, 345–46 (6th Cir. 2007).
Here, Plaintiff has not brought suit against any pseudonymous
defendants, and only makes reference to these unidentified
individuals in the body of the complaint. If Plaintiff had
intended to sue then-unknown members of the medical staff
at the jail, he should have brought suit against “John and/
or Jane Doe” defendants, who could be identified through
discovery. Upon obtaining their identities, Plaintiff would
then be required to amend his complaint to reflect the Doe
defendants’ identities. See Simmons v. District of Columbia,
750 F. Supp. 2d 43, 45 (D.D.C. 2011) (holding that a
plaintiff “may bring an action against unknown John Doe
defendants, but plaintiff must substitute named defendants
for those unknown defendants after the completion of
discovery”) (citations omitted); see also Estate of Rosenberg
by Rosenberg v. Crandell, 56 F.3d 35, 37 (8th Cir. 1995)
(holding that “[a]n action may proceed against a party whose
name is unknown if the complaint makes allegations specific
enough to permit the identity of the party to be ascertained
after reasonable discovery”). Here, Plaintiff has not brought
suit against unknown members of the medical staff at the
Cayuga County Jail or providing any facts that would permit
Defendants to assist in obtaining their identities. As such, the
only potential deliberate indifference claim asserted in the
complaint is a municipal liability claim against Defendant
Cayuga County.
*13 In his complaint, Plaintiff has alleged that a water pipe
burst outside his cell during the night, the water was turned
off, and at some point during the night it pooled near his cell's
toilet. See Dkt. No. 5 at ¶¶ 109-13. At sometime between 6:30
a.m. and 7:00 a.m., Plaintiff claims that he got out of bed to
use the toilet in his cell and slipped and fell on the wet floor.
See id. at ¶ 110. Plaintiff alleges that, when he fell, he hit his
head and neck on his bunk and his lower back on the floor,
causing severe injuries, including a herniated disc in his neck
and lower lumbar strain. See id. at ¶¶ 111-13. Plaintiff claims
that, “[a]fter the injury up and until Plaintiff was released
on October 4, 2018[,] Plaintiff was denied medical treatment
for his injuries that he suffered inclusive of medication and
treatment from a physician.” Id. at ¶ 114.
Initially, the Court notes that nothing in the complaint
indicates that Plaintiff's alleged injury was caused by a
municipal custom, policy, or usage, as is required to find a
plausible claim against Defendant Cayuga County. Rather,
Plaintiff claims that a water pipe leaked outside his cell during
the night and that a “correctional officer ... turn[ed] off the
water and clean[ed] up the water spill. At that time, there was
no water in Plaintiff's cell.” Dkt. No. 5 at ¶ 108. When the
second pipe leaked, some water entered Plaintiff's cell, which
caused Plaintiff to fall. See id. at ¶ 109. This isolated incident,
involving a bursting water pipe, is woefully insufficient
to plausibly allege municipal liability for Plaintiff's alleged
injury. See Connick, 131 S. Ct. at 1360; see also Plair v. City
of New York, 789 F. Supp. 2d 459, 470 (S.D.N.Y. 2011) (“[I]t
is well established that a single incident does not give rise
to an unlawful practice by subordinate officials so permanent
and well-settled as to constitute custom or usage”) (internal
quotation marks omitted); Giaccio v. City of New York, 308
Fed. Appx. 470, 472 (2d Cir. 2009) (finding that allegations
of, at most, four prior incidents of misconduct “falls far short
of establishing a practice that is ‘so persistent or widespread’
as to justify the imposition of municipal liability”) (internal
quotation marks omitted).
Even assuming that Plaintiff had asserted this claim against
an individually named Defendant, the claim would still
be dismissed. To satisfy the second prong of a deliberate
indifference claim, Plaintiff must plausibly allege facts
suggesting that a defendant “acted intentionally to impose the
alleged condition, or recklessly failed to act with reasonable
care to mitigate the risk that the condition posed to the pretrial
detainee even though [they] knew, or should have known,
that the condition posed an excessive risk to health or safety.”
Darnell, 849 F.3d at 35. At best, the facts set forth in the
complaint describe negligence on the part of the correctional
staff, which is insufficient to support a claim of deliberate
indifference. See id. at 36.
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Finally, to the extent that Plaintiff is basing his claim on the
alleged deprivation of medical care after his accident, Plaintiff
has failed to provide any factual basis in support of his
conclusory assertion that he “was denied medical treatment
for his injuries that he suffered inclusive of medication and
treatment from a physician.” Dkt. No. 5 at ¶ 114. The
complaint fails to allege that he brought his alleged injuries to
the attention of the correctional or medical staff at the Cayuga
County jail (or even identify any such individual).
Based on the foregoing, the Court grants Defendants’ motion
to dismiss as to Plaintiff's deliberate indifference claim.
IV. CONCLUSION
After carefully the entire record in this matter, parties’
submissions and the applicable law, and for the reasons stated
herein, the Court hereby
*14 ORDERS that Defendants’ motion to dismiss (Dkt. No.
9) is GRANTED in part and DENIED in part; 4 and the
Court further
ORDERS that Defendants City of Auburn, Butler, Cayuga
County, Cayuga County District Attorney's Office, and
Budelmann are TERMINATED as Defendants in this action;
and the Court further
ORDERS that Defendants’ letter motion a portion of the
argument raised in their motion to dismiss (Dkt. No. 15) is
DENIED as moot; and the Court further
ORDERS that the Clerk of the Court shall serve a copy
of this Memorandum-Decision and Order on the parties in
accordance with the Local Rules.
IT IS SO ORDERED.
All Citations
Not Reported in Fed. Supp., 2020 WL 1904088
Footnotes
1 As discussed in more detail below, Plaintiff's complaint fails to set forth any facts sufficient to find either
supervisory or municipal liability against any of the named Defendants for any of the listed causes of action.
2 Although the Court is permitting this claim against Defendant Spinelli to survive, the Court has serious
doubts about whether the claim would survive a properly supported motion for summary judgment. If the
Court were to consider the contents of the criminal complaint, supporting affidavit, and Defendant Spinelli's
narrative, the claim would undoubtedly be dismissed. This, however, highlights why the Court believes that
it is inappropriate to rely on the contents of these documents at this stage. Without the benefit of discovery,
Plaintiff has been unable to question the veracity of the statements contained in those documents. That
being said, the criminal complaint and affidavits paint a much less sympathetic picture than the one set out
in Plaintiff's complaint.
3 Throughout his response, Plaintiff repeatedly states that “the Court is respectfully reminded that it may dismiss
a complaint only if it is clear that no relief could be granted under any set of facts that could be proved
consistent with the allegations.” See, e.g., Dkt. No. 10 at 17, 18 (citing Hishon v. King & Spalding, 467 U.S. 69,
73). Further, Plaintiff repeatedly contends that he “has no duty at this stage to prove his case.” Id. These basic
tenets are not in dispute. What Plaintiff fails to appreciate, however, is that a complaint must be supported
by facts specific to his case, not merely broad assertions of the relevant law poorly disguised as facts. For
example, Plaintiff alleges that Defendants engaged in “extreme and outrageous conduct,” but fails to explain
how any of the conduct alleged could possibly be considered extreme and outrageous. Further, Plaintiff
seems to be operating under the assumption that the Court is required to use its imagination to come up
with a hypothetical set of facts that could have been pled that would render the claims plausible. Iqbal and
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Twombly, however, place no such burden on the Court. Rather, it is incumbent on the plaintiff to set forth the
necessary facts specific to his or her case to render the asserted claims plausible.
4 As a result of this Memorandum-Decision and Order, the only remaining claim is Plaintiff's false arrest claim
against Defendant Spinelli.
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2012 WL 2569085
Only the Westlaw citation is currently available.
United States District Court,
S.D. New York.
Ronald MOYE, Plaintiff,
v.
The CITY OF NEW YORK; Sgt. Nelson Caban,
P.O. Paul Jeselon, P.O. Samuel Fontanez, P.O.
Edward Simonetti, P.O. Matthew Boorman, P.O.
Frank Papa, P.O. Tawaina O'Neal, P.O. Brennan;
P.O. John; and A.D.A. Dustin Chao, Defendants.
No. 11 Civ. 316(PGG).
|
July 3, 2012.
MEMORANDUM OPINION & ORDER
PAUL G. GARDEPHE, District Judge.
*1 Plaintiff Ronald Moye has brought claims against the
City of New York, former New York County Assistant
District Attorney Dustin Chao, and eight members of the New
York City Police Department (“NYPD”) under 42 U.S.C.
§ 1983 and state law. Moye claims that Chao is liable for
damages under Section 1983 and state law for malicious
prosecution, abuse of process, denial of a fair trial, fabrication
of evidence, conspiracy “to inflict an unconstitutional injury,”
and intentional and negligent infliction of emotional distress.
(Am. Cmplt., Second, Third, Fourth, Fifth, Sixth, Seventh,
and Ninth Claims) Chao has moved to dismiss the Amended
Complaint on grounds of absolute immunity. For the reasons
stated below, Chao's motion to dismiss will be granted.
BACKGROUND
For purposes of deciding Defendant Chao's motion to dismiss,
the Court has assumed that the following facts presented in
the Amended Complaint are true.
I. MOYE'S ARREST
On or about March 12, 2002, at approximately 8:00
p.m., NYPD officers Paul Jeselson and Tawaina O'Neal
were stationed on the rooftop of an apartment building
on the south side of West 118th Street near the corner
of Morningside Avenue conducting nighttime narcotics
surveillance. (Am.Cmplt.¶¶ 19, 22) Plaintiff's car was located
on the north side of West 118th Street, near Manhattan
Avenue. (Id. ¶ 21) Officer Jeselson claimed that he observed
Plaintiff “extend his hand from the driver's side window and
hand a small glassine” to another individual—later arrested
—who, in turn, handed it to an unapprehended customer. (Id.
¶ 20) The Defendant officers moved in and arrested Moye in
the vicinity of 352 West 118th Street. (Am.Cmplt.¶¶ 12, 25)
At the time of the arrest, and later at the 28th Precinct, the
officers searched Moye and his car and found United States
currency, both in Moye's possession and inside the vehicle.
(Id. ¶ 27) The Defendant officers unnecessarily grabbed
Moye, pushed him, and placed excessively tight handcuffs on
him (id. ¶ 30), causing him to suffer bruises to and numbness
in his wrists. (Id. ¶ 32)
Moye was indicted on March 22, 2002, for Criminal
Possession of a Controlled Substance in the Third Degree.
(Am. Cmplt. ¶ 35; Schwartz Decl., Ex. A) Plaintiff alleges that
the police officer defendants “conspired [to give] and gave
false testimony and intentionally placed false evidence before
the grand jury.” 1 (Am.Cmplt.¶ 35)
II. MOYE'S FIRST TRIAL
Moye's first trial began on January 14, 2003. (Schwartz Decl.,
Ex. B) A.D.A. Chao introduced photographs at trial which
he claimed showed the position of Plaintiff s car as it was
parked on West 118th Street. (Am.Cmplt.¶ 38) Chao, Officer
Jeselson, and Officer Papa were present when a District
Attorney's office photographer took these photos in June 2002
from the March 12, 2002 observation point. (Id. ¶¶ 41–42,
44) Although the photographs were intended to convey the
vantage point of the officers on the night of the arrest, they did
not replicate the “nighttime conditions.” (Id. ¶ 45) According
to Moye, these photographs nonetheless showed that the
officers could not have seen Plaintiff extend his hand from
the driver's side window and pass a small glassine to another
individual, because the driver's side could not be seen from
the vantage point of the rooftop observation post, even with
binoculars. (Id. ¶¶ 46, 48) At trial, Officer Jeselson admitted
that “he was not able to see the driver's side of the vehicles in
the photographs.” (Id. ¶ 47) Jeselson nonetheless claimed that
he had been able to see Moye's hand “during the nighttime
observation.” (Id. ¶ 39) The first trial ended in a mistrial, with
the jury unable to reach a verdict. (Id. ¶ 49)
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III. MOYE'S SECOND TRIAL
*2 In February 2003, A.D.A. Chao, Officers Brennan
and Jeselson, and D.A's Office photographer Nancy Badger
returned to West 118th Street to take more photographs. (Id.
¶ 53) They repositioned the car on an angle in order to make
it appear that the officers would have been able to see Moye's
hand outside the driver's side window on the night of his
arrest. (Id. ¶¶ 55–60) With the car positioned in this fashion,
Jeselson and Chao instructed Badger to take photographs of
Officer Brennan's hand outside the driver's side window in an
effort to simulate what the officers would have seen that night.
(Id. ¶¶ 60–61) Jeselson and Chao then had Brennan move the
car back to a curbside position “where additional photographs
[were] taken at a wide angle to falsely give the impression that
the close-ups were merely enlargements of the vehicle parked
along the curb.” (Id. ¶ 63)
At Moye's second trial, Chao introduced these new
photographs and elicited testimony from Jeselson in which
he used the photographs to support his claim that he was
able to see Moye's hand from the rooftop observation post.
(Id. ¶¶ 66, 74) However, Badger testified that, in taking
the new photographs, “the defendants moved the vehicle
to an angle where the hand could be visible.” Defendants
then returned the vehicle to its curbside position and took
additional photographs that “falsely give the impression that
the close-ups were merely enlargements of the vehicle parked
along the curb.” (Id. ¶¶ 81–84)
In summation, Moye's lawyer argued that Jeselson had lied
about his observations from the roof and the positioning of
the car in the photographs introduced by the prosecution.
(Id. ¶ 85) In response, A.D.A. Chao argued that Officer
Jeselson had no opportunity to frame the defendant, because
Chao had been present at the observation post:
“[Defense counsel] spoke about people on that roof.
It's in evidence. Officer Jeselson was on that roof, the
photographer Laura Badger was on the roof, and I was on
that roof. Now, if he is directing something improperly, that
is Officer Jeselson, well, it's in front of me.
“And if he knew he was going to get away with it when
I say that's the opportunity, you know [defense counsel]
talked about a lot of people losing their jobs about perjuring
themselves, about the integrity of Robert Morgenthau's
office. Well, if Officer Jeselson thought he was going to get
away with it—
“[DEFENSE counsel]: Mr. Chao is vouching for his
witness.
“THE COURT: Overruled.
“[ADA] CHAO: If Officer Jeselson thought he was going
to get away with it with me present, all that talk about firing,
that should be me because I'm prosecuting this case, not
Officer Jeselson.
“[DEFENSE counsel]: That's objectionable vouching for
his witness.
“THE COURT: Overruled.
“[DEFENSE counsel]: Your Honor, he is making himself
an unsworn witness for the credibility of his police officer.
*3 “THE COURT: Overruled.
“[ADA] CHAO: Ladies and gentlemen, Mr. Morgenthau
should fire me if Officer Jeselson thinks he is going to be
able to say that in court, lie to you, when the person who
is standing right next to him on that roof is me. Well, that
lies with me.
“So what's the explanation? If there's no motive, no
opportunity for why Ms. Badger remembers it differently.
Well, there's evidence that you heard the officer was on the
roof. Evidence that you heard I was on the roof also. I have
no other answer other than the fact that she is mistaken....
“[DEFENSE counsel]: He is vouching for his witness using
the pronoun I.
“THE COURT: Members of the jury, you can accept his
argument as to what happened on the roof. It's his argument
based upon the evidence as he recalls it.”
People v. Move, 52 A.D.3d 1, 5 (1st Dep't 2008); see also
(Am. Cmplt. ¶¶ 87–92.
Moye was convicted at his second trial and sentenced to four-
and-a-half to nine years' imprisonment. (Am.Cmplt.¶¶ 13–14)
IV. THE CHARGES AGAINST MOYE ARE DISMISSED
On appeal, the First Department vacated the conviction in
a 3–2 decision. People v. Move, 52 A.D.3d 1. The First
Department found that “the prosecutor improperly vouched
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for his witness and interjected his personal integrity and the
veracity of the District Attorney's office into his summation to
support the credibility of Police Office Jeselson.” Id. at 6. The
New York Court of Appeals agreed that Chao had engaged in
impermissible vouching for his witness, affirmed the reversal
of the conviction, and remanded the case to Supreme Court.
People v. Move, 12 N.Y.3d 743, 744 (2009). After remand,
the New York County District Attorney's Office dismissed the
case on October 21, 2009. (Am.Cmplt.¶¶ 16, 37)
DISCUSSION
I. IMMUNITY
Chao argues that the claims against him must be dismissed
because his actions are protected by absolute immunity. 2
Section 1983 “purports to create a damages remedy against
every state official for the violation of any person's federal
constitutional or statutory rights.” Kalina v. Fletcher, 522
U .S. 118, 123 (1997). In order to state a claim under Section
1983, a plaintiff must show that the conduct complained
of was committed by a person or entity acting under color
of state law, and that the conduct deprived a person of
rights, privileges, or immunities secured by the Constitution.
Newton v. City of New York, 566 F.Supp.2d 256, 269–70
(S.D.N.Y.2008) (citing Palmieri v. Lynch, 392 F.3d 73, 78 (2d
Cir.2004)).
“Although section 1983 imposes liability upon every person
who deprives another of a constitutional right under color of
state law, the doctrines of absolute and qualified immunity
shield prosecutors and law enforcement officers from liability
related to their official acts.” Day v. Morgenthau, 909 F.2d
75, 77 (2d Cir.1990). While Section 1983 does not explicitly
provide for such immunity, the Supreme Court and Second
Circuit have ruled that “Congress did not intend § 1983 to
abrogate immunities ‘well grounded in history and reason.’ “
Pinaud v. Cnty. of Suffolk, 52 F.3d 1139, 1147 (2d Cir.1995)
(quoting Buckley v. Fitzsimmons, 509 U.S. 259, 268 (1993)).
*4 As the Second Circuit has explained:
Such immunities are of two types: absolute and qualified.
Buckley v. Fitzsimmons, 509 U.S. 259, 268, 113 S.Ct.
2606, 125 L.Ed.2d 209 (1993). Absolute immunity is
reserved for officials who perform “special functions” and
deserve absolute protection from damages liability. Among
these are prosecutors, and persons working under their
direction, when they function as advocates for the state
in circumstances “intimately associated with the judicial
phase of the criminal process.” Imbler v. Pachtman, 424
U.S. at 430–31. See also Hill v. City of New York, 45 F.3d at
660 (extending absolute prosecutorial immunity to persons
acting under the direction of prosecutors in performing
functions closely tied to the judicial process).
By contrast, only qualified immunity applies to law
enforcement officials, including prosecutors, when they
perform investigative functions. Buckley v. Fitzsimmons,
509 U.S. at 273. (“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.”) (internal quotation marks and citations
omitted); accord Zahrey v. Coffey, 221 F.3d 342, 349 (2d
Cir.2000).
Bernard v. Cnty. of Suffolk, 356 F.3d 495, 502–03 (2d
Cir.2004).
Absolute immunity extends only so far as necessary to protect
the judicial process. Hill v. City of New York, 45 F.3d 653, 660
(2d Cir.1995). Nonetheless,
[t]he doctrine of absolute prosecutorial immunity creates
a formidable obstacle for a plaintiff seeking to maintain a
civil rights action against a district attorney, as it provides
that “prosecutors are absolutely immune from liability
under § 1983 for their conduct in ‘initiating a prosecution
and in presenting the State's case,’ insofar as that conduct
is ‘intimately associated with the judicial phase of the
criminal process.’ “ Burns v. Reed, 500 U.S. 478, 486, 111
S.Ct. 1934, 1939, 114 L.Ed.2d 547 (1991) (quoting Imbler,
424 U.S. at 430–31, 96 S.Ct. at 995).
Pinaud, 52 F.3d at 1147. The Court addresses the parameters
of absolute prosecutorial immunity below.
A. Legal Standard for Absolute Prosecutorial Immunity
A prosecutor who, as here, is sued in his or her individual
capacity, may assert absolute or qualified immunity as
a defense. Courts may grant a Rule 12(b)(6) motion to
dismiss on grounds of absolute immunity where the facts
establishing the defense appear in the complaint. Deronette
v. City of New York, No. 05 CV 5275(SJ), 2007 WL 951925,
at *4 (E.D.N.Y. Mar. 27, 2007) (citing Hill, 45 F.3d at
663) (absolute immunity may be decided on a Rule 12(b)
(6) motion where facts establishing the defense may be
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“gleaned from the complaint”)). Moreover, district courts
are encouraged to determine the applicability of an absolute
immunity defense at the earliest appropriate stage, and
preferably before discovery. 3 Id. (citing Mitchell v. Forsyth,
472 U.S. 511, 526 (1985)); United States v. Colbert, No. 87
Civ. 4789, 1991 WL 183376 at *4 (S.D.N.Y. Sept. 11, 1991).
This approach is appropriate given that “absolute immunity
defeats a suit at the outset, so long as the official's actions
were within the scope of the immunity.” Imbler, 424 U.S. at
419 n. 13. “[T]he official seeking absolute immunity bears
the burden of showing that such immunity is justified for the
function in question.” Buckley, 509 U.S. at 270 (1993) (citing
Burns, 500 U.S. at 486).
*5 Prosecutorial immunity to Section 1983 claims is
grounded in the immunity to tort liability that prosecutors
enjoy under the common law. Flagler v. Trainor, 663 F.3d
543, 546 (2d Cir.2011) That immunity arises from the
“concern that harassment by unfounded litigation would
cause a deflection of the prosecutor's energies from his public
duties, and the possibility that he would shade his decisions
instead of exercising the independence of judgment required
by his public trust.” Id. (citing Imbler, 424 U.S. at 423).
Immunity protects the proper functioning of the prosecutor's
office by insulating the exercise of prosecutorial discretion.
Kalina, 522 U.S. at 125. Prosecutors are therefore “absolutely
immune from suit only when acting as advocates and when
their conduct involves the exercise of discretion.” Flagler,
663 F.3d at 546 (citing Kalina, 522 U.S. at 127).
The Supreme Court addressed the question of absolute
immunity for prosecutors in Imbler, where it held that
prosecutors are entitled to absolute immunity for damage suits
under Section 1983 for all acts “intimately associated with the
judicial phase of the criminal process,” including “initiating
a prosecution and ... presenting the State's case [at trial].”
Imbler, 424 U.S. at 430.
Later, in Buckley, 509 U.S. at 273, the Supreme Court
considered whether the prosecutor defendants were entitled to
absolute immunity for “investigative” work they performed
well before seeking an indictment, involving an effort to
connect the plaintiff to a bootprint left at a murder scene.
Although the Court rejected the prosecutors' claim for
absolute immunity, the Court cautioned that it had
not retreated ... from the principle
that acts undertaken by a prosecutor
preparing for the initiation of judicial
proceedings or for trial, and which
occur in the course of his role
as an advocate for the State, are
entitled to the protections of absolute
immunity. Those acts must include
the professional evaluation of the
evidence assembled by the police
and appropriate preparation for its
presentation at trial or before a grand
jury after a decision to seek an
indictment has been made.
Buckley, 509 U.S. at 273 (internal citations and quotations
omitted).
Whether a prosecutor has absolute immunity for a particular
act thus “depends principally on the nature of the function
performed, not on the office itself.” Ying Jing Gan v. City of
New York, 996 F.2d 522, 530 (2d Cir.1993). “Such functions
include the decision to bring charges against a defendant,
presenting evidence to a grand jury, and the evaluation of
evidence prior to trial.” Johnson v. City of New York, No. 00
CIV 3626(SHS), 2000 WL 1335865, at *2 (S.D.N.Y. Sept.
15, 2000) (citing Kalina, 522 U.S. at 126). Furthermore,
this “application of immunity is not limited to the duties a
prosecutor performs in the courtroom.” Dory v. Ryan, 25 F.3d
81, 83 (2d Cir.1994) (citing Buckley, 509 U.S. at 272).
*6 “[A] district attorney is [not only] absolutely immune
from civil liability for initiating a prosecution and presenting
the case at trial,” but also “immune for conduct in preparing
for those functions; for example, evaluating and organizing
evidence for presentation at trial or to a grand jury, or
determining which offenses are to be charged.” Hill, 45
F.3d at 661 (citations omitted). Prosecutorial immunity from
Section 1983 damages liability is broadly defined, covering
“virtually all acts, regardless of motivation, associated with
[the prosecutor's] function as an advocate.” Dory, 25 F.3d at
83. The Second Circuit has been “mindful of the Supreme
Court's admonition that ‘the duties of the prosecutor in his
role as advocate for the State involve actions preliminary
to the initiation of a prosecution and actions apart from
the courtroom.... Preparation, both for the initiation of the
criminal process and for a trial, may require the obtaining,
reviewing, and evaluating of evidence.’ “ Barbera v. Smith,
836 F.2d 96, 100 (2d Cir.1987) (quoting Imbler, 424 U.S.
at 431 n. 33); see also Barrett v. United States, 798 F.2d
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565, 571 (2d Cir.1986) (“The absolute immunity accorded
to government prosecutors encompasses not only their
conduct of trials but all of their activities that can fairly
be characterized as closely associated with the conduct of
litigation or potential litigation....”)
Because absolute immunity extends broadly to all acts
committed by a prosecutor in his or her role as an advocate, it
protects prosecutors against claims that they conspired to, or
actually presented, fabricated evidence at trial:
absolute immunity protects a prosecutor from § 1983
liability for virtually all acts, regardless of motivation,
associated with his function as an advocate. This would
even include ... allegedly conspiring to present false
evidence at a criminal trial. The fact that such a conspiracy
is certainly not something that is properly within the role
of a prosecutor is immaterial, because “[t]he immunity
attaches to his function, not to the manner in which he
performed it.” Barrett v. United States, 798 F.2d 565, 573
(2d Cir.1986); see also Daloia v. Rose, 849 F.2d 74, 75
(2d Cir.1988) (per curiam ) (holding ... that prosecutor was
immune from § 1983 liability for knowingly presenting
false testimony). As much as the idea of a prosecutor
conspiring to falsify evidence [is disturbing] ... there is
a greater societal goal in protecting the judicial process
by preventing perpetual suits against prosecutors for the
performance of their duties. See Imbler, 424 U.S. at 426–
428.
Dory, 25 F.3d at 83. 4
Although courts have declined to establish a bright-line
test based on the stage of a criminal proceeding, “absolute
prosecutorial immunity has generally been found in cases
where some type of formal proceeding had been commenced
or was being commenced by the conduct at issue.” Tabor v.
New York City, No. 11 CV 0195 FB, 2012 WL 603561, at
*4 (E.D.N.Y.2012) (citing Barbera v. Smith, 836 F.2d at 99.
In contrast, where formal proceedings have not begun and
the prosecutor is acting in an investigative capacity—such
as by providing the police with legal advice on investigative
techniques—qualified immunity generally applies. Id. While
the Supreme Court has noted that a prosecutor is not
absolutely immune for every action taken after probable
cause has been established, see Buckley, 509 U.S. at 274
n. 5, “the Court's treatment of the issue demonstrates that
the existence of probable cause with respect to a particular
suspect is a significant factor to be used in evaluating the
advocatory nature of prosecutorial conduct.” Cousin v. Small.
325 F.3d 627, 633 (5th Cir.2003); accord Barbera, 836 F.2d
at 99 (noting “that in each of the cases we have reviewed
where absolute immunity was upheld, some type of formal
proceeding had been commenced or was being commenced
by the challenged acts”); see also DiBlasio v. Novello, 344
F.3d 292, 300–01 (2d Cir.2003) ( “In assessing whether
absolute immunity should attach to a prosecutor ... we have
focused on the timing of the conduct at issue....”) Thus, in
interpreting Buckley, the Second Circuit has distinguished
between “preparing for the presentation of an existing case,”
on the one hand, and attempting to “furnish evidence on which
a prosecution could be based,” on the other hand, with only
the former entitling a prosecutor to absolute immunity. Smith
v. Garretto, 147 F.3d 91, 94 (2d Cir.1998).
*7 In assessing a prosecutor's claim of absolute immunity,
the court employs a “functional approach,” see, e.g., Burns,
500 U.S. at 486, which looks to “the nature of the function
performed, not the identity of the actor who performed it.”
Forrester v. White, 484 U.S. 219, 229 (1988); see also Van de
Kamp v. Goldstein, 555 U.S. 335, 335–336 (2009) (“To decide
whether absolute immunity attaches to a particular kind of
prosecutorial activity, one must take account of ... ‘functional’
considerations”). The court must inquire whether the actions
in question are part of a prosecutor's traditional function
and whether they are closely associated with the judicial
process. Blouin v. Spitzer, 356 F.3d 348, 357 (2d Cir.2004) (a
court must examine the “nature of the function performed”
in assessing whether absolute immunity will attach.); Doe v.
Phillips, 81 F.3d 1204, 1209 (2d Cir.1996).
B. Analysis
1. Malicious Prosecution, Abuse of Process
To the extent that the Amended Complaint seeks to hold
Chao liable for initiating the prosecution of Moye, absolute
immunity is clearly applicable. Shmueli v. City of New
York, 424 F.3d 231, 237 (2d Cir.2005) (“[T]he prosecutor
is shielded from liability for damages for commencing and
pursuing the prosecution, regardless of any allegations that
his actions were undertaken with an improper state of mind or
improper motive.”); see also Hill, 45 F.3d at 660–61 (holding
that prosecutors and those working under their direction are
absolutely immune for claims relating to the initiation of a
prosecution and for conduct before a grand jury). Plaintiff s
federal and state law claims alleging malicious prosecution
and abuse of process will therefore be dismissed. 5
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2. Creation of Misleading Photographs, Conspiracy to
Present False Evidence at Trial
Moye alleges that Chao, in preparation for Moye's second
trial, returned to West 118th Street and instructed Nancy
Badger—the District Attorney's office photographer—to take
photographs that inaccurately represented the position of
Moye's car on the night of his arrest. Chao then presented
these photographs at the second trial. (Am.Cmplt.¶¶ 38, 40,
50, 50–54, 66–67) Moye alleges that these photographs gave
the false impression that the police in the observation post
would have been able to see Moye's hand outside the driver's
side window. (Id. ¶ 60) Moye further argues that absolute
immunity does not extend to Chao's role in obtaining these
allegedly misleading photographs, because obtaining such
evidence is “not a traditional prosecutorial function” and was
“done for the purpose of misleading the second jury.” (Pltf.
Opp. Br. at 10–11)
Prosecutors' absolute immunity applies “not just for
presentation of testimony,” however, but also to preparatory
conduct “relating to their advocacy.” Dory, 24 F.3d at 83.
The Supreme Court and the Second Circuit have emphasized
that ‘ “the duties of the prosecutor in his role as advocate
for the State involve actions preliminary to the initiation
of a prosecution and actions apart from the courtroom....
Preparation, both for the initiation of the criminal process
and for a trial, may require the obtaining, reviewing, and
evaluating of evidence.’ “ Barbera, 836 F.2d at 100 (quoting
Imbler, 424 U.S. at 431 n. 33); see also Barrett, 798 F.2d
at 571 (“The absolute immunity accorded to government
prosecutors encompasses not only their conduct of trials
but all of their activities that can fairly be characterized as
closely associated with the conduct of litigation or potential
litigation....”).
*8 Chao obtained the photographs at issue after Moye's first
trial and in preparation for Moye's second trial. Accordingly,
his involvement in obtaining these photographs took place
long after formal criminal proceedings had been commenced.
See Deskovic v. City of Peekskill, Nos. 07–CV–8150 (KMK),
07–CV–9488 (KMK), 2009 WL 2475001, at *10 (S.D.N.Y.
Aug. 13, 2009) (“[i]n assessing how closely connected a
prosecutor's conduct is to the judicial phase of the criminal
process, the timing of the conduct is relevant”) (citing
DiBlasio, 344 F.3d at 300–01).
Furthermore, in directing that these new photographs be
taken, Chao was performing in his role as a prosecutor
preparing for trial: he sought to obtain these visual depictions
of the crime scene in order to strengthen his case. (Am. Cmplt.
¶ 64 (purpose of second set of photographs was “to show
that P.O. Jeselson could see a hand coming out of the car
window on the date of plaintiff s arrest”)). Although Chao
was working with the police, he was acting within his role
“as [an] advocate for the State.” Burns, 500 U.S at 491.
Courts have consistently found absolute immunity applicable
where, as here, a Section 1983 plaintiff is relying on post-
indictment misconduct by a prosecutor aimed at obtaining
additional evidence to support pending charges at trial. See,
e.g., Deskovic, 2009 WL 2475001, at *5, *11, *13 (plaintiff
contended that A.D.A. had, post-indictment, conspired to
procure false scientific evidence that he later introduced at
trial; granting A.D.A.'s motion to dismiss Section 1983 claims
on absolute immunity grounds, because the A.D.A.'s alleged
misconduct took place after indictment during the “judicial
phase of the criminal process”); Bertuglia v. City of New York,
No. 11 Civ. 2141(JGK), 2012 WL 906958, at *21 (S.D.N.Y.
Mar. 19, 2012) (granting motion to dismiss state law claims
against A.D.A. defendant based on post-indictment evidence-
gathering activities; absolute immunity applicable because
“the Complaint does not allege facts that create a plausible
inference that [the prosecutor] was not acting as an advocate
seeking to strengthen her case against an indicted defendant”);
Zahrey v. City of New York, No. 98–4546, 2009 WL 54495, at
*30–*31 (S.D.N.Y. Jan. 7, 2009) (granting absolute immunity
to A.D.A. alleged to have engaged in post-indictment effort
to fabricate evidence); KRL v. Moore, 384 F.3d 1105 (9th
Cir.2004) (granting A.D.A. absolute immunity for alleged
misconduct related to his role in obtaining a post-indictment
search warrant seeking evidence to corroborate pending
charges); Cousin v. Small, 325 F.3d 627, 635 (5th Cir.2003)
(granting absolute immunity to A.D.A. accused of fabricating
evidence post-indictment; “at the time of [A.D.A.] Jordan's ...
conversations with Rowell, in which Jordan allegedly told
Rowell to implicate Cousin falsely in the murder and coached
him on how to testify, Jordan was acting as an advocate rather
than as an investigator. The interview was intended to secure
evidence that would be used in the presentation of the state's
case at the pending trial of an already identified suspect,
not to identify a suspect or establish probable cause. Jordan
therefore is entitled to absolute immunity with respect to this
claim.”); see also Peay v. Ajello, 470 F.3d 65, 68 (2d Cir.2006)
(affirming dismissal on absolute immunity grounds of Section
1983 claim brought against Assistant State's Attorney based
on alleged conspiracy to present false evidence at trial); Dory,
25 F.3d at 83 (“absolute immunity protects a prosecutor from
§ 1983 liability for ... allegedly conspiring to present false
evidence at a criminal trial”).
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*9 Because Chao is alleged to have obtained the misleading
photographs post-indictment, in preparation for Moye's
second trial, and in an effort to strengthen his case as the
State's advocate, he is entitled to absolute immunity for this
alleged misconduct.
3. Misconduct at Trial
Moye alleges that Chao elicited false testimony from Officer
Jeselson at trial, that he buttressed Jeselson's false testimony
through introduction of the misleading photographs, and that
he then vouched for the truth of Jeselson's testimony in his
summation.
A prosecutor's presentation of false evidence, or subornation
of perjury at trial, is protected by absolute immunity. Jones
v. King, No. 10 Civ. 0897(PKC), 2011 WL 4484360, at *4
(S.D.N.Y. Sept. 28, 2011) (“The claim that [the prosecutor]
‘conspir[ed] to present false evidence at a criminal trial’ is
barred.... The prosecutor enjoys absolute immunity ‘despite
allegations of his “knowing use of perjured testimony....’ “
”) (citations omitted); Bertuglia, 2012 WL 906958, at *23
(prosecutors are entitled to absolute immunity for allegations
that they “coerced and harassed various witnesses into giving
false testimony”); Urrego v. United States, No. 00 CV
1203(CBA), 2005 WL 1263291, at *2 (E.D.N.Y.2005) (“It
is settled law that when a prosecutor presents evidence to
a grand jury and at trial he is acting as an advocate and
entitled to absolute immunity on claims that the evidence
presented was false.”); Johnson v. Scott, No. CV–91–
1467(CPS), 1993 WL 36131, at *2 (E.D.N.Y. Feb. 5, 1993)
(A.D.A. entitled to absolute immunity related to witness
perjury, because this “concern[ed] ... the presentation of the
State's case against the plaintiff); see Imbler, 424 U.S. at
430–31 (granting prosecutors absolute immunity for their
conduct “in presenting the State's case,” including permitting
a fingerprint expert to give false testimony, suppressing
important evidence, and introducing a misleading artist's
sketch into evidence.).
The analysis does not change because Plaintiff alleges a
conspiracy to commit these acts. Shmueli, 424 F.3d at 237–
38 (“principles [of absolute immunity] are not affected
by allegations that improperly motivated prosecutions were
commenced or continued pursuant to a conspiracy”) (citing
Dory, 25 F.3d at 83); Bernard. 356 F.3d at 503; Hill, 45 F.3d
at 659 n. 2 (when the underlying activity at issue is covered
by absolute immunity, the “plaintiff derives no benefit from
alleging a conspiracy”).
Plaintiff also argues that Chao acted outside his prosecutorial
role when he vouched for Jeselson's testimony during
summation. Because a prosecutor's summation is part of
presenting the State's case, courts agree that a prosecutor's
conduct during summation is protected by absolute immunity.
See Robinson v. Rome, No. 11–CV–1411(NGG)(LB), 2011
WL 1541044, at *3 (E.D.N.Y.2011) (finding A.D.A.s immune
from suit for claims related to, inter alia, an improper
summation); Johnson, 1993 WL 36131, at *2 (granting
absolute immunity to prosecutor where plaintiff alleged that
A.D.A. “express [ed] to the jury her opinion as to the truth of
the testimony of her witnesses during her summation”).
*10 In sum, to the extent that Moye's claims against Chao
are based on his conduct at trial, those claims are covered by
absolute immunity.
* * * *
The Court concludes that Chao has absolute immunity for
all of Moye's claims, whether based on federal or state law,
and whether founded on theories of malicious prosecution,
abuse of process, denial of a fair trial, fabricated evidence,
conspiracy, or intentional or negligent infliction of emotional
distress.
CONCLUSION
Chao's motion to dismiss is GRANTED. The Clerk of the
Court is directed to terminate the motion (Dkt. No. 23).
SO ORDERED.
All Citations
Not Reported in F.Supp.2d, 2012 WL 2569085
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Footnotes
1 The Amended Complaint does not disclose what false testimony or other false evidence was laid before the
grand jury. Moreover, there is no suggestion that Chao was involved in presenting false testimony or false
evidence to the grand jury.
2 Because Moye sues Defendant Chao in his individual capacity (Am .Cmplt.¶ 9), his claims are not barred
by the Eleventh Amendment. See Ying Jing Gan v. City of New York, 996 F.2d 522, 529 (2d Cir.1993) (“To
the extent that ... a [Section 1983] claim is asserted against a [state official] in his individual capacity, he
may assert privileges of absolute or qualified immunity but may not assert immunity under the Eleventh
Amendment.”).
3 District courts likewise evaluate the applicability of absolute immunity before assessing whether a plaintiff has
sufficiently alleged a constitutional violation. Pinaud, 52 F.3d at 1148 n. 4 (citing Buckley, 509 U.S. at 261).
4 By contrast, discretionary prosecutorial actions that are not “intimately associated with the judicial phase of
the criminal process” are entitled only to qualified immunity. See Buckley, 509 U.S. at 270–75; Burns, 500
U.S. at 491–95. A prosecutor is “absolutely immune from liability under section 1983 [only] for acts ‘within
the scope of [their] duties in initiating and pursuing a criminal prosecution.’ “ Day, 909 F.2d at 77 (quoting
Imbler, 424 U.S. at 410). Thus, when a prosecutor acts in an investigative or administrative capacity, absolute
immunity is not available. Hill, 45 F.3d at 661. For example, immunity is not available when a prosecutor
releases information or evidence to the media, Buckley, 509 U.S. at 276–78; authorizes or directs the use
of wiretaps, Powers v. Coe, 728 F.2d 97, 103 (2d Cir.1984); or performs the functions normally performed
by the police, such as assisting in the execution of a search or seizure. See Buckley, 509 U.S. at 273. The
Supreme Court has also withheld absolute immunity for conduct unrelated to advocacy, such as giving legal
advice, Burns, 500 U.S. at 492–96, or acting as a complaining witness. Kalina, 522 U.S. 118, 129–31; see
also Ying Jing Gan, 996 F.2d at 533 (finding that prosecutor was not entitled to absolute immunity where he
allegedly exposed a witness to retaliation and failed to provide adequate protection for the witness).
5 Absolute immunity is a defense not only to Section 1983 claims but to related state law claims. See Shmueli,
424 F.3d at 238 (dismissing Section 1983 and related state law malicious prosecution claims); Arum v. Miller,
331 F.Supp.2d 99, 112 (E.D.N.Y.2004) (dismissing abuse of process and civil conspiracy claims on grounds
of absolute prosecutorial immunity); Imbler, 424 U.S. at 424 (same principles require conferral of absolute
immunity for damage claims against prosecutors under Section 1983 and state law).
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Rich v. New York, Not Reported in Fed. Supp. (2022)
© 2025 Thomson Reuters. No claim to original U.S. Government Works. 1
2022 WL 992885
Only the Westlaw citation is currently available.
United States District Court, S.D. New York.
Benjamin Samuel RICH, formerly
known as Samuel Guillaume, Plaintiff,
v.
State of NEW YORK, New York City; New
York City Police Department; New York County;
New York County District Attorney's Office;
Detective Michael Miller, Vincent Corrando, John
Passementi, Cyrus Vance, Jr., Shipla Kalra, David
Nasar, and Does 1–100, Inclusive., Defendants.
21 Civ. 3835 (AT)
|
Signed 03/31/2022
Attorneys and Law Firms
Benjamin Samuel Rich, Staten Island, NY, Pro Se.
Gee Won Cha, Julinda A. Dawkins, New York State Office
of the Attorney General, New York, NY, for Defendant State
of New York.
Andrew B. Spears, New York City Law Department, New
York, NY, for Defendants City New York, Michael Miller,
Vincent Corrando, John Passementi.
Patricia Jean Bailey, New York County District Attorney's
Office, New York, NY, for Defendants Cyrus Vance, Jr.,
David Nasar.
ORDER
ANALISA TORRES, District Judge:
*1 This action arises from a 2016 arrest and prosecution
of Plaintiff pro se, Benjamin Samuel Rich, in New York
County. He brings claims against the State of New York (the
“State”); former New York County District Attorney (“DA”)
Cyrus R. Vance, Jr. and two Assistant District Attorneys
(“ADAs”), Shilpa Kalra and David Nasar, (collectively, the
“DA Defendants”); and the City of New York (the “City”),
the New York City Police Department (the “NYPD”), and
NYPD officers Michael Miller, Vincent Corrando, and John
Passementi (collectively, the “City Defendants”), pursuant to,
inter alia, 42 U.S.C. §§ 1983, 1985, and 1986, the New York
State Constitution, and New York common law. See generally
Compl., ECF No. 1. Before the Court are three motions to
dismiss Plaintiff's complaint pursuant to Rules 12(b)(1) and
12(b)(6) of the Federal Rules of Civil Procedure, brought by
the State, ECF No. 20, the DA Defendants, ECF No. 22, and
the City Defendants, ECF No. 32.
For the reasons stated below, the State's motion to
dismiss is GRANTED, and Plaintiff's claims against the
State are DISMISSED. The DA Defendants’ motion to
dismiss is GRANTED—Plaintiff's claims against Vance
are DISMISSED; and his claims against Kalra and Nasar
are DISMISSED except for Counts 3 and 4, which are
DISMISSED without prejudice to renewal in an amended
complaint. The City Defendants’ motion to dismiss is
DENIED as to Count 4, and GRANTED in all other respects.
Plaintiff's claims against Passamenti, the NYPD, and the City
are DISMISSED; and his claims against Miller and Corrando
are DISMISSED, except for Count 3, which is DISMISSED
without prejudice to renewal in an amended complaint.
BACKGROUND 1
On January 6, 2016, Plaintiff was at the Highline Ballroom
(“the Highline”), a nightclub in Manhattan, as an invited
guest of Wasief Quahtan, a Highline employee. Compl. ¶ 24.
Quahtan and the club owner began arguing over “Quahtan[’s]
[having brought] Plaintiff to the party.” Id. ¶ 25. Security
staff, and an individual named Avery Jackson, asked Plaintiff
to leave. Id. ¶ 26. Plaintiff alleges that he was “forcibly
escorted” from the club, and that Jackson became “belligerent
and aggressive” towards him. Id. ¶ 27. Shortly thereafter, a
shooting occurred outside the Highline. Id. ¶ 28.
Plaintiff believes that Jackson “ran down the street and
jumped into a black sedan ... at the time the shots were fired.”
Id. ¶ 37. He also states that there were “numerous witnesses”
to the shooting, including a “female 911 caller,” who lived
“next door” to the Highline. Id. ¶ 36. In that 911 call, the
witness said that she had seen a “man jump into a black sedan
speeding down the street” after shots were fired. Id. Based
on this call, Plaintiff believes “it was more likely that it was
[ ] Jackson who fired the shots before jumping into the black
sedan to chase Plaintiff down.” Id. ¶ 37.
*2 The shooting was investigated by Detective Michael
Miller, who interviewed Jackson. Id. ¶¶ 29–30. Jackson told
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Miller that he saw Plaintiff go to a car, “pull out a gun, and
shoot in the direction of the Highline,” and that Jackson “ran
back into the club” when shots were fired. Id. ¶¶ 30, 37.
But, Plaintiff alleges that many of Jackson's representations
to Miller contradicted his initial statements to the NYPD
officers who first responded to the shooting, as well as
other eyewitness accounts. See, e.g., ¶¶ 30–32. For instance,
Plaintiff alleges that Jackson told the responding officers
that Plaintiff was “escorted from the club because he was
intoxicated,” and that Plaintiff then “went to his car, [a Rolls
Royce] removed a firearm ... and fired several shots.” Id. ¶¶
31, 46. But, Jackson told Miller that Plaintiff was “forcibly
ejected from the club” after an altercation with its manager,
that Plaintiff was “belligerent,” and threatened that he had a
gun. Id. ¶ 32. Plaintiff also contends that Jackson's statements
were demonstrably false, because surveillance videos showed
that Jackson “was the aggressor towards Plaintiff,” and that
Plaintiff was “calm, peaceful, and cooperative” when escorted
from the club. Id. ¶¶ 32, 41.
Plaintiff alleges that Miller failed to conduct a thorough
and complete investigation of the shooting, because he did
not interview several witnesses, including the 911 caller. Id.
¶¶ 36–37, 39. Plaintiff also suggests that Miller obtained—
but disregarded—surveillance video from the inside and the
outside of the club that would have corroborated Plaintiff's
version of events. See id. ¶¶ 40–43. Plaintiff also complains
that Officer Vincent Corrando, Miller's supervisor, “approved
all [of the] reports written” in the investigation and “should
have notice[d] or known of all the inconsistencies and
contradictory statements” in Miller's reports. Id. ¶ 95. And,
Plaintiff alleges that Officer John Passementi “authorized
DNA tests,” which revealed that the DNA evidence recovered
at the scene “did not match Plaintiff.” Id. ¶ 96.
On January 9, 2016, Miller obtained a search warrant for
Plaintiff's car, based on what Plaintiff contends were “false,
misleading and/or embellished information” in the underlying
affidavits. Id. ¶ 46. The next day, Jackson picked Plaintiff's
mugshot out of a photo lineup. Id. ¶ 92. Plaintiff appears
to argue that this lineup was unduly suggestive, because
his “mugshot had a lighter background than the other
photographs.” Id. ¶ 92. The same day, Miller obtained a
warrant for Plaintiff's arrest for attempted murder, assault,
and weapons possession, and in February obtained additional
search warrants for Plaintiff's cell phone and laptop, allegedly
based, again, on false and misleading statements provided by
Miller and Jackson. Id. ¶¶ 45, 47. According to Plaintiff, no
“physical evidence [ ] tie[d] him to any part of the shooting,”
id. ¶ 81, and the police did not recover a gun or find gunshot
residue in Plaintiff's car, id. ¶ 91.
On January 22, 2016, a grand jury indicted Plaintiff for
second-degree attempted murder, first-degree assault, and
two counts of criminal possession of a weapon. See id. ¶¶
45, 51. On January 27, 2016, Plaintiff was arrested. Id. ¶ 51.
He was incarcerated until February 18, 2016, when he was
released on bail. Id. ¶ 52.
In November 2016, Plaintiff was taken back into custody on
suspicion of witness tampering, after Jackson allegedly made
a “false[ ]” report to the DA's Office that Plaintiff had tried to
contact him. Id. ¶¶ 53, 103. Plaintiff remained in jail until his
trial, which began in June 2017. Id. ¶¶ 54, 64; see also Trial
Tr. at 1, ECF No. 22-3. 2
On March 26, 2016, ADAs Shilpa Kalra and David Nasar
provided surveillance videos from the Highline to Plaintiff's
counsel. Compl. ¶ 64. Plaintiff alleges, however, that the
relevant video showed only “one (1) camera angle [out]
of 14 camera angles.” Id. He alleges that prosecutors did
not provide videos from the thirteen additional camera
angles until a week after trial commenced, even though
these videos were collected from the Highline eighteen
months earlier. Compl. ¶ 64. The trial court accordingly
granted counsel's request to review the additional videos
before conducting Jackson's cross-examination. Trial Tr. at
3. On direct examination, Jackson testified that he did not
participate in escorting Plaintiff out of the club. Id. at 47–48.
*3 On June 12, 2017, prior to Jackson's cross-examination,
Plaintiff's counsel reported to the trial court that Jackson could
be identified in the additional videos based on his clothing. Id.
at 135. Nasar acknowledged that if Jackson was indeed visible
in the videos, he was “doing a bunch of things contrary to
what he testified about.” Id.; see also id. at 136. The trial court
then determined that Jackson should be questioned, under
oath, outside the jury's presence, about his clothing on the
night in question, and whether he could identify himself on
the videos, among other matters. See id. at 146–50, 152–54.
Jackson was brought in, and warned about perjury. See id. at
154–56. Jackson identified himself on the videos wearing a
jacket and a light-colored shirt. See id. at 156–59. The court
then adjourned the proceedings. See id. at 159. When the
court resumed, Jackson, through counsel, invoked his Fifth
Amendment right against self-incrimination, id. at 176, and
the court declared a mistrial, id. at 186–88.
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Plaintiff's counsel then moved to dismiss the indictment
against Plaintiff on two grounds: first, that it was based
on false testimony, and second, because of prosecutorial
misconduct. Compl. ¶ 100. On October 17, 2017, Kalra
consented to dismissal of the indictment on the first ground,
but opposed the assertion of prosecutorial misconduct.
Dismissal Tr. at 12–13, 15–16. The court dismissed the
indictment, but the presiding judge stated he did not “see any
prosecutorial misconduct.” Id. at 16.
On March 12, 2021, over three years after the indictment
was dismissed, Plaintiff commenced this action. Compl.
Defendants move separately to dismiss the claims against
them. ECF Nos. 20, 22, 32. The Court considers each motion
in turn.
DISCUSSION
I. Legal Standard
A. Rule 12(b)(1)
An action should be dismissed pursuant to Rule 12(b)(1)
where it is apparent that the court lacks subject matter
jurisdiction—that is, the statutory or constitutional power
—to adjudicate it. See Fed. R. Civ. P. 12(b)(1); Thomas v.
Metro. Corr. Ctr., No. 09 Civ. 1769, 2010 WL 2507041, at *1
(S.D.N.Y. June 21, 2010). “A plaintiff asserting subject matter
jurisdiction has the burden of proving by a preponderance of
the evidence that it exists.” Makarova v. United States, 201
F.3d 110, 113 (2d Cir. 2000). A district court must consider
a challenge to subject matter jurisdiction before addressing
other grounds for dismissal. Rhulen Agency, Inc. v. Ala. Ins.
Guar. Ass'n, 896 F.2d 674, 678 (2d Cir. 1990).
On a Rule 12(b)(1) motion, the Court must accept all material
factual allegations as true. J.S. ex rel. N.S. v. Attica Cent.
Schs., 386 F.3d 107, 110 (2d Cir. 2004). It may not, however,
“draw inferences ... favorable to [the] plaintiff[ ]” on such
a motion. Id. And, the Court may consider evidence outside
the pleadings to resolve disputed factual issues relating to
jurisdiction. See id.
B. Rule 12(b)(6)
To survive a Rule 12(b)(6) motion to dismiss, “a complaint
must contain sufficient factual matter ... to ‘state a claim to
relief that is plausible on its face.’ ” Ashcroft v. Iqbal, 556
U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550
U.S. 544, 570 (2007)). A plaintiff is not required to provide
“detailed factual allegations” in the complaint, but must assert
“more than labels and conclusions.” Twombly, 550 U.S. at
555. The court must accept the allegations in the complaint
as true and draw all reasonable inferences in favor of the
plaintiff. ATSI Commc'ns, Inc., 493 F.3d at 98. On a Rule
12(b)(6) motion, the court may consider only the complaint,
documents attached to the complaint, matters of which a court
can take judicial notice, or documents that the plaintiff knew
about and relied upon. See Chambers v. Time Warner, Inc.,
282 F.3d 147, 153 (2d Cir. 2002).
Additionally, because Plaintiff proceeds pro se, the Court
is obligated to construe his submissions “liberally and
interpret[ ] [them] to raise the strongest arguments they
suggest.” Triestman v. Fed. Bur. of Prisons, 470 F.3d 471, 474
(2d Cir. 2006) (citation omitted). And, on a motion to dismiss,
the Court may appropriately consider a pro se plaintiff's
opposition papers to “supplement or clarify” the allegations in
their complaint. Sommersett v. City of N.Y., No. 09 Civ. 5916,
2011 WL 2565301, at *3 (S.D.N.Y. June 28, 2011) (citation
omitted).
II. Duplicative and Improper Claims
*4 Count 7 of the complaint asserts a claim under 18 U.S.C.
§ 245 for the deprivation of rights under the color of law.
Compl. ¶¶ 148–51. But, no private right of action exists
under this federal criminal statute, and accordingly, Plaintiff
cannot raise a cognizable claim under it. See Corrado v. State
of N.Y. Univ. Stony Brook Police, No. 15 Civ. 7443, 2016
WL 4179946, at *3 (E.D.N.Y. Aug. 5, 2016). Count 7 is,
accordingly, DISMISSED with prejudice.
Further, the Court finds that Count 9 of the complaint—
fraudulent misrepresentation under § 1983, Compl. ¶¶ 157–
63—is duplicative of Count 4—deprivation of a fair trial
under § 1983, id. ¶¶ 133–37—because both seek redress
for violations of Plaintiff's liberty interests arising from the
alleged “fabrication of evidence by a government officer.” See
Zahrey v. Coffey, 221 F.3d 342, 349–50 (2d Cir. 2000). Count
9 is, accordingly, DISMISSED with prejudice.
Finally, three of Plaintiff's claims—Counts 4, 5, and 6—
include both federal constitutional claims and analogous
state constitutional claims. Compl. ¶¶ 133–47. The New
York State Constitution “provides a private right of action
where remedies are otherwise unavailable at common law or
under § 1983.” Allen v. Antal, 665 F. App'x 9, 13 (2d Cir.
2016). But, where alternative remedies are available under
the federal civil rights statutes, including § 1983, courts must
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dismiss the plaintiff's state constitutional claims. Id. Because
§ 1983 provides a remedy for all of Plaintiff's alleged federal
constitutional violations, any analogous state constitutional
claims are duplicative. Accordingly, the state constitutional
claims pleaded in Counts 4, 5, and 6 are DISMISSED with
prejudice.
III. The State's Motion
The State moves to dismiss the complaint under Rule 12(b)
(1), on the ground that the Eleventh Amendment bars
Plaintiff's claims against it by virtue of sovereign immunity.
State Mem. at 3, ECF No. 21. The Court agrees.
The Eleventh Amendment bars federal courts from exercising
jurisdiction over claims against states. U.S. CONST.
AMEND. XI. This extends to a state sued by its own citizens,
see Kimel v. Fla. Bd. of Regents, 528 U.S. 62, 72–73 (2000),
and state agencies, see Welch v. Texas Dep't of Highways
& Pub. Transp., 483 U.S. 468, 480 (1987). There are only
limited exceptions to this rule, none of which are applicable
here.
First, a state may waive its Eleventh Amendment defense. See
Coll. Sav. Bank v. Fla. Prepaid Postsec. Educ. Expense Bd.,
527 U.S. 666, 670 (1999). Here, the State has not explicitly
waived its immunity, or consented to be sued. See State Mem.
at 3. And, by filing a motion to dismiss, rather than an answer
to the complaint, the State cannot be said to have taken actions
inconsistent with an assertion of immunity. Cf. Lapides v. Bd.
of Regents of Univ. Sys. of Ga., 535 U.S. 613, 619 (2002)
(finding waiver of immunity where state removed action to
federal court, then asserted immunity).
Second, Congress may abrogate the states’ immunity from
suit through statute. Kimel, 528 U.S. at 80. But, Congress
has not done so for claims brought under § 1983, Dube v.
State Univ. of N.Y., 900 F.2d 587, 594 (2d Cir. 1990), §
1985, see Robinson v. Allstate Ins. Co., 508 F. App'x 7, 9 (2d
Cir. 2013), or § 1986, Medina v. Cuomo, No. 15 Civ. 1283,
2015 WL 13744627, at *6–7 (N.D.N.Y. Nov. 9, 2015). In the
“absence of [the State's] consent,” accordingly, such claims
are “proscribed by the Eleventh Amendment.” Pennhurst St.
Sch. & Hosp. v. Halderman, 465 U.S. 89, 100 (1984); see also
Trotman v. Palisades Interstate Park Comm'n, 557 F.2d 35,
40 (2d Cir. 1977).
*5 Finally, the Eleventh Amendment does not bar a “suit
against a state official when that suit seeks prospective
injunctive relief.” Seminole Tribe of Fla. v. Florida, 517
U.S. 44, 73 (1996); see also Ex parte Young, 209 U.S. 123
(1908). But here, Plaintiff seeks only money damages, and
retrospective declaratory and equitable relief. Compl. § IX.
And, Eleventh Amendment immunity shields states from
claims for money damages, Liner v. Hochul, No. 21 Civ.
11116, 2022 WL 826342, at *1 (S.D.N.Y. Mar. 17, 2022),
and “declaratory relief dealing solely with past violations,”
Medina, 2015 WL 13744627, at *7. Although Plaintiff
demands “affirmative relief necessary to eradicate the effects
of Defendants’ unlawful practices,” see Compl. § IX(B), he
does not allege any present violations of his rights, see id. See
Medina, 2015 WL 13744627, at *7 (noting that “declaratory
relief where there is no present violation, is also barred under
the Eleventh Amendment”). Accordingly, this exception does
not preclude the State's immunity defense in this matter.
Where a defendant is found to have sovereign immunity from
suit, the Court is deprived of subject-matter jurisdiction under
Rule 12(b)(1). McGinty v. New York, 251 F.3d 84, 89, 101
(2d Cir. 2001). Accordingly, because the State is immune
from liability on all of Plaintiff's claims under the Eleventh
Amendment, its motion to dismiss is GRANTED. And,
because amendment would be futile, Plaintiff's claims against
the State are DISMISSED with prejudice to renewal. 3
IV. The DA Defendants’ Motion
Plaintiff raises claims against the DA Defendants “in their
individual capacities” 4 arising inter alia under § 1983, §
1985, and § 1986, 5 based on three main factual assertions.
See generally Compl. First, Plaintiff alleges that Kalra and
Nasar wrongfully chose to prosecute him, despite the lack of
physical evidence tying him to the shooting. Compl. ¶ 81.
Second, Plaintiff asserts that Kalra and Nasar intentionally
withheld exculpatory surveillance videos until the middle of
his trial, see id. ¶¶ 75–76, 78. Third, Plaintiff alleges that the
“[p]rosecuting [a]ttorneys” “coached” Jackson to give false
testimony to the grand jury that indicted him. Id. ¶¶ 50–51.
A. Absolute Immunity
*6 The DA Defendants argue that Plaintiff's claims are
barred by absolute and qualified prosecutorial immunity. DA
Defs. Mem. at 10–12, ECF No. 22-1. To the extent Plaintiff's
claims are predicated on his allegations that Kalra and Nasar
wrongfully chose to prosecute him and withheld allegedly
exculpatory evidence, the Court agrees.
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1. Federal Claims
Although § 1983 has no immunities on its face, the Supreme
Court has held that, when Congress initially enacted the
statute, it did not intend to abrogate existing immunities
established at common law. See Imbler v. Pachtman, 424
U.S. 409, 418 (1976). Thus, both absolute and qualified
immunity are applicable defenses to § 1983 claims. See
Bernard v. Cty. of Suffolk, 356 F.3d 495, 502 (2d Cir.
2004). Prosecutors are entitled to “absolute immunity” from
liability when they function as advocates for the state in
circumstances “intimately associated with the judicial phase
of the criminal process.” Imbler, 424 U.S. at 430. But,
prosecutors are entitled only to “qualified immunity” when
they perform “investigative functions” normally undertaken
by a police officer. Buckley v. Fitzsimmons, 509 U.S. 259,
273 (1993). Under the doctrine of qualified immunity, an
official is immune from liability “only when in light of clearly
established law and the information the official possesses, it
was objectively reasonable for him to think that his actions
were lawful.” Hill v. City of N.Y., 45 F.3d 653, 663 (2d Cir.
1995).
Courts employ a “functional approach” to determine the
availability of absolute immunity, looking to “the nature of
the function performed, not the identity of the actor who
performed it.” Buckley, 509 U.S. at 269 (citations omitted).
And, although the party claiming absolute immunity bears the
burden of establishing its applicability, see Doe v. Phillips, 81
F.3d 1204, 1209 (2d Cir. 1996), if the court finds that that the
conduct at issue is covered by absolute immunity, then the
actor is shielded from liability for damages no matter “how[ ]
erroneous the act ... and how[ ] injurious ... its consequences.”
Cleavinger v. Saxner, 474 U.S. 193, 199–200 (1985) (citation
omitted); see also Anilao v. Spota, No. 19 Civ. 3949, 2022
WL 697663, at *4 (2d Cir. Mar. 9, 2022).
Plaintiff first alleges that Kalra and Nasar improperly chose
to prosecute him, despite a lack of physical evidence tying
him to the crime. Compl. ¶ 81. But, prosecutors are immune
from suit for decisions regarding “whether and when to
prosecute,” Imbler, 424 U.S. at 430–31 n.32–33, even where
they may prosecute an innocent individual, Schmueli, 424
F.3d at 237–39. Kalra and Nasar are, therefore, entitled to
absolute immunity to the extent Plaintiff's claims are based on
their decision to prosecute him. 6
Second, Plaintiff alleges that Kalra and Nasar intentionally
withheld exculpatory surveillance videos until the middle
of trial, Compl. ¶¶ 75–76, 78. But again, prosecutors are
entitled to absolute immunity for all decisions taken “in
their prosecutorial capacity, including decisions regarding
which evidence should be disclosed to a criminal defendant.”
Newson v. City of N.Y., No. 16 Civ. 6773, 2019 WL
3997466, at *3 (E.D.N.Y. Aug. 23, 2019). This is true
even where information was deliberately withheld, Ying Li
v. City of New York, 246 F. Supp. 3d 578, 640 (E.D.N.Y.
2017), or where such withholding violated the defendant's
constitutional rights, see Warney v. Monroe Cnty., 587 F.3d
113, 125 (2d Cir. 2009). Accordingly, Kalra and Nasar have
absolute immunity to the extent any of Plaintiff's claims are
predicated on a violation under this factual allegation.
*7 Finally, Plaintiff alleges that the “Prosecuting Attorneys”
coached Jackson to give false testimony to the grand jury,
which then formed the basis for his indictment. Compl. ¶¶
50–51. Prosecutors generally only have qualified immunity
for actions taken before there is probable cause to arrest
a defendant, because they are performing an investigative
function, rather than acting as advocates. See Hill, 45 F.3d
at 661; Buckley, 509 U.S. at 273. And, although “knowingly
presenting evidence” to a grand jury is considered the “core
of a prosecutor's role as an advocate,” Bernard, 356 F.3d
at 503, the Second Circuit has distinguished between a
prosecutor's knowing presentation of false evidence to the
grand jury—which is still entitled to absolute immunity
—from a prosecutor's deliberate fabrication of evidence,
Hill, 45 F.3d at 662–63 (finding that where prosecutor
deliberately manufactured evidence to establish probable
cause for plaintiff's arrest, his conduct was investigatory,
regardless of whether, when the evidence was manufactured,
the prosecutor intended to present it to the grand jury). In
Hill, the Second Circuit also established that “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 qualified immunity from
claims based on such conduct cannot be decided as a matter
of law on a motion to dismiss.” Id. at 663.
As in Hill, Plaintiff alleges that the prosecutors deliberately
participated in the fabrication of false evidence by coaching
a material witness to give perjured testimony to the grand
jury, so that the jury would return an indictment. Compl.
¶¶ 50–51. Allegations that the prosecution falsified evidence
are distinct from allegations that the prosecution merely
presented evidence they knew to be false. Compare Hill,
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45 F.3d at 662–63, with Urrego v. United States, No. 00
Civ. 1203, 2005 WL 1263291, at *2 (E.D.N.Y. May 27,
2005) (prosecutors receive absolute immunity for claims
predicated on “false presentation of evidence to a grand
jury”). And, considering the Court's obligation to liberally
construe Plaintiff's pleadings and afford every reasonable
inference in his favor at this stage, the Court concludes the
DA Defendants have not established that they were acting as
“advocates,” rather than “investigators,” when they engaged
in the challenged conduct. Hill, 45 F.3d at 660 (officials
asserting absolute immunity bear the burden of establishing
it for the action in question). And, accepting the facts in
the complaint as true, the DA Defendants would not be
entitled to even qualified immunity, because it is objectively
unreasonable for them to have knowingly coached a witness
to give false testimony before a grand jury. See Cipolla v.
Cty. of Rensselaer, 129 F. Supp. 2d 436, 456 (N.D.N.Y.
2001) (not “objectively reasonable” to believe presenting or
soliciting perjured testimony did not violate plaintiff's clearly
established rights). Accordingly, to the extent that Counts 3, 4,
5, 6, and 8 are predicated on the claim that the DA Defendants
coached Jackson to give false testimony, they are not entitled
to either absolute or qualified immunity.
2. State Claims
Plaintiff raises state-law claims against the DA Defendants
in Counts 10 and 14 of the complaint. Compl. ¶¶ 164–67,
182–85. As with federal law, under New York law, a district
attorney prosecuting crime is performing a quasi-judicial
function, and, as such, is entitled to absolute immunity.
Arteaga v. State, 72 N.Y.2d 212, 217 n.1 (N.Y. 1988). But,
unlike federal law, prosecutors are absolutely immune for
official acts in both the prosecution and investigation of
criminal charges. See Moore v. Dormin, 173 Misc. 2d 836,
843, (N.Y. Sup. Ct. 1997), aff'd as modified, 252 A.D.2d 421
(N.Y. App. Div. 1998). A prosecutor does not receive absolute
immunity, however, “when knowingly acting in violation of
law.” Id. As with Plaintiff's federal claims, to the extent his
state law claims against the DA Defendants are predicated
on his allegations that they improperly targeted him for
prosecution or deliberately withheld exculpatory evidence,
the DA Defendants are entitled to absolute immunity. But,
construing Plaintiff's third allegation liberally, he essentially
claims that the prosecutors knowingly acted in violation of
the law by suborning perjury. The Court cannot conclude,
therefore, that the DA Defendants are entitled to absolute
immunity as a matter of state law to the extent Counts 10 and
14 rest on this allegation. 7
B. Time Bar
*8 The DA Defendants argue that Plaintiff's claims are
untimely. DA Defs. Mem. at 6–8. With the exception of
Counts 3 (§ 1983 malicious prosecution) and 4 (§ 1983
deprivation of a fair trial), the Court agrees.
1. Federal Claims
Claims arising under §§ 1983 and 1985, when brought in
this district, are governed by New York's three-year statute of
limitations for personal injury actions, N.Y. C.P.L.R. § 214;
Pearl v. City of Long Beach, 296 F.3d 76, 79 (2d Cir. 2002)
(citation omitted); Hernandez-Avila v. Averill, 725 F.2d 25, 27
n.3 (2d Cir. 1984). But, claims under § 1986 have a one-year
statute of limitations, see 42 U.S.C. § 1986. Federal courts
are also obligated to apply New York's tolling rules. Bd. of
Regents of Univ. of the State of N.Y. v. Tomanio, 446 U.S. 478,
483 (1980).
On March 20, 2020, then-Governor Andrew Cuomo issued
Executive Order 202.8, which tolled the statute of limitations
in New York in light of the COVID-19 pandemic. 9
N.Y.C.R.R. § 8.202.8. Subsequent orders extended the tolling
period until November 3, 2020. Exec. Order 202.67 (Oct. 4,
2020). Contrary to the DA Defendants’ assertion, see DA
Defs. Mem. at 7–8, other courts in this district have uniformly
concluded that Executive Order 202.8 applies to federal cases
applying New York's statute of limitations, including for §
1983 claims. See, e.g., Lewis v. Westchester Cnty., No. 20 Civ.
9017, 2021 WL 3932626, at *2 n.3 (S.D.N.Y. Sept. 2, 2021). 8
The Court concludes, therefore, that Executive Order 202.8
tolls the statute of limitations for Plaintiff's §§ 1983 and 1985
claims, which apply New York's three-year limitations period
—but not Plaintiff's § 1986 claims, because the applicable
statute of limitations for that claim is found in the federal
statute itself.
Section 1983 claims based on malicious prosecution or
deprivation of a fair trial accrue when the underlying criminal
action against the plaintiff is “favorably” terminated, rather
than at the time of arrest. Sharp v. Cnty. of Putnam, No.
18 Civ. 780, 2019 WL 2250412, at *4 (S.D.N. Y May
24, 2019); Shabazz v. Kailer, 201 F. Supp. 3d 386, 394
(S.D.N.Y. 2016). The dismissal of an indictment constitutes
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the termination of a proceeding. Sharp, 2019 WL 2250412,
at *4–5. Applying these principles, Plaintiff's § 1983 claims
for malicious prosecution (Count 3) and denial of a fair trial
(Count 4) accrued on October 17, 2017, the date the trial
court dismissed the indictment against him. Dismissal Tr. at
5. And, although the statute of limitations would have expired
on October 17, 2020, New York's COVID-19 tolling rule
extended the limitations period until June 2, 2021. 9 Because
Plaintiff commenced this suit on March 12, 2021, Counts 3
and 4 are timely.
*9 By contrast, a § 1983 abuse-of-process claim accrues
when the criminal process is “set in motion—typically
at arrest—against the plaintiff.” Hadid v. City of N.Y.,
No. 15 Civ. 19, 2015 WL 7734098, at *5 (E.D.N.Y.
Nov. 30, 2015), aff'd 730 F. App'x 68 (2d Cir. 2018).
Because Plaintiff was arrested on January 27, 2016, the
relevant statute of limitations for Count 8, § 1983 abuse
of process, expired on January 27, 2019, and COVID-19
tolling provisions are, therefore, inapplicable. Accordingly,
this claim is DISMISSED with prejudice as untimely.
Section 1985(3) conspiracy claims accrue “at the time of
the events that caused the injury.” Panetta v. Cassel, 20
Civ. 2255, 2020 WL 2521533, at *5 (S.D.N.Y. May 18,
2020). The existence of a conspiracy “does not postpone the
accrual of causes of action arising out of the conspirators’
separate wrongs. It is the wrongful act, not the conspiracy,
which is actionable, whether the act is labelled a tort or a
violation of [federal civil rights statutes].” Singleton v. City
of N.Y., 632 F.2d 185, 192 (2d Cir. 1980) (citation omitted).
As discussed, the single allegation that escapes absolute
immunity—and therefore is the only remaining basis for
Plaintiff's claims against the DA Defendants—is that those
defendants suborned perjury in the grand jury proceedings
by coaching Jackson to give false testimony, resulting in
Plaintiff's indictment and arrest. Plaintiff's § 1985(3) claim—
Count 5 of the complaint—accrued no later than January 27,
2016, the date of his arrest—which again, applying a three-
year statute of limitations untouched by COVID-19 tolling
provisions, renders it untimely. Count 5 is, accordingly,
DISMISSED with prejudice.
Similarly, Count 6, Plaintiff's § 1986 conspiracy claim,
accrued when Plaintiff knew, or had reason to know of the
harm or injury. Young v. Lord & Taylor, LLC, 937 F. Supp. 2d
346, 354 (E.D.N.Y. 2013). Plaintiff knew of the injury by his
arrest date. Applying § 1986’s one-year statute of limitations,
any § 1986 claim Plaintiff brought after January 27, 2017,
is untimely. 10 Accordingly, Count 6 is DISMISSED with
prejudice.
2. State Claims
Counts 10 and 14 of the complaint—both state common-
law claims—are also time-barred. “Under New York law,
a plaintiff asserting tort claims against the City or its
employees,” as well as against municipal officials like district
attorneys, “must file a notice of claim within [90] days after
the incident giving rise to the claim and commence the action
within a year and [90] days from the date of the incident.”
Brown v. City of N.Y., No. 18 Civ. 3287, 2020 WL 1819880,
at *7 (S.D.N.Y. Apr. 9, 2020) (citing N.Y. Gen. Mun. Law
§§ 50-e(1)(a), 50-i(1)); see also Gonzalez v. City of N.Y., No.
94 Civ. 7377, 1996 WL 227824, *2 (S.D.N.Y. May 3, 1996).
Plaintiff asserts that he filed the requisite notice of claim with
the City on January 16, 2018—720 days after his arrest, and
91 days after the dismissal of the indictment. Compl. ¶ 16.
Plaintiff did not commence this action until March 12, 2021.
See Compl. Therefore, Plaintiff neither timely filed a notice of
claim within 90 days, nor did he commence this lawsuit within
a year and 90 days after the date the indictment was dismissed
—the last date that could possibly serve as the trigger for the
statute of limitations. Failure to comply with the mandatory
notice of claim requirements is a basis for dismissal of a
plaintiff's claims. Warner v. Vill. of Goshen Police Dep't, 256
F. Supp. 2d 171, 175 (S.D.N.Y. 2003). The Court, accordingly,
concludes that Counts 10 and 14 are also time-barred, and
therefore, these claims are DISMISSED with prejudice.
C. Personal Involvement
*10 Liability under § 1983 must be premised on a
defendant's direct, personal involvement in the alleged
violations. See Tangreti v. Bachmann, 983 F.3d 609, 618 (2d
Cir. 2020). A defendant cannot be held vicariously liable
under § 1983 for employing or supervising an employee
that violated the plaintiff's rights—rather, a plaintiff must
plead “that each Government-official defendant, through
the official's own individual actions, has violated the
Constitution.” Iqbal, 556 U.S. at 676.
As to Vance, Plaintiff only alleges that he served as the DA
of New York County. Compl. ¶ 11. Vance may not be held
liable for merely employing or supervising Kalra and Nasar.
See Iqbal, 556 U.S. at 676. And, Plaintiff neither pleads that
Vance was personally involved in investigating the shooting
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or prosecuting him, nor is there any evidence in the record to
support such a finding. Accordingly, Plaintiff's claims against
Vance are DISMISSED with prejudice, because given the lack
of evidence of Vance's personal involvement, the Court finds
that granting leave to amend would be futile. Hill v. Curcione,
657 F.3d 116, 123–24 (2d Cir. 2011).
Plaintiff similarly fails to specify Kalra and Nasar's personal
involvement in his claimed constitutional violations, stating
only that the “Prosecuting Attorneys” coached Jackson to
provide testimony. Compl. ¶ 50. But, given Plaintiff's position
as a pro se litigant, the Court recognizes that there may be
additional information made available to Plaintiff through
discovery that would enable Plaintiff to assert claims directly
against Kalra and Nasar, such as if, for example, either
of them prepared Jackson to testify. By April 15, 2022,
accordingly, the DA Defendants shall, through counsel,
inform Plaintiff and the Court whether Kalra or Nasar
prepared Jackson to testify before the grand jury with respect
to any potential criminal charges against Plaintiff, and/or
conducted an examination of Jackson before the grand jury.
No later than May 16, 2022, Plaintiff shall file an amended
complaint, alleging with specificity Kalra and Nasar's direct,
personal involvement in either “coaching” Jackson to testify
falsely before the grand jury, or deliberately eliciting false
testimony from Jackson during the grand jury proceedings.
In addition, because, as detailed infra at 25–26, the Court
finds that Plaintiff's malicious prosecution claim is deficient
because he failed to allege that the underlying criminal
proceedings terminated in his favor, an argument raised by
the City Defendants but not the DA Defendants, any amended
malicious prosecution claim that Plaintiff wishes to assert
against Kalra and Nasar should also address this issue. Failure
to do so shall result in dismissal with prejudice of Plaintiff's
remaining claims against Kalra and Nasar.
V. City's Motion to Dismiss
Plaintiff brings claims against the City Defendants, on the
grounds that (1) Miller failed to conduct a thorough and
complete investigation of the shooting, by not interviewing
several witnesses, including the 911 caller, Compl. ¶¶ 36–37,
39; (2) in his investigation, Miller obtained—but disregarded
—surveillance video from both the inside and outside of
Highline Ballroom, id. ¶¶ 40–43; (3) that Miller “used his own
added facts and embellished statements” in his investigative
reports to target Plaintiff as the sole suspect in the shooting, id.
¶ 44, see also ¶ 39; (4) that Corrando, as Miller's supervisor,
approved his investigative reports but failed to notice the
inconsistencies and contradictions therein, id. ¶ 95; and (5)
that Passamenti “authorized DNA tests,” which revealed that
the DNA evidence recovered at the scene “did not match
Plaintiff,” id. ¶ 96. The Court addresses each remaining 11
cause of action.
A. Time Bar
1. Section 1983 Claims
*11 Plaintiff brings claims under § 1983 for unlawful search
and seizure (Count 1); false arrest (Count 2); malicious
prosecution (Count 3); deprivation of a fair trial (Count 4);
and abuse of process (Count 8). As noted, § 1983 claims are
subject to a three-year statute of limitations in this district. See
supra at 15. And, for the reasons discussed with respect to
the DA Defendants, the Court concludes that Counts 3 and 4
were timely pleaded. See supra at 16–17.
A § 1983 unlawful search and seizure claim, however,
accrues on the date the allegedly unlawful search occurred.
McClanahan v. Kelly, No. 12 Civ. 5326, 2014 WL 1317612, at
*4 (S.D.N.Y. Mar. 31, 2014). Plaintiff alleges that his property
was searched on January 9, February 12, and February 15,
2016. Compl. ¶¶ 46–47. The applicable statute of limitations,
therefore, expired no later than February 15, 2019, nearly
two years before Plaintiff brought suit. Plaintiff's claims
are, therefore, untimely, and Count 1 is DISMISSED with
prejudice as time-barred.
Section 1983 false arrest claims and abuse-of-process claims
accrue from the date of Plaintiff's arrest. See Rivera v. City
of N.Y., No. 16 Civ. 9709, 2019 WL 252019, at *4 (S.D.N.Y.
Jan. 17, 2019) (false arrest); Anderson v. Cnty. of Putnam,
No. 14 Civ. 7162, 2016 WL 297737, at *3 (S.D.N.Y. Jan. 22,
2016) (abuse-of-process). Plaintiff was arrested on January
27, 2016, and therefore, any such claims should have been
brought no later than January 27, 2019. Counts 2 and 8 are,
accordingly, DISMISSED with prejudice as untimely.
2. Sections 1985(3) and 1986 Claims
Liberally construing the complaint, in Count 5, Plaintiff
sets forth a conspiracy cause of action under § 1985(3),
alleging that the City Defendants engaged in a conspiracy to
have Plaintiff wrongfully convicted, see Compl. ¶ 97. This
claim appears predicated on the NYPD investigation into the
January 6, 2016 shooting, and Miller's alleged embellishment
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of information, and focus on Plaintiff as the sole suspect.
Id. ¶¶ 36–37, 39, 46, 90. Plaintiff also raises a failure-to-
intervene claim under § 1986 (Count 6), seemingly arising
from Corrando's alleged failure to notice the inconsistencies
and contradictory statements allegedly included in Miller's
police reports. Id. ¶ 95.
Section 1985(3) claims accrue “at the time of the events that
caused the injury,” and are subject to a three-year statute
of limitations, Panetta, 2020 WL 2521533, at *5. Section
1986 claims based on a failure to intervene accrue when the
defendant fails to intervene, Thomas v. City of Troy, 293 F.
Supp. 3d 282, 303 (N.D.N.Y. 2018), and must be brought
within one year, see 42 U.S.C. § 1986. Plaintiff's claims
each began accruing no later than January 27, 2016, the date
of Plaintiff's arrest, because Plaintiff does not suggest that
any investigation took place after that date. The applicable
limitations period extends no later than January 27, 2019,
for Plaintiff's § 1985(3) claim, and January 27, 2017 for
Plaintiff's § 1986 claim, two and four years, respectively,
before the complaint was filed. Counts 5 and 6 are, therefore,
DISMISSED with prejudice as time-barred.
3. State Claims
To the extent Plaintiff's state common-law claims, asserting
various types of negligence, arise from the NYPD
investigation into the shooting on January 6, 2016; the
searches of Plaintiff's property on January 9, February 12,
and February 15, 2016; and Plaintiff's arrest on January 27,
2016, Plaintiff was required to file a notice of claim within
90 days of those events, see N.Y. Gen. Mun. L. § 50-e. As
noted, Plaintiff did not file a notice of claim with the City
until January 16, 2018—one year and eleven months after
the latest of those dates. Compl. ¶ 16. Accordingly, each of
Plaintiff's negligence claims (Counts 10–14) are DISMISSED
with prejudice. 12
B. Claim Against the City 13
*12 The Court reads Plaintiff's complaint as claiming, under
Monell v. Department of Social Services, 436 U.S. 658,
that the City is liable for the allegedly unlawful conduct
of the named NYPD officers. See Compl. ¶ 179. The City
Defendants argue that Plaintiff does not include sufficient
factual allegations to support a municipal liability claim. City
Defs. Mem. at 20–22, ECF No. 34. The Court agrees.
To bring a municipal liability claim under § 1983, the plaintiff
must “prove the existence of a municipal policy or custom,”
then demonstrate a causal connection between the policy
and the alleged constitutional deprivation. Vippolis v. Vill. of
Haverstraw, 768 F.2d 40, 44 (2d Cir. 1985). Plaintiff pleads
neither, offering only conclusory allegations that the City
Defendants “engaged in a pattern and practice to commit
the aforementioned unlawful acts,” Compl. ¶ 179, and that
a policy is “inferred” because the City Defendants “took
no steps to reprimand or discharge the officers involved,”
ECF No. 39 at 27. These allegations cannot, without more,
state a claim for municipal liability. E.g., Fleming v. City
of New York, No. 18 Civ. 4866, 2020 WL 5522871, at *6
(S.D.N.Y. July 23, 2020). Because Plaintiff offers no facts
which suggest that the deficiencies in his Monell claim may
be cured by amendment, any such claim is DISMISSED with
prejudice. Strong v. City of Syracuse, No. 16 Civ. 1054, 2020
WL 137250, at *3–4 (N.D.N.Y. Jan. 13, 2020) (dismissing
Monell claim, with prejudice, given “[p]laintiff's conclusory
allegations are insufficient to plausibly infer a custom or
policy to support municipal liability”).
C. Passamenti's Personal Involvement
Plaintiff's remaining claims are Counts 3 (malicious
prosecution) and 4 (denial of a fair trial). As to Defendant
Passamenti, Plaintiff alleges that Passamenti authorized DNA
tests, which revealed that the DNA evidence recovered at the
scene “did not match Plaintiff.” Compl. ¶ 96. Plaintiff does
not allege that Passamenti was involved in falsification of
evidence, that he attempted to hide the results of the relevant
DNA tests, or that he was otherwise responsible for, or even
aware of, the alleged “embellishment” of statements in the
NYPD's investigative reports. Plaintiff has not, therefore,
sufficiently alleged Passamenti's direct, personal involvement
in any constitutional violations under § 1983. Tangreti, 983
F.3d at 618. And, because the record does not establish
that Plaintiff could cure this pleading defect by amendment,
Plaintiff's claims against Passamenti are DISMISSED with
prejudice.
D. Malicious Prosecution
A claim for malicious prosecution under § 1983—Count
3 of the complaint—requires the plaintiff to show that the
criminal proceedings against him were terminated “in his
favor,” typically by an acquittal or another form of dismissal
of the charges on the merits. Janetka v. Dabe, 892 F.2d 187,
189–90 (1989). The City Defendants argue that Plaintiff has
not made such a showing. City Defs. Mem. at 10, 14–17. The
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Court agrees. Plaintiff asserts—citing no authority in support
—that the dismissal of the indictment was a “termination
in his favor” because dismissals that “include constitutional
privilege assertions are considered favorable terminations.”
ECF No. 39 at 7, 10 (quotation marks omitted). It is not clear
what Plaintiff means by this. And, from the Court's review
of the state court transcript, it appears that, in dismissing
the indictment, neither the prosecution, nor the court, made
any statements indicating a belief in Plaintiff's innocence. See
Lanning v. City of Glens Falls, 908 F.3d 19, 28 (2d Cir. 2018)
(looking to the “reasons ... stated on the record for dismissing
the charges” in determining whether the termination of
the criminal case was in plaintiff's favor). Indeed, Kalra
expressly declined to concede that Plaintiff was innocent,
instead reaffirming her belief that Plaintiff “was the shooter.”
Dismissal Tr. at 15. The presiding judge similarly stated on
the record that dismissal of the indictment was warranted even
though he did not “see any prosecutorial misconduct.” Id. at
16. The dismissal of the indictment, therefore, left open the
question of Plaintiff's guilt or innocence, and Plaintiff cannot,
accordingly, assert on that basis alone, that the proceedings
were terminated in his favor.
*13 The Court notes, however, that because four years
have passed since the dismissal of the indictment, Plaintiff
may be able to plead additional facts from that time that
support this relevant element of his claim. There is no
information before the Court as to whether, for example,
Plaintiff was ever informed by the prosecutors that he had
been cleared of wrongdoing, whether Jackson or anyone
else was later prosecuted for the shooting, or whether the
state court made any further statements regarding the merits
of the charges against Plaintiff. Count 3 is, accordingly,
DISMISSED without prejudice, to provide Plaintiff with an
opportunity to plead additional facts to support this claim.
E. Denial of Fair Trial
To state a claim under § 1983 for denial of a fair trial based on
the fabrication of evidence by a police officer—Count 4 of the
complaint—a plaintiff must allege that “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, 277 (2d Cir. 2016) (citation omitted). The
plaintiff need not show a favorable termination indicative
of innocence to state such a claim. Smalls v. Collins, 10
F. 4th 117, 142–43 (2d Cir. 2021). The City Defendants
argue that Plaintiff has failed to show a deprivation of his
liberty interests because there was probable cause for his
prosecution, in the form of corroborative ballistics evidence.
City Defs. Mem. at 16 (citing Dismissal Tr. at 15); City Defs.
Reply at 6–7, ECF No. 46.
Probable cause is not a complete defense to a fair trial claim.
Torres v. City of N.Y., No. 16 Civ. 6719, 2017 WL 4325822, at
*5 (E.D.N.Y. Sept. 27, 2017) (noting that where “independent
probable cause exists for the prosecution,” a plaintiff must
“show that the misconduct caused some deprivation above
and beyond the fact of the prosecution itself.” (citation
omitted)). Plaintiff plausibly alleges that Miller fabricated
and “embellished” Jackson's statements in his investigative
report; that Miller provided these reports to prosecutors to
secure Plaintiff's indictment and arrest; and that Corrando,
as Miller's supervisor, reviewed and approved these reports
without identifying any “embellishments” or obvious factual
contradictions. See Compl. ¶¶ 44–49, 95. On a motion to
dismiss, the Court cannot take as true the City Defendants’
factual assertion that, regardless of any alleged fabrications
in Miller's reports, the prosecution had independent ballistics
evidence to satisfy the probable cause standard. Compare City
Defs. Reply at 6–7, with ECF No. 39 at 9–12. It cannot,
therefore, find as a matter of law, that the City Defendants had
probable cause for Plaintiff's indictment and prosecution. See
Bullard v. City of N.Y., 240 F. Supp. 2d 292, 299 (S.D.N.Y.
2003). The Court concludes, therefore, that Plaintiff has
sufficiently alleged a § 1983 denial of fair trial claim against
Miller and Corrando. The City Defendants’ motion to dismiss
Count 4 of the complaint is, accordingly, DENIED.
CONCLUSION
For the reasons stated above, the State's motion to dismiss,
ECF No. 20, is GRANTED, and Plaintiff's claims against
the State are DISMISSED. The DA Defendants’ motion
to dismiss, ECF No. 22, is GRANTED—Plaintiff's claims
against Vance are DISMISSED; and his claims against Kalra
and Nasar are DISMISSED except for Counts 3 and 4, which
are DISMISSED without prejudice to renewal in an amended
complaint. By April 15, 2022, the DA Defendants shall make
the disclosures directed in this order. The City Defendants’
motion to dismiss is DENIED as to Count 4, and GRANTED
in all other respects. Plaintiff's claims against Passamenti, the
NYPD, and the City are DISMISSED; and his claims against
Miller and Corrando are DISMISSED, except for Count 3,
which is DISMISSED without prejudice to renewal in an
amended complaint.
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*14 By May 16, 2022, Plaintiff shall file an amended
complaint as to Counts 3 and 4, with the additional factual
allegations detailed in this order. The Clerk of Court is
directed to terminate the motions pending at ECF Nos. 20,
22, and 32, and mail a copy of this order to Plaintiff pro se.
The Court shall separately provide Plaintiff with a copy of all
unpublished cases cited herein.
SO ORDERED.
All Citations
Not Reported in Fed. Supp., 2022 WL 992885
Footnotes
1 Unless otherwise stated, the following facts are taken from the complaint and assumed, for purposes of this
motion, to be true. ATSI Commc'ns, Inc. v. Shaar Fund, Ltd., 493 F.3d 87, 98 (2d Cir. 2007).
2 The relevant state court trial transcripts were submitted by the DA Defendants in their motion to dismiss. See
Trial Tr.; Dismissal Tr., ECF No. 22-4. The Court may take judicial notice of these transcripts as a matter of
public record. See Shmueli v. City of N.Y., 424 F.3d 231, 233 (2d Cir. 2005).
3 Because the Court concludes that it lacks jurisdiction over Plaintiff's claims against the State under Rule
12(b)(1), it need not reach the State's alternative ground for dismissal, that Plaintiff's § 1983 and § 1985
claims must be dismissed because the State is not a suable “person” within the meaning of those statutes.
State Mem. at 3–4.
4 Plaintiff makes this clarification for the first time in his opposition papers. ECF No. 28 at 14. The Court notes
that because, as discussed, the Eleventh Amendment bars suits against states, see supra at 8–10, when
a defendant is sued in his official capacity, the court treats the suit as one against the “entity of which an
officer is an agent.” Kentucky v. Graham, 473 U.S. 159, 165–66 (1985) (quoting Monell v. N.Y.C. Dep't of
Soc. Serves, 436 U.S. 658, 690 n.55 (1978)). And, where a “district attorney or an assistant district attorney
acts as a prosecutor, she is an agent of the State, and therefore immune from suit in her official capacity.”
D'Alessandro v. City of N.Y., 713 F. App'x 1, 8 (2d Cir. 2017). Accordingly, any claims Plaintiff may raise
against the DA Defendants in their “official capacity” would be precluded by immunity under the Eleventh
Amendment. See id.
5 Although Plaintiff asserts that he pleads each of his claims against “all Defendants,” even a liberal read of
the complaint makes clear that certain of Plaintiff's claims cannot implicate the DA Defendants’ conduct,
including counts 1 (unreasonable search and seizure); 2 (false arrest/imprisonment); 11 (personal injury);
12 (property damage) and 13 (negligent hiring, training, supervision, and discipline of officers). Compl. ¶¶
117–27, 168–81. As the Court has already dismissed Counts 7 and 9, see supra at 7–8, it only considers
Counts 3 (malicious prosecution); 4 (deprivation of fair trial); 5 (conspiracy); 6 (failure to intervene); 8 (abuse
of process); 10 (negligent misrepresentation); and 14 (negligent infliction of emotional distress) against the
DA Defendants.
6 Because the Court finds that the DA Defendants are entitled to absolute immunity on any claims arising from
the withholding of exculpatory evidence, the Court does not reach their alternative argument that Plaintiff fails
to state a claim for an alleged Brady violation, see DA Defs. Mem. at 12–15.
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7 As noted, the parallel state-law constitutional claims in Counts 4, 5, and 6 are dismissed with prejudice. See
supra at 8.
8 The DA Defendants’ reliance on Johnson v. Fargione is unavailing. In that case, the court found that the
plaintiff's claims, which had expired weeks before the issuance of Executive Order 202.8, could not “be said
to have been tolled” by that Executive Order, as the time for filing had already passed and the plaintiff had
offered no excuse for the delay. 20 Civ. 764, 2021 WL 1406683, at *3 (N.D.N.Y. Feb. 17, 2021), report and
recommendation adopted 2021 WL 1404554 (Apr. 14, 2021). Although Johnson is instructive with respect
to how claims that may have expired before the issuance of Executive Order 202.8 (i.e., before March 20,
2020) should be treated, it does not address the applicability of the Executive Order to federal claims that,
like Plaintiff's, had not yet expired by that date.
9 Executive Order 202.8 tolled applicable limitations periods from March 20, 2020 to November 3, 2020. The
order amounted to a “pause” in the limitations period—that is, during the duration of the toll, the clock to file
[did] not run,” but “[o]nce the toll end[ed,] the clock resume[d] from where it was when the toll began, and the
plaintiff ha[d] the rest of his limitations period to file his complaint,” Johnston v. City of Syracuse, No. 20 Civ.
1497, 2021 WL 3930703, at *6 (N.D.N.Y. Sept. 2, 2021). Because, as of March 20, 2020, when the clock
was “paused,” Plaintiff had 211 days remaining before the expiration of the limitations period on October 17,
2020, the Court calculates 211 days after November 3, 2020, as the end of the relevant limitations period
when tolled—which is June 2, 2021.
10 Even assuming, arguendo, that Plaintiff would not have had reason to know of the harm or injury that was
the basis of his Section 1986 claim until the date the indictment was dismissed (October 17, 2017), the claim
would still be time-barred, because this would only extend the limitations period to October 17, 2018—nearly
three years before the commencement of this action.
11 As noted, the Court dismissed Count 7 for relying on a statute that does not provide a private right of action,
see supra at 7; Count 9 for being duplicative of Count 4, see id. at 8, and all the state constitutional claims
Plaintiff asserts analogously to his federal constitutional claims, see id.
12 As discussed supra at 18–19, even if the Court construes Plaintiff's notice of claim as timely based on the
dismissal of Plaintiff's criminal case on October 17, 2017, Plaintiff still failed to commence this action within
one year and 90 days, as required by statute. This provides an alternative ground for dismissal.
13 Plaintiff also names the NYPD as a defendant. See Compl. But, the NYPD is a non-suable agency of the
City, and thus, to the extent any of Plaintiff's claims are brought against it, they fail as a matter of law. See
Jenkins v. City of N.Y., 478 F.3d 76, 93 n.19 (2d Cir. 2007). Any such claims are, accordingly, DISMISSED
with prejudice.
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Tsinberg v. City of New York, Not Reported in Fed. Supp. (2021)
© 2025 Thomson Reuters. No claim to original U.S. Government Works. 1
2021 WL 1146942
Only the Westlaw citation is currently available.
United States District Court, S.D. New York.
Leon G. TSINBERG, Plaintiff,
v.
CITY OF NEW YORK, Defendant.
20 Civ. 749 (PAE)
|
Signed 03/25/2021
Attorneys and Law Firms
Leon G. Tsinberg, Bronx, NY, Pro Se.
Pamela Ann Koplik, Mark W. Muschenheim, NYC Law
Department, Office of the Corporation Counsel, New York,
NY, for Defendant.
OPINION & ORDER
PAUL A. ENGELMAYER, District Judge:
*1 Plaintiff Leon G. Tsinberg, a “non-admitted attorney”
proceeding pro se, sues the City of New York (the “City”)
under 42 U.S.C. § 1983, alleging constitutional violations
arising from the ticketing and towing of his 2009 Nissan
Altima (the “Vehicle”).
In 2018, while Tsinberg was temporarily living out of state,
the Vehicle accumulated several parking tickets, mostly for
displaying an expired registration. After Tsinberg failed to
respond to those tickets, the City entered default judgments
on them. Tsinberg later moved to reopen those judgments, but
did not succeed. Then, in January 2019, the City immobilized
and towed the Vehicle, which remains in storage accruing
storage fees. Tsinberg alleges that these events violated, inter
alia, his due process rights under the Fourteenth Amendment,
his right to be free from excessive fines under the Eighth
Amendment, his right to be free from unreasonable seizures
under the Fourth Amendment, and his right against double
jeopardy under the Fifth Amendment. The City has moved to
dismiss all Tsinberg's claims.
Before the Court is the report and recommendation of the
Honorable Sarah L. Cave, United States Magistrate Judge,
recommending that the City's motion to dismiss be granted.
See Dkt. 46 (“Report”). For the following reasons, the Court
adopts that recommendation in full.
I. Background
A. Factual Background 1
The Court adopts the Report's comprehensive account of the
facts and procedural history, to which no party objects. The
following summary captures the limited facts necessary for
an assessment of the issues presented.
In New York City, the Parking Violations Bureau (“PVB”) 2
issues and adjudicates summonses for violations of parking
and traffic laws. See N.Y. Veh. & Traf. Law (“VTL”)
§ 237(1)–(2), (9); N.Y.C. Admin. Code § 19-201 et seq.
A person accused of a parking violation is first given a
summons, i.e., a parking ticket, containing information about
the charged offense and how to contest or pay it. See VTL
§ 238(1); N.Y.C. Admin. Code § 19-204(a). State and City
law require that, if the operator of the vehicle is not present at
the time of service, notice of the violation must be affixed to
the vehicle “in a conspicuous place.” VTL § 238(2); N.Y.C.
Admin. Code § 19-204(b). In that case, such notice “shall
have the same force and effect and shall be subject to the
same penalties for disregard thereof as” personal service on
the violator. VTL § 238(2); N.Y.C. Admin. Code § 19-204(b).
*2 Once a parking summons issues, the recipient may plead
guilty and pay the fine, or plead not guilty and receive a
hearing date before an administrative law judge (“ALJ”).
N.Y.C. Admin. Code §§ 19-202, 19-204, 19-206. A person
may so plead by mail, by phone, in person at one of the
Department of Finance's “Business Centers,” or online, either
through the City's website or a “Pay or Dispute” application.
See Schaer v. City of New York, No. 09 Civ. 7441 (CM), 2011
WL 1239836, at *7 (S.D.N.Y. Mar. 25, 2011); Report at 3–
4. If a party fails to plead or appear, the City may obtain
a default judgment sustaining the charge in the summons,
fixing the fine, and assessing fees and penalties. See N.Y.C.
Rules & Regs. tit. 19 §§ 39-05, 39-07, 39-10(d). Once a
default judgment is entered, a party may reopen it “only
upon written application showing excusable neglect and a
substantial defense to the charge.” Id. § 39-10(i). After a party
is found guilty of a parking violation, she may appeal to the
PVB Appeals Board. See VTL § 242; N.Y.C. Rules & Regs.
tit. 19 § 39-12(a), (b)(2). Finally, a party may challenge an
adverse decision by the Appeals Board in New York State
Supreme Court, by petitioning under Article 78 of the N.Y.
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C.P.L.R. (“CPLR”). See VTL § 243; N.Y.C. Admin. Code §
19-209.
If the owner of a vehicle owes more than $350 in judgments,
the City may tow and impound her vehicle to satisfy
those outstanding judgments. See N.Y.C. Admin. Code §
19-212; N.Y.C. Rules & Regs. tit. 34 § 4-08(a)(9). In
that case, the owner may be held liable for towing and
storage fees associated with the impoundment. See CPLR §
8013(c); 3 N.Y.C. Rules & Regs. tit. 34 § 4-08(a)(9)(iii)–(vii)
(authorizing, among other things, $185 removal fee and $20-
per-day storage fee).
Tsinberg spent most of 2018 temporarily living and working
in Pennsylvania, where he ran a business out of the
Philadelphia International Airport. FAC ¶ 1. During that time,
he left the Vehicle parked in the Riverdale neighborhood of
the Bronx, where it amassed 11 tickets, five of which are
relevant here. Id. ¶¶ 1–2; Dkt. 22-3; Dkt. 26 (“Koplik Decl.”),
Ex. A. 4 The first of those five tickets was for displaying an
expired inspection sticker; the other four were for displaying
an expired registration sticker. See Dkt. 22-3; Koplik Decl.,
Exs. D–H. Each was issued on a different day between April
and October 2018. After Tsinberg failed to respond to them,
the City entered a default judgment on each about three
months after issuance. See Koplik Decl., Exs. D–H; Report
at 6–7. Each ticket was originally $65, or $325 total, but,
after penalties associated with Tsinberg's failure to plead to or
contest the tickets accrued, the total amount owed on the five
tickets rose to over $600. FAC ¶ 34; Report at 6–7.
In January 2019, Tsinberg discovered the tickets and
the default judgments against him. FAC ¶ 3. He then
sought to vacate three of the default judgments by filing
disputes through the City's “Pay or Dispute” application and
submitting an image of his current, unexpired registration.
See FAC ¶ 11; Koplik Decl., Exs. D–F. Each application
was denied by an ALJ because his application did not show
a legally sufficient reason for his failure to respond to the
summons, and his proof of current registration did not refute
that his car had displayed an expired registration when each
summons was issued. See Koplik Decl., Exs. D–F.
On January 29, 2019, the City placed an immobilizing
“boot” on the Vehicle. FAC ¶ 14. The City affixed a notice
to the Vehicle, which provided a telephone number and
five physical addresses at which Tsinberg could pay the
outstanding judgments. Dkt. 22-4 (“Booting Notice”). The
City also affixed an execution to the Vehicle, which stated
that the state of New York, or one of its subdivisions, was
the judgment creditor, “and/or the debt enforced is for child
support, spousal support, maintenance or alimony.” FAC ¶
7; Dkt. 22-2 (“Execution”). The same day, Tsinberg filed an
order to show cause (“OTSC”) in New York State Supreme
Court, seeking to commence an Article 78 proceeding and to
obtain a temporary restraining order (“TRO”) to prevent the
towing of his Vehicle. FAC ¶¶ 5, 8; Dkt. 22-9. He tried to serve
the City with the OTSC at two the addresses provided on the
Booting Notice, but neither office would accept service. FAC
¶ 10.
*3 On January 30, 2019, the City towed the Vehicle. Id. ¶
12. On February 15, 2019, the City placed an “indefinite sales
hold” on the Vehicle—meaning that the Vehicle would not be
auctioned to satisfy Tsinberg's unpaid judgments—given the
pending Article 78 petition. See id. ¶¶ 22, 36; Koplik Decl.,
Ex. R. The Vehicle remains in City storage and has accrued
thousands of dollars in storage fees. Reply at 7 n.5 (as of July
28, 2020, total outstanding judgments were $10,397.72). On
June 25, 2019, the New York State Supreme Court dismissed
Tsinberg's Article 78 petition because he had failed to serve
or file any complaint or petition in the matter and to exhaust
administrative appeals. Koplik Decl., Ex. Q.
B. Procedural History
On January 28, 2020, Tsinberg filed a Complaint. Dkt. 2.
On May 7, 2020, the City moved to dismiss. Dkts. 15–17.
On June 18, 2020, Tsinberg filed the FAC. On August 3,
2020, the City moved to dismiss the FAC, Dkt. 25, and
filed a memorandum of law in support, City Mem., and the
declaration of Pamela A. Koplik, Esq., see Koplik Decl. On
August 4, 2020, the Court referred that motion to Judge
Cave for a report and recommendation. Dkt. 29. On August
18, 2020, Tsinberg opposed the City's motion. Dkt. 31 (“Pl.
Opp'n”). On September 8, 2020, the City replied. See Reply.
While the motion to dismiss was pending, Tsinberg sought
“preliminary discovery” from the City; the City moved to
stay discovery pending a ruling on its motion to dismiss. See
Dkt. 43 at 1. On November 19, 2020, Judge Cave granted
the City's motion to stay, with an exception for the exchange
of five narrow categories of information, largely relating to
the circumstances surrounding the seizure and storage of the
Vehicle. Id. at 2–3.
On January 22, 2021, Judge Cave issued the Report, which
recommends the dismissal of the FAC with prejudice and
without leave to amend. See Report at 1, 35. On February
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15, 2021, Tsinberg filed objections to the Report. Dkt. 51
(“Objections”). On March 15, 2021, the City responded. Dkt.
54 (“Response”).
II. Legal Standard
A. Report and Recommendation
In reviewing a Report and Recommendation, a district court
“may accept, reject, or modify, in whole or in part, the
findings or recommendations made by the magistrate judge.”
28 U.S.C. § 636(b)(1)(C). When specific objections are made,
“[t]he district judge must determine de novo any part of the
magistrate judge's disposition that has been properly objected
to.” Fed. R. Civ. P. 72(b)(3); United States v. Male Juvenile,
121 F.3d 34, 38 (2d Cir. 1997). To accept those portions of the
report to which no timely objection has been made, “a district
court need only satisfy itself that there is no clear error on the
face of the record.” King v. Greiner, No. 02 Civ. 5810 (DLC),
2009 WL 2001439, at *4 (S.D.N.Y. July 8, 2009) (citing Wilds
v UPS, 262 F. Supp. 2d 163, 169 (S.D.N.Y. 2003)); see also
Edwards v. Fischer, 414 F. Supp. 2d 342, 346–47 (S.D.N.Y.
2006).
To the extent that the objecting party makes only
conclusory or general objections, or simply reiterates the
original arguments, the Court will review the report and
recommendation strictly for clear error. See Dickerson v.
Conway, No. 08 Civ. 8024 (PAE), 2013 WL 3199094, at *1
(S.D.N.Y. June 25, 2013); Kozlowski v. Hulihan, Nos. 09 Civ.
7583, 10 Civ. 0812 (RJH), 2012 WL 383667, at *3 (S.D.N.Y.
Feb. 7, 2012).
B. Motion to Dismiss Pursuant to Rule 12(b)(6)
To survive a motion to dismiss under Rule 12(b)(6), a
complaint must plead “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 will only have “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). A complaint is properly
dismissed where, as a matter of law, “the allegations in
a complaint, however true, could not raise a claim of
entitlement to relief.” Twombly, 550 U.S. at 558. Although
the court must accept as true all well-pled factual allegations
in the complaint and draw all reasonable inferences in the
plaintiff's favor, Steginsky v. Xcelera Inc., 741 F.3d 365,
368 (2d Cir. 2014), that tenet “is inapplicable to legal
conclusions,” Iqbal, 556 U.S. at 678.
*4 Where, as here, the plaintiff is pro se, his complaint must
be construed “liberally, reading it with special solicitude and
interpreting it to raise the strongest claims that it suggests.”
J.S. v. T'Kach, 714 F.3d 99, 103 (2d Cir. 2013) (quoting
Harris v. City of New York, 607 F.3d 18, 24 (2d Cir. 2010)).
This mandate “applies with particular force when a plaintiff's
civil rights are at issue.” Maisonet v. Metro. Hosp. & Health
Hosp. Corp., 640 F. Supp. 2d 345, 348 (S.D.N.Y. 2009).
Consistent with that approach, factual allegations made in a
pro se plaintiff's opposition papers, or the attachments thereto,
may be considered “as supplementing the Complaint, at least
to the extent they are consistent with the allegations in the
Complaint.” George, 2012 WL 2512964, at *6 n.7.
However, pro se status “does not exempt a party from
compliance with relevant rules of procedural and substantive
law.” Maisonet, 640 F. Supp. 2d at 348 (citation omitted).
Thus, even a pro se plaintiff “must state a plausible claim for
relief.” Walker v. Schult, 717 F.3d 119, 124 (2d Cir. 2013).
The Court need not accept allegations that are “contradicted
by other matters asserted or relied upon or incorporated by
reference by a plaintiff in drafting the complaint.” Fisk v.
Letterman, 401 F. Supp. 2d 362, 368 (S.D.N.Y. 2005).
III. Discussion
The Report recommends dismissal of Tsinberg's entire case
for failure to state a claim. In many respects, Tsinberg's
objections do not engage with any specific aspects of the
thoughtful and well-reasoned Report, but reprise, through 35
“claims” spanning nearly 50 pages, general assertions about
the sufficiency of the FAC's allegations and principles of
constitutional law. Thus, as to much of the Report, review
for clear error would be appropriate. See Dickerson, 2013
WL 3199094, at *1. Nevertheless, for the avoidance of doubt,
in the interest of thoroughness, and given Tsinberg's pro se
status, the Court will review the entire Report de novo.
The Court addresses Tsinberg's claims in the following order:
(1) Fourteenth Amendment Due Process Clause claims;
(2) Fifth Amendment Double Jeopardy Clause claim; (3)
Eighth Amendment Excessive Fines Clause claim; (4) Fourth
Amendment claim; (5) municipal liability claim; (6) Fair
Debt Collection Practices Act claim; and (6) state-law claims.
Finally, the Court addresses Tsinberg's request for leave to
amend the FAC.
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A. Due Process Clause
1. Procedural Due Process
Tsinberg claims that the City's ticketing and towing of his
car violated his rights to procedural due process because he
received insufficient notice of the tickets, because the dispute
mechanism provided by the “Pay or Dispute” application was
inadequate, and because his Article 78 proceeding failed to
provide adequate post-deprivation remedies. See FAC ¶¶ 48–
61; Pl. Opp'n ¶¶ 1–11, 18–20.
The Court agrees with the Report that Tsinberg has failed
to allege a violation of his rights to procedural due process.
Before depriving a person of a liberty or property interest, the
state, consistent with due process of law, must use procedures
that balance the interests involved in the deprivation. “The
essence of due process is the requirement that ‘a person in
jeopardy of serious loss (be given) notice of the case against
him and opportunity to meet it.’ ” Mathews v. Eldridge,
424 U.S. 319, 348–49 (1976) (quoting Joint Anti-Fascist
Refugee Comm. v. McGrath, 341 U.S. 123, 171–72 (1951)
(Frankfurter, J., concurring)). The interests to be balanced are:
(1) “the private interest that will be affected by the official
action”; (2) “the risk of an erroneous deprivation of such
interest through the procedures used, and the probable value,
if any, of additional or substitute procedural safeguards”;
and (3) “the Government's interest, including the function
involved and the fiscal and administrative burdens that the
additional or substitute procedural requirement would entail.”
Id. at 335.
*5 “Courts in this Circuit have found that, as a general
matter, the PVB/Article 78 review process for challenging
parking summonses meets the requirements of procedural due
process.” Nestle Waters N. Am., Inc. v. City of New York, No.
15 Civ. 5189 (ALC), 2016 WL 3080722, at *8 (S.D.N.Y. May
25, 2016) (collecting cases), aff'd, 689 F. App'x 87 (2d Cir.
2017) (summary order); see Schaer, 2011 WL 1239836, at
*9 (“The City's administrative parking violations system has
been held to be constitutional.”) (collecting cases); Rackley v.
City of New York, 186 F. Supp. 2d 466, 480 (S.D.N.Y. 2002)
(The City “provide[s] parking violators ... with more than
sufficient process to satisfy the Constitution.”). To plausibly
allege a procedural due process violation, therefore, Tsinberg
must allege some departure from that constitutionally “more
than sufficient” process.
Tsinberg has failed to do so. First, he alleges that the City's
service of parking summonses by affixing them to his car
and mailing them to him was insufficient. That is because he
alleges that he failed to receive actual notice of the tickets
and, because he lived in Philadelphia at the time, the City
should have either called or emailed him to give him such
notice before the judgments against him were entered. See
FAC ¶¶ 48–49; Objections at 17, 20–21. But the method of
service the City employed here is prescribed by the statutes
above, and courts have repeatedly held it to be constitutional.
See VTL § 238(2); e.g., Nestle Waters, 2016 WL 3080722,
at *8. Nor was the City obliged to anticipate that Tsinberg
might have been out of state for several months, and to
depart from its statutorily prescribed method of service to
accommodate that absence. Further, as the Report notes,
Tsinberg did receive actual notice of the default judgments
against him, as evidenced by his challenges thereto, and had
both the chance to contest them before the City towed and
impounded his Vehicle several weeks later, and to pay them
while his Vehicle continued to accumulate storage costs. See
Report at 19.
Second, Tsinberg alleges that the procedures through which
he tried to vacate the default judgments against him were
deficient because the “Pay or Dispute” application is flawed
in unspecified ways. See FAC ¶¶ 48–51; Pl. Opp'n ¶ 10. To the
extent that Tsinberg alleges that the City obtained judgments
against him through “adjudication via app,” that is wrong.
As the Report notes, the default judgments were entered in
the usual course, and Tsinberg merely tried to vacate them
through the “Pay or Dispute” application. See Report at 18–
19. As to the latter process, Tsinberg was never required to use
that method of contesting the judgments—he remained free
at all times to file his disputes by mail or in person. See City
Reply at 3 n.1. His decision to do so, absent any allegation
that other such options were unavailable, cannot support a
plausible claim for any deprivation of procedural due process.
Third, Tsinberg alleges that, while Article 78 proceedings
may, in some cases, provide adequate post-deprivation
protections against arbitrary government action, here that was
not so because the New York Supreme Court's dismissal
of his Article 78 proceeding for failure to serve, failure to
file a petition, and failure to exhaust administrative remedies
was “merely on a Temporary Restraining Order,” and not a
“valid, final judgment on the merits.” FAC ¶ 55. He also
argues that, because the Booting Notice did not provide
him with the proper address for service of an Article 78
petition on the City, he was denied procedural due process.
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Pl. Opp'n ¶¶ 7–9; Objections at 6–7, 9–11, 15–17. As to the
first point, Tsinberg's decision to seek a TRO rather than
commence an Article 78 proceeding, as well as his failure to
serve or file any attending petition or exhaust administrative
remedies, resulted from his own decisions, not any procedural
impediments erected by the City. See Koplik Decl., Ex.
Q. Those decisions do not affect the availability of Article
78 proceedings as a sound, post-deprivation guard against
erroneous deprivations. “The fact that [a plaintiff] failed
properly to pursue the state court action, and that it is now too
late to do so, does not affect [the] due process analysis. Where
a state law remedy gives a party a meaningful opportunity to
challenge the state's action, he is not deprived of due process
simply because he failed to avail himself of the opportunity.”
Nestle Waters, 2016 WL 3080722, at *10 (quoting Rivera-
Powell v. N.Y.C. Bd. of Elections, 740 F.3d 458, 467 n.9 (2d
Cir. 2006)); see Schaer, 2011 WL 1239836, at *9 (“[T]he
Second Circuit has ‘held on numerous occasions that an
Article 78 proceeding is a perfectly adequate postdeprivation
remedy[.]’ ” (quoting Hellenic Am. Neighborhood Action
Comm. v. City of New York, 985 F.2d 90, 93 (2d Cir. 1996))). 5
As to the second, Tsinberg does not provide any authority
for the notion that the City deprived him of due process by
failing to provide, on the Booting Notice, the proper address
for service of a TRO, rather than the proper address at which
to pay his tickets.
*6 The Court thus agrees with the Report that the FAC fails
to plausibly allege any procedural due process violation. 6
2. Substantive Due Process
Although the FAC did not do so expressly, the Report
also construed it to assert a substantive due process claim,
but found such claim to be deficient. The Court agrees
with that assessment. To violate Tsinberg's substantive due
process rights, the City's actions “must have occurred
under circumstances warranting the labels ‘arbitrary’ and
‘outrageous.’ ” Schaer, 2011 WL 1239836, at *6 (quoting
County of Sacramento v. Lewis, 523 U.S. 833, 845 (1998)).
“Only conduct that ‘shocks the conscience’ qualif[ies] as even
potentially violative of plaintiffs’ substantive due process
rights.” Id. (quoting Natale v. Town of Ridgefield, 170 F.3d
258, 263 (2d Cir. 1999)). Upon de novo review, the Court
agrees with, and adopts in full, the Report's conclusion that
the City's ticketing and towing of Tsinberg's car—all under
established and oft-approved state and local law—does not
approach this threshold. See Report at 23–24. 7 Tsinberg's
claim for violation of his substantive due process rights is also
dismissed.
B. Double Jeopardy
Tsinberg next claims that the issuance of several tickets for
the same alleged failure to display an unexpired registration
sticker subjected him to double jeopardy, in violation of the
Fifth Amendment. See FAC ¶ 45. The Report recommends
dismissing this claim because the Double Jeopardy Clause
applies only to criminal proceedings, and Tsinberg has failed
to adequately allege that the parking sanctions imposed on
him were “so punitive in form and effect as to render them
criminal despite [the legislature's] intent to the contrary.”
Report at 25–26 (quoting Doe v. Pataki, 120 F.3d 1263, 1274
(2d Cir. 1997)).
*7 Again, the Court agrees with that assessment. The Double
Jeopardy Clause protects an individual's right not to be
“subject for the same offense to be twice put in jeopardy of
life or limb.” U.S. Const. amend. V, cl. 2. The Supreme Court
has held that the “Clause protects only against the imposition
of multiple criminal punishments for the same offense,” and
does not apply to civil penalties. Hudson v. United States,
522 U.S. 93, 99 (1997). To decide whether a sanction is
criminal or criminal, courts apply a two-part test. First, courts
consider whether the legislative intent behind the law was
punitive: If the intent was “ ‘not to punish, but to accomplish
some other legitimate governmental purpose,’ then it has been
considered ‘nonpenal.’ ” Doe, 120 F.3d at 1273. Second, even
where a law was not designed to be punitive, courts then
must determine whether it is “so punitive either in purpose
or effect” that the sanction at issue is “transform[ed] into a
criminal penalty.” United States v. Ward, 448 U.S. 242, 248–
49 (1980). The Supreme Court “has not spelled out the precise
nature of the second-stage inquiry,” Doe, 120 F.3d at 1275,
but has identified several non-exclusive and non-dispositive
factors that may guide it, see Kennedy v. Mendoza-Martinez,
372 U.S. 144, 168–69 (1963) (identifying, inter alia, whether
the sanction imposes an affirmative disability or restraint, has
historically been considered punishment, and depends on a
finding of scienter). At this second stage of the inquiry, the
burden is on the party challenging a law to “show by ‘the
clearest proof’ that the sanctions imposed ‘are so punitive
in form and effect as to render them criminal despite [the
legislature's] intent to the contrary.’ ” Doe, 120 F.3d at 1274
(quoting United States v. Ursery, 518 U.S. 267, 290 (1996)).
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Here, Tsinberg addresses only the second inquiry, arguing that
the collective amount of fines and fees, including storage fees,
imposed on him provide “the clearest proof” that the parking
sanctions at issue are in fact criminal. See Objections at 32–
35. The Court disagrees. As the Report cogently explains, the
City's parking procedures, including seeking recoupment of
storage costs occasioned by the impoundment of delinquent
vehicles, serve legitimate, important non-punitive interests.
See Report at 24, 26 (collecting cases). And Tsinberg does
not explain how the accumulation of fines and storage costs,
resulting from his own failure to pay the original penalties,
can convert otherwise civil sanctions into criminal ones.
Indeed, as the Report notes, such a result would be surprising
given the substantial New York state authority holding that
parking and traffic sanctions are civil, not criminal. See Dubin
v. County of Nassau, 277 F. Supp. 3d 366, 400 (E.D.N.Y.
2017) (noting that “such a claim would not be plausible
given the weight of New York legal authority holding that
penalties for traffic infractions are civil and not criminal”
and collecting cases). The imposition of parking tickets, and
resulting penalties for non-payment, thus is not a criminal
punishment to which the Double Jeopardy Clause applies.
The Court adopts the Report's recommendation and dismisses
Tsinberg's double jeopardy claim.
C. Excessive Fines
Next, Tsinberg alleges that the magnitude of the civil
penalties that have accrued on the parking tickets at issue are
impermissible under the Eighth Amendment's prohibition on
excessive fines. In support, he argues that, while the $65 fines
originally imposed may not be excessive, the accumulation
of “fines on fines,” including tow, boot, and storage fees,
is unconstitutional, and tantamount to “criminal usury.” See
FAC ¶¶ 32–44, 69; Pl. Opp'n ¶¶ 21–27; Objections at 36–40.
The Report recommends dismissal of this claim because, even
if the Excessive Fines Clause applies here, the fines are not
disproportionately excessive. See Report at 26–30. The Court
agrees with the Report's assessment.
The Second Circuit has established a “two-step inquiry
for determining 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
“determine whether the Excessive Fines Clause applies at
all,” i.e., whether the forfeiture at issue “may be characterized,
at least in part, as ‘punitive.’ ” Id. at 109. Second, a
court must “determine whether the challenged forfeiture is
unconstitutionally excessive.” Id. A fine is constitutionally
excessive “if it is grossly disproportional to the gravity of a
defendant's offense.” Id. (quoting United States v. Bajakajian,
524 U.S. 321, 334 (1998)).
*8 Here, the parties and the Report focus only on the second
question, assuming that the Excessive Fines Clause applies
in the first instance. The Court therefore assumes without
deciding that the Clause applies to the routine application of
the City's parking and traffic laws in cases like Tsinberg's. 8
As to the second factor, the Second Circuit has set forth a four-
factor test governing the inquiry:
(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.
Viloski, 814 F.3d at 109 (quoting United States v. George, 779
F.3d 113, 122 (2d Cir. 2015)). Courts may also consider, along
with those four factors, “whether the forfeiture would deprive
the defendant of his livelihood.” Id. at 111. In undertaking this
analysis, the Supreme Court has admonished that “judgments
about the appropriate punishment for an offense belong in
the first instance to the legislature.” Bajakajian, 524 U.S. at
336; see id. (courts “should grant substantial deference” to the
legislature (citation omitted)).
The Court agrees that Tsinberg has failed to plausibly
allege that the fines at issue are “grossly disproportional”
to Tsinberg's offenses. Tsinberg does not argue that the $65
parking fines were excessive. See, e.g., FAC ¶ 36; Pl. Opp'n
¶ 11. 9 Instead, he contends that the fines he accrued for
failing to address the five $65 tickets, and the resulting
fees associated with booting, towing, and storing his Vehicle
collectively became disproportionate. See, e.g., Objections
at 38–40. Whereas Tsinberg was ticketed $65 per original
ticket, or $325 total, those penalties increased to about $640,
or another $63 per ticket, after he failed to respond to or
pay those tickets. See FAC ¶ 34; Koplik Decl., Exs. D–
H; Dkt. 22-3. As to the first factor, Tsinberg's offense is
the accumulation and failure to resolve several duly issued
parking tickets, for which, as several ALJs held, he did not
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provide any legitimate excuse. See Koplik Decl., Exs. D–F.
Beyond the five tickets directly at issue here—which Tsinberg
still has not paid—he also accrued at least six others in a
similar period, for a variety of offenses. See Dkt. 22-3. Thus,
while negligent or reckless parking violations themselves
may not entail a great degree of moral culpability, see George,
779 F.3d at 123, Tsinberg's sustained refusal to lawfully
address them, well after he undisputedly received notice of
them, weighs in the City's favor. As a result, Tsinberg is
squarely a member of the “class of persons for whom” such
enhanced penalties were principally designed. Viloski, 814
F.3d at 109. Without the prospect of escalating fines, violators
like Tsinberg would have little reason ever to pay their tickets
to the City. The third factor, as to whether the maximum
fine was imposed, does not fit well into the parking-ticket
context, where there appears to be little discretion over
the degree of any given penalty. Cf. Viloski, 814 F.3d at
109 (discussing imposition of sentence and fine within the
context of the criminal Sentencing Guidelines and statutory
maximum penalties). Thus, the Court gives it little weight
in the analysis. Last, although when Tsinberg's experience is
viewed in isolation, his non-payment of five $65 tickets may
not have meaningfully harmed the City of New York, the City
must process an “overwhelming volume of alleged parking
violations.” C.A.U.T.I.O.N., Ltd. v. City of New York, 898 F.
Supp. 1065, 1067 (S.D.N.Y. 1995). Without the ability to
enforce timely compliance by scofflaws who might otherwise
be disinclined to pay up, it would likely suffer substantial
financial harms. The City also has a separate, if less tangible,
interest in promoting compliance with its laws, which is
undermined even by small-scale disregard like that here.
*9 Considering the above factors, Tsinberg has not plausibly
alleged anything close to a gross disproportion between his
offense and the penalties, totaling $315, for his failure to
address his many parking tickets. That conclusion accords
with the assessment of various other courts to have considered
the issue. See, e.g., Shibeshi v. City of New York, No. 11 Civ.
4449 (LAP), 2011 WL 13176091, at *2 (S.D.N.Y. Sept. 21,
2011) (“[Plaintiff's] fines totaling $515.16 for four tickets,
plus additional fees, are not disproportional.”), aff'd, 475 F.
App'x 807 (2d Cir. 2012) (summary order); Wemhoff v. City
of Baltimore, 591 F. Supp. 2d 804, 808–09 (D. Md. 2008);
Popescu v. City of San Diego, No. 06 Civ. 1577 (LAB), 2008
WL 220281, at *4 (S.D. Cal. Jan. 25, 2008) (penalty's increase
from $47 to $104 upon nonpayment not excessive). 10
The same is true of Tsinberg's claim that the City's booting,
towing, and impounding of his car, and that the resulting
accrual of fees, were excessive. Courts have approved the
towing and auctioning of vehicles to satisfy municipal
judgments, as state law specifically authorizes. See, e.g.,
Berger v. Phila. Parking Auth., 413 F. Supp. 3d 412, 420
(E.D. Pa. 2019) (denying Eighth Amendment Excessive Fines
claim under Timbs for towing and impoundment of vehicle
for failure to pay parking tickets); see also Rackley, 186 F.
Supp. 2d at 469–85 (same under Fourth Amendment and Due
Process Clause). Although the value of the car was, at the time
of its towing, substantially greater than the amount Tsinberg
owed, he remained free at all times to recover the Vehicle
by paying the City what he owes it. And even if the City
auctions his car to satisfy the judgments at issue, Tsinberg
would then have a right to receive any sale proceeds above the
outstanding judgments and fees at the time of sale. See CPLR
§ 5234(a). Finally, as to the booting, towing, and storage fees
associated with the Vehicle—including the mandatory $20
daily storage fee that has been amassing since January 2019
as a result of Tsinberg's refusal to pay his debts to the City, see
N.Y.C. Rules & Regs. tit. 34 § 4-08(a)(9)(vii)—Tsinberg fails
to explain, except in conclusory terms, why those essentially
compensatory fees are unconstitutional. See, e.g., Potter v.
City of Lacey, No. 20 Civ. 05925 (RJB), 2021 WL 915138,
at *1 (W.D. Wash. Mar. 10, 2021) (impoundment fees not
excessive because “they can reflect the costs associated with
towing and storage”); see Objections at 38–40. Accordingly,
the Court adopts in full the Report's recommendation that
Tsinberg's Eighth Amendment claim, too, be dismissed for
failure to state a claim.
D. Fourth Amendment
Tsinberg also asserts a Fourth Amendment claim related to the
towing of the Vehicle, arguing that such towing constituted
an unreasonable seizure. See FAC ¶¶ 62–67. Specifically, he
claims that the City booted and towed his Vehicle “through
an automated system ... without an independent review of the
underlying facts and circumstances ... by a judge.” Id. ¶ 65.
He also asserts that the inclusion of language regarding child
support, spousal support, or alimony on the Execution makes
the seizure even more unreasonable. See id.; Execution. The
Report recommends dismissal of this claim, which the Court
adopts.
*10 The Fourth Amendment guarantees that “[t]he right
of the people to be secure in their persons, houses, papers,
and effects, against unreasonable searches and seizures, shall
not be violated....” U.S. Const. amend. IV. By virtue of
its incorporation through the Fourteenth Amendment's Due
Process Clause, the Fourth Amendment is binding on states
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and, relevant here, municipalities such as New York City. See
City of Ontario v. Quon, 560 U.S. 746, 750 (2010). It “applies
in the civil context as well” as the criminal. See, e.g., Soldal
v. Cook County, 506 U.S. 56, 57 (1992) (collecting cases).
A seizure of property occurs when “there is some meaningful
interference with an individual's possessory interests in that
property.” United States v. Iverson, 897 F.3d 450, 458 (2d
Cir. 2018) (quoting United States v. Jacobson, 466 U.S.
109, 113 (1984)). The reasonableness of a seizure is the
“ultimate standard under the Fourth Amendment.” Soldal,
506 U.S. at 61 (citation omitted). The permissibility of
any governmental seizure is thus “judged by balancing its
intrusion on the individual's Fourth Amendment interests
against its promotion of legitimate governmental interests.”
Delaware v. Prouse, 440 U.S. 648, 654 (1979).
Tsinberg has failed to plausibly allege that any seizure of
his Vehicle was unreasonable. It is undisputed that the City
seized Tsinberg's Vehicle based on valid judgments entered
against him pursuant to state and local law, and that the
seizure was authorized by statute given those outstanding
judgments. See N.Y.C. Admin. Code § 19-212 (allowing
towing of vehicle for which outstanding judgments exceed
$350); see also VTL § 237(5) (empowering PVB to “enter
judgments and enforce them, without court proceedings, in
the same manner as the enforcement of money judgments in
civil actions in any court of competent jurisdiction or any
other place provided for the entry of civil judgment within
the state of New York”); FAC ¶ 34 (alleging that $640.59
in fines “caused NYC Admin. Code § 19-212 to trigger this
seizure of the property”). Courts have held that the towing
and impoundment of vehicles in similar circumstances is
reasonable under the Fourth Amendment. See, e.g., Shibeshi,
2011 WL 13176091, at *2 (“The City's warrantless seizure
of a person's vehicle from a public street due to that person's
failure to pay parking ticket fines has been held not to
violate the Fourth Amendment in that it is a reasonable
seizure, does not implicate core privacy concerns requiring
a warrant and, of itself, demonstrates probable cause.”); Yu
Juan Sheng v. City of New York, No. 05 Civ. 1118 (RRM)
(VVP), 2009 WL 6871132, at *8 (E.D.N.Y. June 26, 2009)
(approving towing and impoundment resulting from default
judgments on parking tickets), report and recommendation
adopted, 2010 WL 3744428 (E.D.N.Y. Sept. 20, 2010);
Rackley, 186 F. Supp. 2d at 478–79 (same even where City
officials erroneously calculated amounts owed to City on
multiple dates). Tsinberg does not offer any countervailing
authority, or explain why the underlying tickets arising from
the same expired registration makes the ultimate seizure,
which undisputedly complied with N.Y.C. Admin. Code §
19-212, unreasonable. See FAC ¶ 65. 11 The Court therefore
also adopts the Report's recommendation on this point and
dismisses Tsinberg's Fourth Amendment claim.
E. Monell Liability
*11 Having dismissed each of Tsinberg's § 1983 claims,
the Court holds, with the Report, that dismissal of Tsinberg's
claim for municipal liability against the City is required as
well. A plaintiff cannot establish municipal liability under §
1983 based on a theory of respondeat superior. Instead, to
hold a municipality liable for its employees’ unconstitutional
actions, a plaintiff must establish a municipal policy or
custom that directly caused the plaintiff to be subjected to
a constitutional violation. Monell v. Dep't of Soc. Servs.,
436 U.S. 658, 691 (1978); Wray v. City of New York, 490
F.3d 189, 195 (2d Cir. 2007); see City of Canton v. Harris,
489 U.S. 378, 385 (1989) (the “first inquiry in any case
alleging municipal liability under § 1983 is the question
whether there is a direct causal link between a municipal
policy or custom and the alleged constitutional deprivation”).
Because Monell liability merely extends liability for an
underlying constitutional violation to a municipality, without
a predicate violation, the Court need not address whether
the municipality itself can be liable for such violation. See,
e.g., Segal v. City of New York, 459 F.3d 207, 219 (2d
Cir. 2006) (“Because the district court properly found no
underlying constitutional violation, its decision not to address
the municipal defendants’ liability under Monell was entirely
correct.”); see also Salem v. City of New York, 811 F. App'x
678, 683 (2d Cir. 2020) (summary order) (dismissal of Monell
claim appropriate where plaintiff had “not plausibly pled any
underlying constitutional violation that survives a motion to
dismiss”). Here, with the Court's having held that Tsinberg
failed to state a claim for any underlying constitutional
violation under § 1983, there is no basis to extend any such
liability to the City based on an alleged custom, policy, or
widespread usage of the City. Tsinberg's Monell claim is
therefore dismissed.
F. Fair Debt Collection Practices Act
Tsinberg next asserts that the City's actions violated the Fair
Debt Collection Practice Act (“FDCPA”), 15 U.S.C. § 1962 et
seq. He alleges that the Execution's reference to child support
or alimony, as a potential ground for seizure of the Vehicle,
was false and harassing under that statute. See FAC ¶¶ 62–
63; Pl. Opp'n ¶¶ 28–29; Objections at 40. As the Report
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correctly concluded, that claim fails for at least two reasons.
First, the FDCPA does not apply to actions taken by municipal
employees, and Tsinberg alleges only that the City of New
York, through its employees, affixed the Execution notice to
his Vehicle. See 15 U.S.C. § 1962a(6)(C) (excluding from
definition of “debt collector” any “officer or employee of ...
any state”), (8) (defining “state” to include “any political
subdivision” thereof). Second, the FDCPA “does not extend
to creditors seeking to collect on debts owed to themselves.”
Muniz v. Bank of Am., N.A., No. 11 Civ. 8296 (PAE), 2012
WL 2878120, at *3 (S.D.N.Y. July 13, 2012) (collecting
cases). Here, the City's Execution was issued and posted in
connection with its attempts to collect debts Tsinberg owed to
the City, not to any other person. The Court thus adopts the
Report in full in dismissing Tsinberg's claim for a violation
of the FDCPA.
G. State-Law Claims
Finally, Tsinberg brings claims under state law for conversion,
trespass to chattels, and defamation. FAC ¶¶ 68–71. The
Report recommends that the Court decline to exercise
supplemental jurisdiction over these claims given the Court's
dismissal of Tsinberg's federal causes of action. The Court
agrees. “District courts may decline to exercise supplemental
jurisdiction over a claim ... if ... the district court has dismissed
all claims over which it has original jurisdiction.” 28 U.S.C.
§ 1367(c)(3). “[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.” Pension Ben. Guar. Corp. v.
Morgan Stanley Inv. Mgmt. Inc., 712 F.3d 705, 727 (2d
Cir. 2013) (citation omitted); Spiegel v. Schulmann, 604
F.3d 72, 83 (2d Cir. 2010) (“[T]he district court may also
decide whether to exercise supplemental jurisdiction over
this claim; it may determine that this area of law would
benefit from further development in the state courts and
therefore dismiss the claim without prejudice to refiling in
state court.”); Marcus v. AT&T Corp., 138 F.3d 46, 57 (2d Cir.
1998) (“In general, where the federal claims are dismissed
before trial, the state claims should be dismissed as well.”).
Having dismissed all federal claims over which the Court had
original jurisdiction before meaningful discovery has taken
place, and far before trial, the Court dismisses Tsinberg's
state-law claims, too, without prejudice to his pursuit of those
claims in state court.
H. Leave to Replead
*12 Last, the Report recommends that Tsinberg not be
granted leave to file another amended complaint, and that
his claims instead be dismissed with prejudice given the
substantive deficiencies in his allegations and his earlier
opportunity to amend his complaint after the City moved to
dismiss it. Report at 34–35. Tsinberg, in his Objections (but
not in his opposition), sought leave to file another amended
complaint, after further discovery, to remedy any deficiencies
in the FAC. See Objections at 48. He does not, however,
identify any specific facts that, if pled, could salvage any of
his claims. See id.
Pro se complaints should generally be given leave to amend
when there is “any indication that a valid claim might be
stated.” Thompson v. Carter, 284 F.3d 411, 416 (2d Cir. 2002)
(citation omitted); see Grullon v. City of New Haven, 720 F.3d
133, 140 (2d Cir. 2013). But a district court has discretion
to deny leave if a revised claim still “could not withstand
a motion to dismiss.” Dougherty v. Town of N. Hempstead
Bd. of Zoning Appeals, 282 F.3d 83, 88 (2d Cir. 2002). If
the problems with a pro se plaintiff's claim are “substantive,”
rather than the result of an “inadequately or inartfully
pleaded” complaint, an opportunity to replead would be
“futile” and “should be denied.” Cuoco v. Moritsugu, 222
F.3d 99, 112 (2d Cir. 2000). Thus, “[i]n the absence of any
identification of how a further amendment would improve
upon the Complaint, leave to amend must be denied as futile.”
In re WorldCom, Inc. Sec. Litig., 303 F. Supp. 2d 385, 391
(S.D.N.Y. 2004); see also, e.g., Cuoco, 222 F.3d at 112 (courts
should generally grant a pro se plaintiff “leave to amend
at least once when a liberal reading of the complaint gives
any indication that a valid claim might be stated”); Panther
Partners Inc. v. Ikanos Commc'ns, Inc., 347 F. App'x 617, 622
(2d Cir. 2009) (summary order) (“Granting leave to amend is
futile if it appears that plaintiff cannot address the deficiencies
identified by the court and allege facts sufficient to support
the claim.”).
The Court agrees with the recommendation in the Report
and will dismiss Tsinberg's claims without leave to amend,
and with prejudice. Tsinberg already had one opportunity to
amend his complaint, and did so after reviewing the City's
arguments, in its first motion to dismiss, explaining why
his pleading failed to state a claim. See, e.g., TechnoMarine
SA v. Giftports, Inc., 758 F.3d 493, 506 (2d Cir. 2014)
(upholding dismissal of amended complaint with prejudice
where, “following Defendant's first motion to dismiss for
failure to state a claim,” plaintiff had already amended its
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complaint once and failed to “resolve its pleading deficiencies
in its First Amended Complaint”); Green v. Niles, No. 11
Civ. 1349 (PAE), 2012 WL 987473, at *7 (S.D.N.Y. Mar. 23,
2012). Further, the Court agrees with the Report's assessment
that the FAC's substantive deficiencies are such that a third
attempt to state a viable claim would be futile. See, e.g.,
Binn v. Bernstein, No. 19 Civ. 6122 (GHW) (SLC), 2020 WL
4550312, at *34 (S.D.N. Y July 13, 2020) (collecting cases
denying plaintiffs a “third bite at the apple”), aff'd, 2020 WL
4547167 (2d Cir. Aug. 6, 2020).
CONCLUSION
For the foregoing reasons, the Court adopts the Report in full,
grants the City's motion to dismiss, and dismisses Tsinberg's
claims without leave to amend. Tsinberg's federal claims
are dismissed with prejudice, but his state-law claims are
dismissed without prejudice to his ability to pursue them in
state court.
*13 The Clerk of Court is respectfully directed to close this
case.
SO ORDERED.
All Citations
Not Reported in Fed. Supp., 2021 WL 1146942
Footnotes
1 The Court mainly draws its account of the facts from the Amended Complaint and the documents attached
to and discussed in it. Dkt. 22 (“FAC”); see DiFolco v. MSNBC Cable LLC, 622 F.3d 104, 111 (2d Cir. 2010)
(“In considering a motion to dismiss for failure to state a claim pursuant to Rule 12(b)(6), a district court may
consider the facts alleged in the complaint, documents attached to the complaint as exhibits, and documents
incorporated by reference in the complaint.”). Given Tsinberg's pro se status, the Court also considers the
allegations raised in Tsinberg's opposition to the motion to dismiss to the extent consistent with those in the
FAC. See, e.g., George v. Pathways to Hous., Inc., No. 10 Civ. 9505 (ER), 2012 WL 2512964, at *6 n.7
(S.D.N.Y. June 29, 2012). To resolve the motion to dismiss under Rule 12(b)(6), the Court presumes all well-
pled facts to be true and draws all reasonable inferences in favor of plaintiffs. See Koch v. Christie's Int'l PLC,
699 F.3d 141, 145 (2d Cir. 2012).
2 What was once called the PVB is now called the “Adjudications Division.” See Dkt. 27 (“City Mem.”) at 2. The
Court, however, follows the parties and the Report in generally referring to the agency using its old name,
the PVB.
3 In its opening brief, the City misidentified the statute authorizing the imposition of towing and storage fees
as VTL § 1224. See Dkt. 33 (“Reply”) at 7 n.5. It clarified in its reply brief that VTL § 1224 only applies to
abandoned vehicles, and that CPLR § 8013(c) is the authorizing statute for the imposition of removal and
storage fees in this case. Id.
4 Only the first five were subject to final judgments in January 2019, when Tsinberg's car was towed, although
several would later become so, leading to $750 more in outstanding judgments. See Dkt. 22-3; Report at 7–8.
5 The Report construed Tsinberg's allegations about the adequacy of the Article 78 proceedings as a challenge
to the result of that action, and so assessed this issue under the Rooker-Feldman doctrine. See Report at
19–20. But in the Court's view, Tsinberg's challenge to the procedural adequacy of the Article 78 proceeding,
liberally construed, does not necessarily require review of the merits of that action. See Hoblock v. Albany
Cnty. Bd. Of Elections, 422 F.3d 77, 85 (2d Cir. 2005) (Rooker-Feldman bars federal court review of merits of
state-court judgments). Thus, while the Court agrees with the Report's ultimate conclusion, it departs from the
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Report insofar as it based its recommendation on the application of Rooker-Feldman. To the extent Tsinberg
does seek review of the merits of the state-court decision at issue, the Court fully agrees with the thoughtful
assessment of this issue in the Report.
6 In his Objections, Tsinberg argues, for the first time, that Krimstock v. Kelly, 306 F.3d 40 (2d Cir. 2002)
requires a different result. But parties may not raise new legal arguments for the first time in their objections
to a report and recommendation. See, e.g., Gonzalez v. Garvin, No. 99 Civ. 11062 (SAS), 2002 WL 655164,
at *2 (S.D.N.Y. Apr. 22, 2002) (dismissing objection “because it offers a new legal argument that was not
presented in his original petition, nor in the accompanying Memorandum of Law”); see also Abu-Nassar v.
Elders Futures, Inc., No. 88 Civ. 7906 (PKL), 1994 WL 445638, at *4 n.2 (S.D.N.Y. Aug. 17, 1994) (rejecting
arguments advanced for first time in objections to report because permitting such claims would “undermine
the authority of the Magistrate Judge by allowing litigants the option of waiting until a Report is issued
to advance additional arguments”). The Court thus rejects this objection. In any event, as the City notes,
Krimstock appears inapposite. See Response at 3 & n.1.
7 In his Objections, Tsinberg expands on his claim of a substantive due process violation, suggesting that
the state has no legitimate interest in enforcing registration requirements and that he was singled out for
disfavored treatment when the City placed his car on an “indefinite sales hold” as a result of his Article 78
petition, leading to significant storage fees. Objections at 17–19, 25–32. Again, these new theories are not
cognizable in the Court's review of a report and recommendation. See, e.g., Gonzalez, 2002 WL 655164,
at *2. Even if they were, they do not come close to showing a substantive due process violation. In fact, it
appears that it was Tsinberg, not the City, who requested that the Vehicle be placed on a sales hold, which
request led to the accumulating storage fees. FAC ¶ 54; see also Koplik Decl., Ex. R (sales hold listing
“requester” as “Leon G. Tsinberg”).
8 See Farina v. Metro. Transp. Auth., 409 F. Supp. 3d 173, 198–99 (S.D.N.Y. 2019) (“fees and penalties”
that “are multiples” of an unpaid tolls were plausibly alleged to be partially punitive); Dubin, 277 F. Supp.
3d at 400–02 (Excessive Fines Clause applied to “Drivers’ Responsibility Fee” that imposed a mandatory
$45 payment on ticketed motorists who received a final disposition other than “not guilty,” and recognizing
that “administrative and other civil penalties satisfy the [first factor], even if they bear no direct relationship
to a criminal prosecution”); see also Pimental v. City of Los Angeles, 974 F.3d 917, 922 (9th Cir. 2020)
(Excessive Fines Clause applies to “municipal fines,” and specifically parking tickets and late penalties,
under Timbs v. Indiana, 139 S. Ct. 682 (2019), which held that the Clause applies to the states). But see
id. at 925–29 (Bennett, J., concurring) (disagreeing that Eighth Amendment Excessive Fines Clause “should
routinely apply to parking meter violations,” noting that the “potential for federal court litigation is endless” and
risks “trivializ[ing] the Eighth Amendment, the Fourteenth Amendment, and the Civil Rights Acts”). Given the
Supreme Court's recent holding that the Fourteenth Amendment incorporates the Excessive Fines Clause
against state and municipal governments, see Timbs, 139 S. Ct. 682, courts in the coming years may be
called on more often to assess its applicability to cases like this one, and the extent to which these protections
police the bounds of municipal fines, fees, and other penalties. Without fuller presentation by the parties, the
Court here has no occasion to opine on this threshold question.
9 Tsinberg, for the first time in his Objections, argues that the $65 exceeds a statutory cap of $50 for parking
violations set by N.Y. Admin. Code § 19-203(b). See Objections at 37. As the City notes, the $65 amount
results from a mandatory state surcharge required by VTL § 1809-a, which provides that “[t]he provisions
of any other general or special law notwithstanding,” any city with more than 100,000 persons, must levy “a
mandatory surcharge in addition to any other sentence, fine or penalty otherwise permitted or required, in
the amount of fifteen dollars.” Response at 7. That provision states that such $15 surcharge “shall not be
deemed a monetary penalty for the purposes of ... section 19-203 of the administrative code of the city of
New York”—the provision that Tsinberg relies on for this point.
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10 Although Tsinberg relies heavily on the Supreme Court's holding in Timbs in arguing to the contrary, that
case merely held that the Excessive Fines Clause applies to the states. See 139 S. Ct. at 691 (“[R]egardless
of whether application of the Excessive Fines Clause to civil in rem forfeitures is itself fundamental or deeply
rooted, our conclusion that the Clause is incorporated remains unchanged”). It did not purport to alter the
above analysis.
11 Tsinberg is also vague as to how the reference to child support or alimony on the Execution plays into the
Fourth Amendment analysis. To the extent he argues that the language on the Execution falsely accuses him
of owing child support or alimony, that characterization is wrong. A photograph of the Execution is attached
to the FAC. It identifies outstanding child support or alimony as among the authorized bases for such an
execution, but it does not state that each was the bases for executing on Tsinberg's car. It states: “The
judgment creditor is the state of New York, or any of its agencies or municipal corporations and/or the debt
enforced is for child support, spousal support, maintenance or alimony.” Execution (emphasis added). The
execution's recitation thus is consistent with the FAC's allegation that Tsinberg does not owe child support,
alimony, or spousal support. FAC ¶ 7; see Report at 29 (noting that Execution merely recites legally available
bases). Even construing the FAC liberally, it is not plausibly alleged that Tsinberg's vehicle was towed based
on a misperception that he owed child support, spousal support, or alimony, as opposed to the substantial
debts that Tsinberg admits he actually owed to the City for parking infractions.
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Turczyn ex rel. McGregor v. City of Utica, Not Reported in F.Supp.3d (2014)
© 2025 Thomson Reuters. No claim to original U.S. Government Works. 1
2014 WL 6685476
Only the Westlaw citation is currently available.
United States District Court,
N.D. New York.
Kylie Ann TURCZYN, Deceased, by and through
Barbara McGREGOR, as Administratrix of
the Estate of Kylie Ann Turczyn, Plaintiff,
v.
CITY OF UTICA et al., Defendants.
No. 6:13–cv–1357 (GLS/ATB).
|
Signed Nov. 26, 2014.
Attorneys and Law Firms
Office of Frank Policelli, Frank Policelli, Esq., of Counsel,
Utica, NY, for the Plaintiff.
City of Utica—Corporation Counsel, Mark C. Curley, Esq.,
Merima Smajic, Esq., Zachary C. Oren, Esq., of Counsel,
Utica, NY, for the Defendants.
MEMORANDUM–DECISION AND ORDER
GARY L. SHARPE, Chief Judge.
I. Introduction
*1 Plaintiff Kylie Ann Turczyn, deceased, by and through
Barbara McGregor, as administratrix of the estate of Kylie
Ann Turczyn, commenced this action against defendants City
of Utica, City of Utica Police Dept., and Elizabeth Shanley
alleging substantive due process claims pursuant to 42 U.S.C.
§ 1983 and separate state law causes of action. (Am.Compl.,
Dkt. No. 12.) Pending is defendants' motion to dismiss for
failure to state a claim. (Dkt. No. 19.) For the reasons that
follow, the motion is granted in part and denied in part.
II. Background
A. Facts 1
Shanley, an Oneida County domestic violence investigator,
was at all relevant times assigned by the Police Department to
accomplish the goals of reducing “occurrence[s] of domestic
violence by increasing reporting and by identifying and
tracking repeat victims and/or offenders,” and “increas[ing]
victims' access to supportive services by encouraging [them]
to report their abuse, thereby increasing arrest rates for
domestic offenders.” (Am.Compl.¶ 10.) On June 22, 2012,
Thomas Anderson, Turczyn's former boyfriend and the father
of her daughter, broke into Turczyn's home armed with a 9
mm rifle. (Id. ¶ 11) Anderson repeatedly shot Turczyn, taking
her life in view of their four-year-old daughter, G.T. (Id.)
Anderson then dispatched himself. (Id.)
In the twelve months preceding this horrific event, Turczyn
made between five and ten complaints to Utica police
officers, “including informing them of a specific threat by
Anderson to kill her.” (Id. ¶ 12.) Turczyn specifically told
Shanley “that Anderson was armed and had threatened to
kill her.” (Id. ¶ 12(d).) Despite their knowledge of domestic
violence between Turczyn and Anderson, neither Shanley,
New York State Police, nor Utica Police took any steps to
arrest Anderson, investigate Turczyn's complaints, or follow-
up with Anderson “as is the policy and protocol of the
domestic violence unit.” (Id. ¶ 14.)
On June 18, 2012, Shanley told Turczyn to seek an order of
protection, which she attempted to do, but was told by an
unknown person at the Oneida County Family Court to return
the following day because the court was “ ‘too busy.’ “ (Id.
¶¶ 15–16.) The following day, Turczyn left a voice message
for Shanley, explaining that she was unable to obtain an order
of protection and that Anderson had a gun and planned to
kill her that week. (Id. ¶¶ 16–18.) Despite her knowledge,
“Shanley took no action.” (Id. ¶ 17.) Shanley also mistakenly
believed that Turczyn's issues with Anderson were outside of
the purview of Utica Police and should, instead, be dealt with
by New York State Police; however, “she did not inform any
other police agency or take any action herself.” (Id. ¶¶ 18, 19,
20.)
B. Procedural History
Turczyn commenced this action by filing a complaint on
October 31, 2013. (Dkt. No. 1.) Defendants thereafter moved
to dismiss, (Dkt. No. 10.) In response, Turczyn filed an
amended complaint as of right, which is now the operative
pleading. (See generally Am. Compl.) In her amended
complaint, Turczyn alleges the following causes of action:
(1) a denial of substantive due process rights under the Fifth
and Fourteenth Amendments due to deliberate indifference;
(2) a Monell 2 claim against the City; (3) negligence; (4)
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a “derivative action” on behalf of G.T.; and (5) negligent
infliction of emotional distress. (Id. ¶¶ 37–74.) Defendants
now move to dismiss the amended pleading pursuant to Rules
8(a)(2) and 12(b)(6) of the Federal Rules of Civil Procedure.
(Dkt. No. 19.)
III. Standard of Review
*2 The standard of review under Fed.R.Civ.P. 12(b)(6) is
well settled and will not be repeated here. For a full discussion
of the standard, the court refers the parties to its prior decision
in Ellis v. Cohen & Slamowitz, LLP, 701 F.Supp.2d 215, 218
(N.D.N.Y.2010).
IV. Discussion
A. Preliminary Matters
At the outset, it is noted that some of Turczyn's claims
are deemed abandoned by her failure to oppose their
dismissal. See Barmore v. Aidala, 419 F.Supp.2d 193, 201–
02 (N.D.N.Y.2005) (“The failure to oppose a motion to
dismiss a claim is deemed abandonment of the claim,
and, in the Northern District of New York, is deemed
consent to granting that portion of the motion.” (internal
citations omitted)); Hanig v. Yorktown Cent. Sch. Dist.,
384 F.Supp.2d 710, 723 (S.D.N.Y.2005) (“[B]ecause [the]
plaintiff did not address [the] defendant's motion to dismiss
with regard to [a particular] claim, it [wa]s deemed abandoned
and ... dismissed.”). In particular, Turczyn squarely opposed
dismissal of her substantive due process claim as against
Shanley, (Dkt. No. 20 at 8–12), and scarcely, but sufficiently
to save the claim from dismissal for abandonment, offered
reasons why her substantive due process claim as against the
City should survive defendants' motion, (id. at 5–7). Aside
from the substantive due process claim, Turczyn failed to
offer any opposition to defendants' motion, which also sought
dismissal of her pendant causes of action. (Dkt. No. 19,
Attach. 6 at 31–40 & n. 15.) Accordingly, Turczyn's pendant
state law claims, (Am.Compl.¶¶ 59–74), are dismissed.
Additionally, it is clear that the Police Department must be
dismissed as urged by defendants, (Dkt. No. 19, Attach. 6
at 2 n. 2), because “a department of a municipal entity is
merely a subdivision of the municipality and has no separate
legal existence.” Varela v. City of Troy, No. 1:10–cv–1390,
2014 WL 2176148, at *6 (N.D.N.Y. May 22, 2014) (internal
quotation marks omitted). As such, all claims as against the
Police Department are dismissed.
The court also notes that both parties have submitted certain
evidence that is outside of the pleadings (Dkt. No. 19,
Attachs. 3, 4; Dkt. No. 20, Attachs. 1, 2.) Beginning with
defendants, they submitted a January 2, 2013 stipulation of
discontinuance, which, on its face, purports to memorialize
McGregor's agreement to withdraw the notice of claim filed
on behalf of Turczyn and to discontinue with prejudice,
(Dkt. No. 19, Attach.3), and a December 28, 2012 letter,
which appears to memorialize a conversation regarding the
discontinuation of legal action and execution of a stipulation,
(Dkt. No. 19, Attach.4). Relying on a single out-of-Circuit
decision, see Raines v. Haverford Coll., 849 F.Supp. 1009,
1010 (E.D.Pa.1994), which does not appear directly to
support their position nor does it give this court confidence
that the kinds of documents at issue here were contemplated
by that decision, defendants assert that the documents may be
considered on their motion to dismiss as “part of the record of
this case.” (Dkt. No. 19, Attach. 6 at 25 n. 11.) Turczyn argues
that defendants' reliance on the stipulation is inappropriate
at this juncture, yet she offers the affidavit of McGregor,
submitted to dispute the validity of the stipulation, (Dkt. No.
20, Attach.1), without any explanation as to why the court
should or may consider it. (Dkt. No. 20 at 12–13.)
*3 The court has excluded from its consideration of this
motion to dismiss the exhibits offered by defendants as
well as the McGregor affidavit. See Fed.R.Civ.P. 12(d).
The existence of some document or documents that may
extinguish a plaintiff's claims, such as a release or stipulation
of discontinuance, is an affirmative defense, see Beede v.
Stiefel Labs., Inc., No. 1:13–cv–120, 2014 WL 896725, at *3
(N.D.N.Y. Mar.6, 2014), and “ ‘[a]n affirmative defense may
be raised by a pre-answer motion to dismiss under Rule 12(b)
(6) ... if the defense appears on the face of the complaint,’ “
Iowa Pub. Emps.' Ret. Sys. v. MF Global, Ltd., 620 F.3d 137,
145 (2d Cir.2010) (quoting Pani v. Empire Blue Cross Blue
Shield, 152 F.3d 67, 74 (2d Cir.1998)).
Here, the stipulation defense is not apparent from the face
of the amended complaint. Moreover, the court refuses to
consider the documents in question as part of the record of
this case, a proposition for which no in-Circuit authority has
been offered nor has any been discovered by this court. As
such, the documents offered by defendants, (Dkt. No. 19,
Attachs.3, 4), are not properly before the court, and their
argument that Turczyn's claims must be dismissed because of
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those documents is rejected. McGregor's affidavit, (Dkt. No.
20, Attach.1), which was also improvidently submitted for
consideration, is likewise excluded. The court now turns to
the merits of defendants' arguments regarding the substantive
due process and Monell claims.
B. Rule 8
First, defendants argue that Turczyn's § 1983 due process
claim is subject to dismissal under the Rule 8 plausibility
analysis—specifically because of Turczyn's failure to allege
facts supportive of a sufficient nexus between Shanley's
omissions and Turczyn's death. (Dkt. No. 19, Attach. 6
at 23–24.) The court disagrees. The amended complaint
plausibly alleges a causal connection between the conduct
of defendants—their alleged conscience-shocking failure to
protect Turczyn, (Am.Compl.¶ 49)—and her injuries, i.e.,
the allegations plausibly suggest that defendants' acts were
a substantial factor in bringing about Turczyn's injuries. See
Gierlinger v. Gleason, 160 F.3d 858, 872 (2d Cir.1998) (“[I]n
all § 1983 cases[ ] the plaintiff must prove that the defendant's
action was a proximate cause of the plaintiff's injury.”).
Accordingly, this argument is rejected.
C. Rule 12(b)(6)
Defendants argue that Turczyn has failed to state a substantive
due process claim as against Shanley or the City. (Dkt. No.
19, Attach. 6 at 220, 26–31.) Defendants contend that Turczyn
alleges only passive conduct on the part of Shanley that does
not give rise to a substantive due process violation. (Id. at 10–
12.) More generally, defendants assert that Turczyn has failed
to plead facts to show “implicit prior assurances through
repeated sustained inaction,” and that, even if she did, the
state action alleged does not rise to the level of conscience-
shocking behavior. (Id. at 15–20.) Alternatively, defendants
argue that Shanley is entitled to qualified immunity. (Id. at
20–23.) With respect to the City, defendants contend that
Turczyn has failed to allege facts that support a claim of
municipal liability. (Id. at 26–31.) For reasons explained
below, defendants' motion is denied with respect to Turczyn's
substantive due process claim against Shanley, but granted
with respect to her Monell claim against the City.
*4 Only one relevant exception to the general rule that
no substantive due process claim lies for a state's failure to
protect an individual from private violence, see DeShaney v.
Winnebago Cnty. Dep't of Soc. Servs., 489 U.S. 189, 197,
109 S.Ct. 998, 103 L.Ed.2d 249 (1989), potentially applies
in this case. That exception imposes liability for failure to
protect where state actors in some way affirmatively assist
“in creating or increasing the danger to the victim.” Okin v.
Vill. of Cornwall–On–Hudson Police Dep't, 577 F.3d 415, 428
(2d Cir.2009) (internal quotation marks and citation omitted);
see Pena v. DePrisco, 432 F.3d 98, 110 (2d Cir.2005).
“[R]epeated, sustained inaction by government officials, in
the face of potential acts of violence, might constitute ‘prior
assurances,’ rising to the level of an affirmative condoning
of private violence, even if there is no explicit approval or
encouragement.” Okin, 577 F.3d at 428 (quoting Dwares
v. City of N.Y., 985 F.2d 94, 99 (2d Cir.1993)). Moreover,
when “state officials communicate to a private person that
he ... will not be arrested, punished, or otherwise interfered
with while engaging in misconduct that is likely to endanger
the life, liberty or property of others, those officials can
be held liable under section 1983 for injury caused by the
misconduct” “even though none of the defendants [is] alleged
to have communicated the approval explicitly.” Id. at 428–
29 (quoting Pena, 432 F.3d at 111)). In a nutshell, “[t]he
affirmative conduct of a government official may give rise
to an actionable due process violation if it communicates,
explicitly or implicitly, official sanction of private violence.”
Id. at 429.
A successful substantive due process claim also requires that
the plaintiff show “that the state action was ‘so egregious,
so outrageous, that it may fairly be said to shock the
contemporary conscience.’ “ Id. at 431 (quoting Cnty. of
Sacramento v. Lewis, 523 U.S. 833, 847 n. 8, 118 S.Ct. 1708,
140 L.Ed.2d 1043 (1998). A hierarchy of intent provides
guidance on the likelihood that a particular harm rises to the
necessary level. Intentionally inflicted harms are most likely
to meet the standard, while reckless and negligent inflictions
of harm are each less likely, in graduated downward steps, to
show conscience-shocking state action. Id. As for recklessly
inflicted injuries, “ ‘[d]eliberate indifference that shocks in
one environment may not be so patently egregious in another.’
“ Id. (quoting Lewis, 523 U.S. at 850). Accordingly, the
inquiry is highly fact specific.
Unlike Town of Castle Rock v. Gonzales, 545 U.S. 748,
125 S.Ct. 2796, 162 L.Ed.2d 658 (2005), or Neal v. Lee
County, Civil Action No. 1:08CV262, 2010 WL 582437
(N.D.Miss. Feb.12, 2010)—cases in which police had limited
interaction with either the victim or killer prior to the
victim's demise, and upon which defendants rely for dismissal
of the claim against Shanley, (Dkt. No. 19, Attach. 6 at
3–5, 7–8)—the allegations here go substantially farther.
Turczyn alleges several occasions 3 when Shanley knew of
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Anderson's threatening acts and did nothing, which arguably
communicated to him prior assurances that there would be
no penalty to pay for his conduct. (Am.Compl.¶¶ 12–13.)
“This is so even though none of the defendants are alleged
to have communicated the approval explicitly.” Pena, 432
F.3d at 111. Okin has specifically recognized the liability
that may arise under these circumstances. See 577 F.3d at
428–29 (explaining that liability under § 1983 attaches when
“state officials communicate to a private person that he ... will
not be arrested, punished, or otherwise interfered with while
engaging in misconduct that is likely to endanger the life,
liberty or property of others” (quoting Pena, 432 F.3d at 111)).
*5 The amended complaint also pleads facts that
demonstrate, at this juncture, egregious behavior that shocks
the contemporary conscience. As in Okin, the allegations
here tend to show that Shanley, who was tasked with
accomplishing certain goals related to curbing domestic
violence, was deliberately indifferent as to whether or not
Anderson would make good on his multiple threats against
Turczyn's life over a twelve-month-period. (Am.Compl.¶ ¶
10, 12.) These allegations sufficiently support that Shanley's
affirmative conduct was the product of deliberate indifference
that shocks the conscience, and would provide a reasonable
jury with a valid basis to so find. See Conradt v. NBC
Universal, Inc., 536 F.Supp.2d 380, 394–95 (S.D.N.Y.2008).
Finally, Shanley is not entitled to qualified immunity at
this juncture. Her argument on this issue is two-fold. First,
Shanley asserts that no constitutional violation occurred, and,
second, she claims that, even if a constitutional violation
occurred, the right was not clearly established. (Dkt. No.
19, Attach. 6 at 20–23.) The first prong of the argument is
easily swept aside by reference to the preceding paragraphs
that explain that the amended complaint alleges a cognizable
substantive due process violation. As for whether or not
the right was clearly established, which is a prerequisite
to qualified immunity, see Harlow v. Fitzgerald, 457 U.S.
800, 818, 102 S.Ct. 2727, 73 L.Ed.2d 396 (1982), this
question has been resolved by the Second Circuit. On the
issue, the court has explained that it is “clearly established,”
under the state-created danger theory, “that police officers are
prohibited from affirmatively contributing to the vulnerability
of a known victim by engaging in conduct, whether explicit
or implicit, that encourages intentional violence against the
victim, and as that is the substantive due process violation
alleged here, qualified immunity does not apply.” Okin, 577
F.3d at 434. Accordingly, Shanley is not entitled to qualified
immunity at this time.
As for the City, defendants assert that Turczyn has failed to
plead a Monell claim because the amended complaint merely
alleges legal conclusions. (Dkt. No. 19, Attach. 6 at 26–31.)
With respect to Turczyn's allegation that the City failed to
properly train or supervise its employees, defendants contend
that the amended complaint is too conclusory, but that, even
if adequately pleaded, Turczyn's municipal liability claim
must nonetheless fail because she has not alleged deliberate
indifference. (Id. at 29–31.)
It is well settled that “the inadequacy of police training may
serve as the basis for § 1983 liability ... where the failure
to train amounts to deliberate indifference to the rights of
persons with whom the police come into contact.” City of
Canton, Oh. v. Harris, 489 U.S. 378, 380, 388, 109 S.Ct.
1197, 103 L.Ed.2d 412 (1989). The deliberate indifference
standard is “stringent” and requires “proof that a municipal
actor disregarded a known or obvious consequence of his
action.” Connick v. Thompson, –––U.S. ––––, ––––, 131 S.Ct.
1350, 1360, 179 L.Ed.2d 417 (2011) (internal quotation marks
and citation omitted). A showing of deliberate indifference
requires that: (1) “a policymaker knows ‘to a moral certainty’
that her employees will confront a given situation”; (2) “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) “the wrong choice by the ... employee will
frequently cause the deprivation of a citizen's constitutional
rights.” Walker v. City of N.Y., 974 F.2d 293, 297–98 (2d
Cir.1992) (quoting City of Canton, 489 U.S. at 390 n. 10).
*6 Here, because Turczyn has failed to adequately plead that
the City's failure to train and supervise amounted to deliberate
indifference, she has failed to state a claim of municipal
liability. The amended complaint uses the label “deliberate
indifference” in reference to Turczyn's municipal liability
claim and generically references the City's failure to properly
train and supervise, but it fails to allege facts that support
either conclusory notion. (Am.Compl.¶¶ 45, 52.) Turczyn's
pleading failure mandates dismissal of her Monell claim
against the City. See Gauthier v. Kirkpatrick, Civil Action No.
2:13–cv–187, 2013 WL 6407716, at *10 (D.Vt. Dec.9, 2013)
(dismissing failure to train Monell claim because the plaintiff
failed to plead facts that supported the deliberate difference
elements); Santos v. New York City, 847 F.Supp.2d 573, 577
(S.D.N.Y.2012); see also Worrell v. City of N.Y ., No. 12–CV–
6151, 2014 WL 1224257, at *13 (E.D.N.Y. Mar. 24, 2014).
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V. Conclusion
WHEREFORE, for the foregoing reasons, it is hereby
ORDERED that defendants' motion to dismiss (Dkt. No. 19)
is GRANTED IN PART and DENIED IN PART as follows:
GRANTED with respect to all claims alleged as against
the City of Utica Police Dept. and the Clerk is directed to
terminate the City of Utica Police Dept. from this action; and
GRANTED with respect to Turczyn's Monell claim
against the City (Am.Compl.¶ ¶ 51–58), which is hereby
DISMISSED WITHOUT PREJUDICE, and the Clerk is
directed to terminate the City of Utica from this action; and
GRANTED with respect to all of Turczyn's pendant state
law claims, (Am.Compl.¶ ¶ 59–74), which are hereby
DISMISSED; and DENIED in all other respects; and it is
further
ORDERED that the sole remaining defendant, Shanley,
shall file an appropriate responsive pleading within the time
allotted by the rules; and it is further
ORDERED that the parties shall contact Magistrate Judge
Andrew T. Baxter in order to schedule further proceedings;
and it is further
ORDERED that the Clerk provide a copy of this
Memorandum–Decision and Order to the parties.
IT IS SO ORDERED.
All Citations
Not Reported in F.Supp.3d, 2014 WL 6685476
Footnotes
1 The facts are presented in the light most favorable to plaintiff.
2 See Monell v. Dep't of Soc. Servs. of N.Y., 436 U.S. 658, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978).
3 In fact, Turczyn claims that she lodged five to ten complaints—of which Shanley was aware—with the Utica
Police within the twelve months preceding the murder. (Am.Compl.¶¶ 12, 13.) So many occurrences may
amount to “repeated [and] sustained inaction ... in the face of potential acts of violence.” Okin, 577 F.3d at 428.
End of Document © 2025 Thomson Reuters. No claim to original U.S. Government Works.
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White v. Syracuse Police Department, Not Reported in Fed. Supp. (2019)
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2019 WL 981850
Only the Westlaw citation is currently available.
United States District Court, N.D. New York.
Jeramie WHITE, Plaintiff,
v.
SYRACUSE POLICE
DEPARTMENT, et al., Defendants.
Civil Action No. 5:18-CV-1471 (GTS/DEP)
|
Signed 01/07/2019
Attorneys and Law Firms
FOR PLAINTIFF: Jeramie White, Pro se, 18-B-0311, Cayuga
Correctional Facility, P.O. Box 1186, Moravia, NY 13118.
ORDER, REPORT, AND RECOMMENDATION
DAVID E. PEEBLES, CHIEF U.S. MAGISTRATE JUDGE
*1 This is a civil rights action brought by pro se plaintiff
Jeramie White, a New York State prison inmate, pursuant to
42 U.S.C. § 1983, against the Syracuse Police Department
(“SPD”) and five of its officers. In his complaint, plaintiff
alleges that defendants violated his constitutional rights
during the course of his arrest on February 13, 2017. Plaintiff's
complaint and accompanying application for leave to proceed
in forma pauperis (“IFP”) have been referred to me for
review. Based upon my consideration of those materials, I will
(1) grant plaintiff's amended IFP application, (2) recommend
dismissal of his claim against the SPD with leave to replead,
and (3) recommend that his complaint otherwise be accepted
for filing.
I. BACKGROUND
Plaintiff commenced this action on or about December 20,
2018. Dkt. No. 1. According to plaintiff, he and two friends
were on their way to play indoor basketball when their vehicle
was pulled over for a traffic infraction. Id. at 4; Dkt. No. 1-1 at
4. Plaintiff alleges that after the stop, defendant William Kittle
forcibly removed White from the vehicle and that Kittle, in
addition to defendants Abraham Mamoun and Shawn Hauck,
proceeded to use excessive force against him during the
course of his arrest. Dkt. No. 1 at 4-5, 6-7; see also Dkt. No.
1-1 at 4, 8. Plaintiff further alleges that defendants Altimonda
and Fiorini were present and had an obligation to intervene
and prevent the unlawful use of force, but failed to do so. Id.
at 5, 7.
Plaintiff was ultimately arrested and charged with resisting
arrest, in violation of N.Y. Penal Law § 205.30, and
second-degree obstruction of governmental administration, in
violation of N.Y. Penal Law § 195.05. Dkt. No. 1-1 at 4. As
relief, plaintiff seeks compensatory and punitive damages in
the amount of $1,000,000. Dkt. No. 1 at 8.
A. Plaintiff's Amended IFP Application 1
When a civil action is commenced in a federal district court,
the statutory filing fee, currently set at $400, must ordinarily
be paid. 28 U.S.C. § 1914(a). A court is authorized, however,
to permit a litigant to proceed IFP if it determines that he
is unable to pay the required filing fee. 28 U.S.C. § 1915(a)
(1). 2 Because I conclude that plaintiff meets the requirements
for IFP status, his amended application for leave to proceed
without prepayment of fees is granted. 3
B. Sufficiency of Plaintiff's Complaint
1. Governing Legal Standard
*2 Because I have found that plaintiff meets the financial
criteria for commencing this case IFP, I must next consider
the sufficiency of the claims set forth in his complaint in light
of 28 U.S.C. § 1915(e). Section 1915(e) directs that, when
a plaintiff seeks to proceed IFP, “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)(B). Similarly, 28 U.S.C. § 1915A(b)
directs a court to review any “complaint in a civil action in
which a prisoner seeks redress from a governmental entity
or officer or employee of a governmental entity,” and to
“identify cognizable claims or dismiss the complaint, or any
portion of the complaint, if the complaint ... is frivolous,
malicious, or fails to state a claim upon which relief may be
granted; or ... seeks monetary relief from a defendant who is
immune from such relief.” 28 U.S.C. § 1915A(b); see also
Abbas v. Dixon, 480 F.3d 636, 639 (2d Cir. 2007) (“We have
found both sections [1915 and 1915A] applicable to prisoner
proceedings in forma pauperis.”).
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In deciding whether a complaint states a colorable claim, a
court must extend a certain measure of deference in favor
of pro se litigants, Nance v. Kelly, 912 F.2d 605, 606 (2d
Cir. 1990) (per curiam), and 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 address the sufficiency of plaintiff's
allegations, Anderson v. Coughlin, 700 F.2d 37, 41 (2d Cir.
1983). The court, however, also has an overarching obligation
to determine that a claim is not legally frivolous before
permitting a pro se plaintiff's complaint to proceed. See, e.g.,
Fitzgerald v. First East Seventh St. Tenants Corp., 221 F.3d
362, 363 (2d Cir. 2000) (holding that a district court may
sua sponte dismiss a frivolous complaint, notwithstanding
the fact that the plaintiff paid the statutory filing fee).
“Legal frivolity ... occurs where ‘the claim is based on an
indisputably meritless legal theory [such as] when either the
claim lacks an arguable basis in law, or a dispositive defense
clearly exists on the face of the complaint.’ ” Aguilar v.
United States, Nos. 99-MC-0304, 99-MC-0408, 1999 WL
1067841, at *2 (D. Conn. Nov. 8, 1999) (quoting Livingston
v. Adirondack Beverage Co., 141 F.3d 434, 437 (2d Cir.
1998) ); see also Neitzke v. Williams, 490 U.S. 319, 325
(1989) (“[D]ismissal is proper only if the legal theory ... or
factual contentions lack an arguable basis.”); Pino v. Ryan, 49
F.3d. 51, 53 (2d Cir. 1995) (“[T]he decision that a complaint
is based on an indisputably meritless legal theory, for the
purposes of dismissal under section 1915(d), may be based
upon a defense that appears on the face of the complaint.”).
When reviewing a complaint under section 1915(e), the
court is guided by the Federal Rules of Civil Procedure.
Specifically, Rule 8 provides that a pleading must contain “a
short and plain statement of the claim showing that the pleader
is entitled to relief.” 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,
J.) (quotation marks and italics omitted).
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). Although the court should construe the factual
allegations of a complaint in a 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.” Iqbal, 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). Thus, “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.’ ” Id. at 679
(quoting Fed. R. Civ. P. 8(a)(2) ).
2. Analysis of Plaintiff's Claims
*3 Although a municipality is subject to suit pursuant to
section 1983, see Monell v. Dept. 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. See Krug v. Cnty.
of Rennselaer, 559 F. Supp. 2d 223, 247 (N.D.N.Y. 2008)
(citing Orraca v. City of N.Y., 879 F. Supp. 148 (S.D.N.Y.
1995) ); Turczyn ex rel. McGregor v. City of Utica, No. 13-
CV-1357, 2014 WL 6685476, at *2 (N.D.N.Y. Nov. 26, 2014)
(Sharpe, J.); see also 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.”). Although I would ordinarily recommend
that, for the sake of judicial efficiency, the court substitute
the City of Syracuse in place of the SPD, plaintiff's complaint
contains no factual allegations that would support a Monell
claim against the City of Syracuse. Accordingly, I recommend
dismissal of plaintiff's claims asserted against the SPD.
With respect to his remaining claims, although plaintiff makes
passing reference to his rights arising under the Eighth and
Fourth Amendments, see Dkt. No. 1 at 6, it is clear from the
factual allegations that he is asserting claims for excessive
force and the failure to intervene arising under the Fourth
Amendment. See generally Dkt. No. 1; see also Edrei v.
Maguire, 892 F.3d 525, 533 (2d Cir. 2018) (“Arrestees
may invoke the Fourth Amendment's prohibition against
‘unreasonable’ seizures.”). In light of the court's obligation
to liberally construe a pro se litigant's pleadings, I find that
plaintiff's complaint should be accepted for filing and the
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individual officer defendants should be required to respond in
accordance with the local rules of practice for this court and
the Federal Rules of Civil Procedure. 4
C. Whether to Permit Amendment
Ordinarily, a court should not dismiss 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) (“The court should freely give leave when justice so
requires.”); see also Mathon v. Marine Midland Bank, N.A.,
875 F. Supp. 986, 1003 (E.D.N.Y. 1995) (permitting leave to
replead where court could “not determine that the plaintiffs
would not, under any circumstances, be able to allege a civil
RICO conspiracy”). 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, No. 95-CV-1641, 1997
WL 599355, at *1 (N.D.N.Y. Sept. 22, 1997) (Pooler, J.).
In this case, while I recommend dismissal of plaintiff's
claim against the SPD, plaintiff could potentially amend his
complaint to assert a cognizable cause of action against a
defendant, such as the City of Syracuse, which is amenable to
suit. Accordingly, I recommend that plaintiff be granted leave
to amend his complaint. If plaintiff chooses to file an amended
complaint, he must clearly and concisely set forth the 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, 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.” (internal quotation marks omitted) ).
II. SUMMARY, ORDER, AND RECOMMENDATION
*4 Having reviewed plaintiff's amended application for
leave to proceed in this action IFP, I conclude that he has
met the applicable requirements for leave to proceed without
prepayment of fees, and will therefore grant his application.
Turning to the merits of his complaint, to the extent that
it names five police officers and alleges a violation of 42
U.S.C. § 1983, I conclude that those claims are not subject to
dismissal at this procedural juncture. I recommend a finding,
however, that plaintiff's claim against the SPD is legally
deficient and subject to dismissal, but that plaintiff should be
afforded an opportunity to amend with respect to that claim.
Accordingly, it is hereby
ORDERED that plaintiff's amended application for leave to
proceed in this action without prepayment of fees (Dkt. No.
6) is GRANTED; and it is further
ORDERED that plaintiff's original application for leave to
proceed in this action without prepayment of fees (Dkt. No.
2) is DENIED as moot; and it is further
RECOMMENDED that plaintiff's complaint (Dkt. No. 1)
be accepted for filing with respect to plaintiff's Fourth
Amendment cause of action against defendants Mamoun,
Kittle, Hauck, Altimonda, and Fiorini; and it is further
RECOMMENDED that plaintiff's remaining cause of action
against the Syracuse Police Department be otherwise
DISMISSED with leave to replead within thirty days of the
issuance of an order adopting this recommendation; and it is
further
RECOMMENDED that, in the event plaintiff does not choose
to file an amended complaint and the above recommendations
are adopted, the case should move forward with respect
to plaintiff's Fourth Amendment cause of action against
defendants Mamoun, Kittle, Hauck, Altimonda, and Fiorini.
NOTICE: Pursuant to 28 U.S.C. § 636(b)(1), the parties
may lodge written objections to the foregoing report. Such
objections must be filed with the clerk of the court within
FOURTEEN days of service of this report. 5 FAILURE
TO SO OBJECT TO THIS REPORT WILL PRECLUDE
APPELLATE REVIEW. 28 U.S.C. § 636(b)(1); Fed. R. Civ.
P. 6(a), 6(d), 72; Roldan v. Racette, 984 F.2d 85 (2d Cir. 1993).
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White v. Syracuse Police Department, Not Reported in Fed. Supp. (2019)
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© 2025 Thomson Reuters. No claim to original U.S. Government Works. 4
All Citations
Not Reported in Fed. Supp., 2019 WL 981850
Footnotes
1 Plaintiff filed both an original and amended motion to proceed in this action IFP. Dkt. Nos. 2, 6. While the two
motions contain slightly different information concerning plaintiff's financial status, only the amended motion
contains the required certification from an official at the correctional facility in which plaintiff is confined.
Compare Dkt. No. 3 with Dkt. No. 7. Accordingly, plaintiff's original IFP application is denied as incomplete.
2 The total cost for filing a civil action in this court is $400.00, consisting of the civil filing fee of $350.00, see 28
U.S.C. § 1914(a), and an administrative fee of $50.00. Although an inmate granted IFP status is not required
to pay the $50.00 administrative fee, he is required to pay, over time, the full amount of the $350.00 filing fee
regardless of the outcome of the action. See 28 U.S.C. § 1915(b)(3).
3 Plaintiff is reminded that, although his IFP application has been granted, he will still be required to pay fees
that he incurs in this action, including copying and/or witness fees.
4 The court expresses no opinion concerning whether plaintiff's claims can survive a properly filed motion to
dismiss or motion for summary judgment, or whether he may prevail at trial.
5 If you are proceeding pro se and are 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 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 © 2025 Thomson Reuters. No claim to original U.S. Government Works.
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White v. Syracuse Police Department, Not Reported in Fed. Supp. (2019)
© 2025 Thomson Reuters. No claim to original U.S. Government Works. 1
2019 WL 974824
Only the Westlaw citation is currently available.
United States District Court, N.D. New York.
Jeramie WHITE, Plaintiff,
v.
SYRACUSE POLICE DEPARTMENT; Abraham
Mamoun, Syracuse Police Dept.; William Kittle,
Syracuse Police Dept.; Shawn Hauck, Syracuse
Police Dept.; Altimonda, Syracuse Police Dept.;
and Fiorini, Syracuse Police Dept., Defendants.
5:18-CV-1471 (GTS/DEP)
|
Signed 02/28/2019
Attorneys and Law Firms
JERAMIE WHITE, 18-B-0311, Plaintiff, Pro Se, Cayuga
Correctional Facility, P.O. Box 1186, Moravia, New York
13118.
DECISION and ORDER
Hon. Glenn T. Suddaby, Chief U.S. District Judge
*1 Currently before the Court, in this pro se civil rights
action filed by Jeramie White (“Plaintiff”) against the
Syracuse Police Department and five of its employees
(“Defendants”), is United States Magistrate Judge David
E. Peebles' Report-Recommendation recommending that (1)
Plaintiff’s Complaint be accepted for filing by the Court
with respect to Plaintiff’s Fourth Amendment cause of action
against Defendants Mamoun, Kittle, Hauck, Altimonda and
Fiorini, and (2) Plaintiff’s remaining cause of action against
the Syracuse Police Department be dismissed with leave to
replead within thirty days of the issuance of an Order adopting
the Report-Recommendation. (Dkt. No. 9.) Plaintiff did not
submit an objection to the Report-Recommendation, and the
deadline by which to do so has expired. (See generally Docket
Sheet.) 1
Based upon a review of this matter, the Court can find
no clear error in the Report-Recommendation: 2 Magistrate
Judge Peebles 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; Plaintiff’s
Complaint is accepted for filing with respect to his Fourth
Amendment cause of action against Defendants Mamoun,
Kittle, Hauck, Altimonda and Fiorini; and Plaintiff’s
remaining cause of action against the Syracuse Police
Department is dismissed with leave to replead within thirty
days of the issuance of this Decision and Order.
ACCORDINGLY, it is
ORDERED that Magistrate Judge Peebles' Report-
Recommendation (Dkt. No. 9) is ACCEPTED and
ADOPTED in its entirety; and it is further
ORDERED that Plaintiff’s Complaint is accepted for filing
with respect to Plaintiff’s Fourth Amendment cause of action
against Defendants Mamoun, Kittle, Hauck, Altimonda and
Fiorini; and it is further
*2 ORDERED that Plaintiff’s remaining cause of action
against the Syracuse Police Department is DISMISSED with
leave to replead within THIRTY (30) DAYS of the issuance
of this Decision and Order.
ORDERED that, in the event Plaintiff files an Amended
Complaint within the above-referenced thirty-day period, it
shall be referred to Magistrate Judge Peebles for review; and
it is further
ORDERED that, in the event Plaintiff does not file an
Amended Complaint within the above-referenced thirty-
day period, this action shall move forward with respect to
his Fourth Amendment cause of action against Defendants
Mamoun, Kittle, Hauck, Altimonda and Fiorini, and the Clerk
of the Court is directed to issue summonses and USM-285
forms at that time for service by the U.S. Marshal Service.
All Citations
Not Reported in Fed. Supp., 2019 WL 974824
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White v. Syracuse Police Department, Not Reported in Fed. Supp. (2019)
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Footnotes
1 The Court notes that, on January 11, 2019, Plaintiff filed a letter from the City of Syracuse Citizen Review
Board dated December 31, 2018, outlining its findings with respect to this matter. (Dkt. No. 10.) In its letter,
the Citizen Review Board upheld Plaintiff’s claim for excessive force against “Det. One,” recommended a
written reprimand against that individual, and absolved “Det. Two,” “Sgt. One,” and “Lt. One” from wrongdoing
regarding the use of excessive force. (Id.) The Court does not liberally construe this letter as any sort of
Objection to the Report-Recommendation.
2 When no 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).
End of Document © 2025 Thomson Reuters. No claim to original U.S. Government Works.
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Wright v. City of Syracuse, Not Reported in F.Supp.3d (2014)
2014 WL 1293527
© 2025 Thomson Reuters. No claim to original U.S. Government Works. 1
2014 WL 1293527
Only the Westlaw citation is currently available.
United States District Court,
N.D. New York.
Guynell WRIGHT, Plaintiff,
v.
CITY OF SYRACUSE; Jeffrey T. Wright;
Andrew Nolan; Donald Thompson; Robert
Calkin; John Doe(s); Jane Doe(s); John M.
O'Connor, III; and Thomas Simone, Defendants.
No. 5:10–CV–0661 (GTS/TWD).
|
Signed March 31, 2014.
Attorneys and Law Firms
Bosman Law Firm, L.L.C., A.J. Bosman, Esq., Daniel W.
Flynn, Esq., of Counsel, Rome, NY, for Plaintiff.
Hon. Robert P. Stamey, James P. McGinty, Esq., Aimee M.
Paquette, Esq., of Counsel, Syracuse, NY, for City of Syracuse
Counsel for Defendants.
Hancock Estabrook LLP, John G. Powers, Esq., of Counsel,
Syracuse, NY, for Defendants.
DECISION and ORDER
GLENN T. SUDDABY, District Judge.
*1 Currently before the Court, in this employment
discrimination action filed by Guynell Wright (“Plaintiff”)
against the City of Syracuse, six of its employees and an
unstated number of John and Jane Does (“Defendants”)
is Defendants' motion for summary judgment pursuant to
Fed.R.Civ.P. 56. (Dkt. No. 95.) For the reasons set forth
below, the motion is granted.
I. RELEVANT BACKGROUND
A. Plaintiff's Claims
Generally, in his Third Amended Complaint, Plaintiff, an
African–American man who was formerly employed by the
City of Syracuse (“the City”) as a laborer for the Department
of Public Works (“the Department”), alleges that, throughout
his employment with the City, he was treated differently than
similarly situated white employees in the form of promotions,
work assignments and discipline; he was retaliated against for
his complaints of racial discrimination; and he was subject
to continuous hostile work environment conditions. (Dkt. No.
45.)
Based on the factual allegations of Plaintiff's Third Amended
Complaint, he asserts the following twenty-one claims: (1)
a claim against all Defendants alleging race discrimination
in violation of Title VII of the Civil Rights Act of 1964,
as amended, 42 U.S.C. § 2000e et seq. (“Title VII”); (2) a
claim against all Defendants alleging race discrimination in
violation of the New York Human Rights Law, N.Y. Exec.
Law § 296 (“NYHRL”); (3) a claim against all Defendants
alleging hostile work environment in violation of Title VII;
(4) a claim against all Defendants alleging hostile work
environment in violation of NYHRL; (5) a claim against all
Defendants alleging retaliation in violation of Title VII; (6)
a claim against ll Defendants alleging retaliation in violation
of NYHRL; (7) a claim against all Defendants alleging
race discrimination in violation of Plaintiff's right to equal
protection under the Fourteenth Amendment pursuant to 42
U.S.C. § 1983 (“Section 1983”); (8) a claim against all
Defendants alleging hostile work environment in violation
of Plaintiff's right to equal protection under the Fourteenth
Amendment pursuant to Section 1983; (9) a claim against
all Defendants alleging retaliation in violation of Plaintiff's
right to freedom of speech under the First Amendment
pursuant to Section 1983; (10) a claim against the City
alleging municipal liability on Plaintiff's Section 1983 claims
against the individually named Defendants; (11) a claim
alleging breach of contract against all Defendants; (12) a
claim against all Defendants alleging race discrimination in
violation of 42 U.S.C. § 1981 (“Section 1981”); (13) a claim
against all Defendants alleging hostile work environment in
violation of Section 1981; (14) a claim against all Defendants
alleging retaliation in violation of Section 1981; (15) a claim
against all Defendants alleging the deprivation of Plaintiff's
property interest in his continued employment in violation
of his right to due process under the Fourteenth Amendment
pursuant to Section 1983; (16) a claim against all Defendants
alleging the deprivation of Plaintiff's property and liberty
interest in his good name and reputation in violation of
his right to due process under the Fourteenth Amendment
pursuant to Section 1983; (17) a claim against all Defendants
alleging the deprivations of Plaintiff's rights under Article
I of the New York State Constitution; (18) a claim against
all Defendants alleging retaliation in violation of Title
VII based on the Defendants having successfully contested
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Plaintiff's unemployment compensation benefits; (19) a claim
against all Defendants alleging retaliation in violation of
Section 296 based on the Defendants having successfully
contested Plaintiff's unemployment compensation benefits;
(20) a claim against all Defendants alleging retaliation in
violation of Plaintiff's right to freedom of speech under
the First Amendment pursuant to Section 1983 based on
the Defendants having successfully contested Plaintiff's
unemployment compensation benefits; and (21) a claim
against all Defendants alleging retaliation in violation of
Section 1981 based on the Defendants having successfully
contested Plaintiff's unemployment compensation benefits.
(Id.)
B. Undisputed Material Facts
*2 The following material facts 1 are gleaned from
Defendants' Local Rule 7.1 Statement of Undisputed Material
Facts, and Plaintiff's response thereto. (See Dkt. No. 100–
7 [Defs.' Rule 7.1 Statement]; Dkt. No. 105 [Pl.'s Rule 7.1
Response Statement].) Local Rule 7.1(a)(3) of the Local
Rules of Practice for this Court requires that the nonmoving
party file a response to the moving party's Statement of
Material Facts, which admits or denies each of the moving
party's factual assertions in matching numbered paragraphs,
and supports any denials with a specific citation to the record
where the factual issue arises. N.D.N.Y. L.R. 7.1(a)(3). It
further provides that, to the extent that the nonmoving party
fails to do so, the facts asserted in the movant's Statement of
Material Facts will be deemed admitted, as long as they are
supported by the record. Id.
Plaintiff was employed as a “Laborer I” in the Department's
Street Cleaning Bureau from at least June of 2006 until
his termination in February of 2010. 2 Laborer I is a
civil service classified job title that includes a written job
description and written qualifications. The Laborer I position
is covered within the American Federation of State, County
and Municipal Employees (“AFSCME”) Local 400 (“Local
400”) bargaining unit, of which Plaintiff was a member.
The collective bargaining agreement (“CBA”) for the relevant
period between the City and Local 400 provides that the City
shall furnish each employee member of Local 400 with a
copy of the existing Work Rules and that any amendments
or additions to the Work Rules shall be discussed with Local
400 and published to its members prior to becoming effective
and that thereafter, any complaint shall be resolved through
the grievance procedure. (See Dkt. No. 96–2, at 64 [Ex.
B to Decl. of Donald Thompson, June 13, 2013].) Section
8.1.4 of the CBA also provides that, “[i]n the event that
an employee receives a written reprimand and one (1) year
elapses without any other disciplinary action being imposed
on the employee, such reprimand shall be removed from the
employee's personal file.
The Work Rules provide, in relevant part, at follows:
VII. Employee Discipline
The City shall not exercise its right to discharge or
otherwise discipline an employee without just cause.
Whenever reasonable, the City shall subscribe to the
principles of progressive discipline. Set forth below are
the guidelines used by the City in enforcing progressive
discipline and determining the appropriate disciplinary
penalty in any particular circumstance. These guidelines
may be deviated from when, in the City's opinion,
circumstances warrant.
MINOR OFFENSES
FIRST, SECOND, THIRD - Write up
FORTH - Write up and one day suspension
FIFTH - Write up and three day suspension
SIXTH - Write up and five day suspension
SEVENTH - Write up and ten day suspension
EIGHTH - Write up and termination
MAJOR OFFENSES
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FIRST - Write up and suspension or termination
SECOND - Write up and suspension or termination
THIRD - Write up and termination
*3 Notwithstanding the provisions of Article 8.1.4 of the
parties ['] collective bargaining agreement, the discipline
imposed for those violations considered to be ‘minor’ shall
be determined by reviewing the number of such violations
for which an employee has been disciplined in the twelve
(12) months preceding the current violation;
However, upon committing a fourth (4th) ‘minor’
violation within the above stated twelve (12) month[ ]
period, then that minor violation and each succeeding
‘minor’ violation shall be based on discipline[ ] received
within the preceding eighteen (18) month period. The
discipline imposed for each succeeding violation shall
be in accordance with progressive discipline as outlined
in the above guidelines;
In all cases of ‘major’ violations which are subject to
suspension and/or termination, the preceding eighteen
(18) months disciplinary record (including ‘minor’
violations) shall be considered in determining the
discipline to be imposed in accordance with those
outlined in the above guidelines.
(Dkt. No. 107–1, at 9–10 [Ex. 1 to Flynn Aff. ].) The
Work Rules expressly provide that “[i]nsubordination is
a major ... violation.” (Id., at 7.) To be sure, the Work
Rules provide that “[t]heft of any City property or services
is prohibited[,]” the level of violation attached to such
conduct is not specified. (Id.) However, Section 9.2.1 of
the CBA refers to fighting, theft, substance abuse and
insubordination as “serious violations.” (See Dkt. No. 96–
2, at 53.)
From July 2006 until he was terminated, Plaintiff was subject
to a series of disciplinary actions by the City. First, in
July 2006, Plaintiff was given a one-day suspension for
insubordination. In February 2007, Plaintiff was given a 20–
day suspension for fighting with another employee. 3 In July
2007, Plaintiff was given a 20–day suspension for theft of
City property. In January 2009, Plaintiff was terminated for
insubordination, but then was brought back to work through
a “last chance” agreement between the City and Local 400. 4
Finally, on February 24, 2010, Plaintiff was terminated for
theft of City Property. Plaintiff does not dispute the fact
of these disciplinary actions, but disputes the bases for the
actions and/or argues that the City applies their policies
inconsistently, discretionarily and disparately.
Defendant, John M. O'Connor, III (“O'Connor”) made the
decision to terminate Plaintiff. O'Connor was appointed
Commissioner of the Department in January 2010 and had
no involvement in Plaintiff's discipline or any employment
actions regarding Plaintiff prior to his termination in
February 2010. Defendant, Jeffrey Wright (“Wright”) was
the Commissioner of the Department through December
2009 and had no involvement in the decision to terminate
Plaintiff in February 2010. Defendant, Thomas Simone, III
(“Simone”) has been the First Deputy Commissioner of the
Department since January 2010. He was not a decision maker
regarding the determination to terminate Plaintiff in February
2010.
*4 Defendant, Donald Thompson (“Thompson”) was the
Director of Personnel during the relevant period. Thompson
asserts by Declaration that he agreed that it was appropriate
to terminate Plaintiff under the circumstances and concurred
with O'Connor's decision in that regard. (See Dkt. No. 96 at
¶¶ 34–35 [Decl. of Donald Thompson, June 13, 2013].) At his
deposition, O'Connor testified regarding his communication
with Thompson prior to terminating Plaintiff, as follows: “I
had [a] conversation with Don Thompson, who told me the
level of progression [Plaintiff] was at and [sic] was instructed
and encouraged that I should investigate, and most likely there
would be termination here.” (Dkt. No. 112, at 56 [Dep. of John
M. O'Connor, III, at 152: 4–8, Jan. 4, 2013].) According to
Plaintiff, O'Connor told him that Don (meaning Thompson)
“said to fire you.” (Dkt. No. 106 at 7–8 [Aff. of Guynell
Wright at ¶ 41].)
During the relevant time period, Defendant, Robert Culkin
(“Culkin”) was the Acting Assistant Superintendent of the
Department's Street Cleaning Bureau and Defendant, Andrew
Nolan (“Nolan”) was Acting Superintendent. Both Culkin
and Nolan assert that they did not initiate the discipline
leading up to Plaintiff's termination, did not participate in the
pretermination hearing and played no role in the decision to
terminate Plaintiff, nor were they consulted by O'Connor for
their input regarding Plaintiff's discipline. (See Dkt. No. 98
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at 8 [Decl. of Andrew Nolan at ¶ 49, June 13, 2013]; Dkt.
No. 100 at 5 [Decl. of Robert Culkin at ¶ 32, June 13, 2013].)
Plaintiff counters that he “personally observed [ ] O'Conn[o]r
go to [ ] Nolan and [ ] C[u]lkin for advice on how to perform
his duties as Commissioner.” (Dkt. No. 106 at 8 [Wright Aff.
¶ 42].)
Prior to his termination in February 2010, Plaintiff was
provided a copy of the notice of the disciplinary charges
against him as well as the possibility that termination would
be considered as a result. Plaintiff was afforded a disciplinary
hearing at which he was given the chance to respond to
the disciplinary charges against him and was permitted
to have union representation present to advocate on his
behalf. Simone was present at Plaintiff's disciplinary hearing.
Although Simone has the authority to advise regarding
discipline, his role at Plaintiff's hearing was as an observer
and gatherer of information.
Also, Plaintiff exercised his procedural right to grieve his
termination. That procedure ran its course according to the
grievance procedure set forth in the CBA and terminated
prior to the final step, when Local 400 voted not to take the
grievance to arbitration.
Plaintiff ultimately filed complaints with the New York State
Division of Human Rights (“DHR”) on March 26, 2010 and
April 28, 2010 challenging his February 2010 termination. 5
(See Dkt. No. 96–33 [Ex. GG to Thompson Decl.].) In
those complaints, Plaintiff alleges that he was suspended
and terminated based on his race and that he was retaliated
against for his prior DHR complaints. Plaintiff alleges that
white employees are treated differently than black employees
in terms of employee discipline. (See id.) On June 3, 2010
and June 10, 2010, respectively, the DHR dismissed those
complaints for administrative convenience. (See Dkt. No. 9'–
13 [Ex. L to Decl. of Aimee Paquette, June 14, 2013]; Dkt.
No. 96–34 [Ex. HH to Thompson Decl.].)
*5 After Plaintiff was terminated, he filed a claim for
unemployment benefits with the Department of Labor
(“DOL”). When the DOL inquired about the circumstances
of Plaintiff's termination, the City responded that he had
been terminated for cause. Plaintiff availed himself of
the administrative appeal process to challenge the DOL's
determination, which was ultimately overturned. Plaintiff
received full payment of back benefits owed.
C. Parties' Briefing on Defendants' Motion
1. Defendants' Memorandum of Law
Generally, in their memorandum of law, the Defendants assert
twelve arguments with regard to Plaintiff's claims against
them. (Dkt. No. 100–8 [Defs.' Mem. of Law].)
First, argue the Defendants, Plaintiff's employment
discrimination claims based on his termination may
be dismissed for the following three reasons: (1) the
discriminatory determination claim against Simone, Wright,
Culkin, Thompson and Nolan should be dismissed because
each was either not the decision maker or was not
otherwise actionably involved in the decision to terminate
Plaintiff; (2) the discriminatory determination claim against
O'Connor and the City should be dismissed because (a)
Plaintiff cannot make out a prima facie case that his
termination was discriminatory, (b) Defendants have come
forward with legitimate, nondiscriminatory reasons for
Plaintiff's termination, and (c) Plaintiff has no evidence that
Defendants' stated reasons for his termination are a pretext
for discrimination; and (3) absent individual liability for
discriminatory termination, no liability will lie against the
City pursuant to Monell v. Dep't of Soc. Servs., 436 U.S. 658,
690, n. 55, 98 S.Ct. 2018 (1978). (Id. at 14–25.)
Second, argue the Defendants, Plaintiffs 18th, 19th, 20th
and 21st causes of action alleging discrimination against
the City for opposing his application for unemployment
benefits may be dismissed for the following three reasons:
(1) there is caselaw supporting the legal conclusion that an
employer's opposition of a former employee's application
for unemployment benefits is not adverse employment
action; (2) where an employer opposes a former employee's
unemployment application, but the employee is ultimately
awarded those benefits, no adverse employment action occurs
in any event; and (3) Plaintiff cannot prove discriminatory
animus in the opposition of his unemployment application
because he failed to seek any discovery or deposition from the
City employee responsible for responding to DOL inquiries.
(Id. at 26–27.)
Third, argue the Defendants, Plaintiff's hostile work
environment claims may be dismissed as a matter of law
for the following five reasons: (1) Plaintiff's Title VII
and NYHRL claims of hostile work environment must be
dismissed for failure to exhaust his administrative remedies
before the DHR; (2) Plaintiff's NYHRL claim must be
dismissed for failure to file a Notice of Claim under Section
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8–115(2) of the City's Charter; (3) all of Plaintiff's hostile
work environment claims must be dismissed because Plaintiff
has failed to identify evidence that his workplace was
permeated with discriminatory intimidation, ridicule and
insult sufficiently severe or pervasive to alter the conditions
of his employment; (4) Plaintiff's hostile work environment
claims against Simone, O'Connor, Wright and Thompson
must be dismissed because there is a lack of evidence of
their personal involvement or discriminatory purpose; and (5)
absent individual liability, no liability will lie against the City
under Section 1981 or 1983 pursuant to Monell. (Id. at 27–
36.)
*6 Fourth, argue the Defendants, there is no claim for
discriminatory overtime in this action for the following
six reasons: (1) the Third Amended Complaint does not
include a claim for discriminatory overtime; (2) any claim for
discriminatory overtime under Title VII and NYHRL must
be dismissed for failure to exhaust administrative remedies
before the DHR; (3) any discriminatory overtime claim under
NYHRL must be dismissed for failure to file a Notice of
Claim under Section 8–115(2) of the City's Charter; (4)
Plaintiff cannot identify any evidence that he was denied
overtime due to discrimination; (5) Plaintiff cannot identify
any evidence that he was denied overtime because of his
race or protected activity; and (6) any claim of discriminatory
overtime against Simone, O'Connor, Wright and Thompson
must be dismissed because none of them was a decision
maker or involved in setting Plaintiff's alleged discriminatory
overtime assignments. (Id. at 36–43.)
Fifth, argue the Defendants, Plaintiff's discrimination and
retaliation claims based on less desirable work assignments
must be dismissed for the following five reasons: (1)
Plaintiff's claimed discriminatory work assignments fail
or do not constitute adverse employment action; (2) any
claim of discriminatory work assignments against Simone,
O'Connor, Wright and Thompson must be dismissed because
none of them was a decision maker or involved in
setting Plaintiff's alleged discriminatory work assignments;
(3) any claim for discriminatory work assignments under
Title VII and NYHRL must be dismissed for failure to
exhaust administrative remedies before the DHR; (4) any
discriminatory claim for discriminatory work assignments
under NYHRL must be dismissed for failure to file a Notice
of Claim under Section 8–115(2) of the City's Charter; and
(5) absent individual liability, no liability will lie against the
City under Section 1981 or 1983 pursuant to Monell. (Id. at
43–48.)
Sixth, argue the Defendants, Plaintiff's discriminatory and
retaliatory discipline claims must be dismissed for the
following six reasons: (1) Plaintiff's claim for discriminatory
and retaliatory discipline under Title VII and NYHRL must
be dismissed for failure to exhaust administrative remedies
before the DHR; (2) Plaintiff's claim for discriminatory and
retaliatory discipline under NYHRL must be dismissed for
failure to file a Notice of Claim under Section 8–115(2) of
the City's Charter; (3) some or all of Plaintiff's claims for
discriminatory and retaliatory discipline are barred by the
relevant statute of limitations; (4) Plaintiff cannot established
that the challenged disciplinary actions were premised on
discriminatory or retaliatory animus; (5) discriminatory
discipline claim against Simone, O'Connor, Nolan, Culkin
and Thompson must be dismissed because none of them was
a decision maker or involved in the discipline of Plaintiff; and
(6) absent individual liability, no liability will lie against the
City under Section 1981 or 1983 pursuant to Monell. (Id. at
48–57.)
*7 Seventh, argue the Defendants, Plaintiff's claims of
discriminatory and retaliatory denial of promotion may
be dismissed for the following six reasons: (1) Plaintiff's
claims for discriminatory denial of promotion under Title
VII and NYHRL must be dismissed for failure to exhaust
administrative remedies before the DHR; (2) Plaintiff's claim
for discriminatory denial of promotion under NYHRL must
be dismissed for failure to file a Notice of Claim under
Section 8–115(2) of the City's Charter; (3) Plaintiff's claims
for discriminatory denial of promotion under Title VII,
NYHRL and Section 1983 must be dismissed because they
are timebarred; (4) Plaintiff cannot establish that the claimed
promotions for which he was passed over were filled based
on discriminatory or retaliatory intent; (5) Plaintiff's claims
for discriminatory denial of promotion against Simone,
Nolan, Culkin, Thompson and O'Connor should be dismissed
because none of them was a decision maker or involved in
the alleged failure to promote Plaintiff to crew leader; and (6)
absent individual liability, no liability will lie against the City
under Section 1981 or 1983 pursuant to Monell. (Id. at 57–
67.)
Eighth, argue the Defendants, Plaintiff's breach of contract
claim must be dismissed because Plaintiff has failed to file a
claim against Local 400, which is a prerequisite to a breach
of contract claim based on a union's breach of its duty of fair
representation. (Id. at 67–68.)
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Ninth, argue the Defendants, Plaintiff's 15th and 16th causes
of action, brought under Section 1983 for violation of
his Fourteenth Amendment right to Due Process may be
dismissed because (1) municipal employees hold no due
process rights to promotions, overtime, discipline or work
assignments; and (2) a municipal employee's liberty interest
in keeping his employment is adequately served where there
is a process available to challenge the employer's deprivation,
such as a grievance procedure. (Id. at 68–70.)
Tenth, argue the Defendants, Plaintiff's 17th cause of action
for violations of the New York State Constitution must be
dismissed because no private right of action exists under the
New York State Constitution where a claim based on the same
allegations is asserted under Section 1983. (Id. at 70–71.)
Eleventh, argue the Defendants, Plaintiff's claim for punitive
damages must be dismissed because no such claim may be
maintained against the City as a matter of law and because
Plaintiff has failed to identify any evidence to establish that
the individual Defendants acted with evil motive or intent.
(Id. at 71.)
Twelfth, argue the Defendants, Plaintiff's claims against John
and Jane Doe defendants must be dismissed because Plaintiff
failed to identify them through amendment of his pleading
prior to the close of discovery. (Id.)
2. Plaintiff's Opposition Memorandum of Law
Generally, in his opposition memorandum of law, Plaintiff
asserts eleven arguments: (1) because Plaintiff asserts claims
under the NYHZL and the New York State Constitution, this
Court should apply New York procedural law when deciding
the pending motion for summary judgment; (2) Defendants'
motion should be denied because there are triable issues
of fact to support Plaintiff's claims that he was unlawfully
discriminated against; (3) Defendants' arguments of failure
to exhaust should be rejected because they rely only on
the formal charges to the DHR rather than Plaintiff's intake
form and handwritten submissions; (4) Plaintiff's hostile
work environment claims should not be dismissed because
there is more than sufficient evidence for a reasonable jury
to conclude that Plaintiff's work environment was filled
with discriminatory intimidation, ridicule and insult that
the terms and conditions of his employment were altered
for the worse; (5) the City Charter's Notice of Claim
provision does not apply to Plaintiff's NYHRL claims;
(6) Plaintiff's claims relating to his unemployment benefits
should not be dismissed because the City's opposition of
Plaintiff's unemployment applications should be deemed
adverse employment action under Burlington N. & Santa
Fe Ry. v. White, 548 U.S. 53, 68, 126 S.Ct. 2405, 2415
(2006); (7) Plaintiff has viable due process claims because the
CBA here only allows Local 400 to seek a post-termination
hearing through arbitration; (8) Plaintiff's breach of contract
claim should not be dismissed because it is a matter of fact
for the jury to decide whether Local 400 breached its duty
of fair representation; (9) Plaintiff's claims under the New
York State Constitution should not be dismissed because the
availability of a federal constitutional or statutory claim does
not render a claim under the New York State Constitution
subordinate; (10) Plaintiff's entitlement to punitive damages
is not suitable for resolution at the summary judgment stage;
and (11) Defendants lack standing to seek dismissal of the
John and Jane Doe defendants. (See Dkt. No. 104 [Pl.'s Opp'n
Memo. of Law].)
3. Defendants' Reply Memorandum of Law
*8 Generally, in their reply memorandum of law,
the Defendants assert eleven arguments: (1) Plaintiff
mischaracterizes his summary judgment burden; (2) Plaintiff
fails to meet his burden with respect to his wrongful
termination claim; (3) Plaintiff fails to oppose, and therefore
concedes, Defendants' argument that no claim exists based
on discriminatory overtime; (4) Plaintiff fails to meet his
burden on his discriminatory promotion claim; (5) Plaintiff
fails to meet his burden on his excessive discipline claim;
(6) Plaintiff fails to meet his burden on his hostile work
environment claim; (7) Plaintiff effectively concedes he has
no discriminatory assignments claim; (8) post-employment
contestation of unemployment benefits is not actionable; (9)
Plaintiff is barred from asserting a contract claim against the
City; (10) Plaintiff does not have a viable due process claim;
and (11) Plaintiff has failed to establish sufficient evidence to
support a Monell claim against the City. (Dkt. No. 124 [Defs.'
Reply Mem. of Law].)
II. GOVERNING LEGAL STANDARDS
A. Motion for Summary Judgment
A motion for summary judgment shall be granted “if 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.” Fed.R.Civ.P. 56(a). In determining whether a genuine
dispute as to a material fact exists, the Court must resolve
all ambiguities and draw all reasonable inferences against
the moving party. See Vermont Teddy Bear Co., Inc. v. 1–
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800 Beargram Co., 373 F.3d 241, 244 (2d Cir.2004) (citing
Adickes v. S.H. Kress & Co., 398 U.S. 144, 157, 90 S.Ct.
1598 (1970)). In addition, “[the moving party] bears the initial
responsibility of informing the district court of the basis for
its motion, and identifying those portions of the ... [record]
which it believes demonstrate[s] the absence of any genuine
issue of material fact.” Celotex v. Catrett, 477 U.S. 317, 323–
24, 106 S.Ct. 2548 (1986). However, when the moving party
has met this initial responsibility, the nonmoving party must
identify evidence in the record that creates a genuine issue of
material fact. See Matsushita Elec. Indus. Co., Ltd. v. Zenith
Radio Corp., 475 U.S. 574, 586, 106 S.Ct. 1348 (1986)).
As for the materiality requirement, a dispute of fact is
“material” if it “might affect the outcome of the suit under
the governing law.” Anderson v. Liberty Lobby, Inc., 477 U.S.
242, 248, 106 S.Ct. 2505 (1986). “Factual disputes that are
irrelevant or unnecessary will not be counted.” Anderson, 477
U.S. at 248 (citation omitted).
As for the genuineness requirement, a dispute of fact is
“genuine” if “the [record] evidence is such that a reasonable
jury could return a verdict for the novmoving party.”
Id. As a result, “[c]onclusory allegations, conjecture and
speculation ... are insufficient to create a genuine issue of
fact.” Kerzer v. Kingly Mfg., 156 F.3d 396, 400 (2d Cir.1998)
(citation omitted; emphasis added). 6 Similarly, inadmissible
hearsay is insufficient to create a genuine issue of fact, “absent
a showing that admissible evidence will be available at trial.”
Burlington Coat Factory Warehouse Corp. v. Esprit De Corp.,
769 F.2d 919, 924 (2d Cir.1985) (citations omitted). 7
B. Legal Standard Governing Unopposed Motions
*9 In this District, when a non-movant fails to oppose a
legal argument asserted by a movant in support of a motion,
the movant's burden with regard to that argument has been
lightened such that, in order to succeed on that argument,
the movant need only show that the argument possesses
facial merit, which has appropriately been characterized as
a “modest” burden. See N.D.N.Y. L.R. 7.1(b) (3) (“Where a
properly filed motion is unopposed and the Court determines
that the moving party has met its burden to demonstrate
entitlement to the relief requested therein....”); Rusyniak
v. Gensini, 07–CV–0279, 2009 WL 3672105, at * 1, n.
1 (N.D.N.Y.Oct.30, 2009) (Suddaby, J.) (collecting cases);
Este–Green v. Astrue, 09–CV–0722, 2009 WL 2473509, at
*2 & n. 3 (N.D.N.Y.Aug.7, 2009) (Suddaby, J.) (collecting
cases).
C. Plaintiff's Claims
1. Title VII
Title VII prohibits an employer from “discriminat[ing]
against any individual with respect to his compensation,
terms, conditions, or privileges of employment, because
of,” inter alia, “such individual's race, color, religion, sex,
or national origin.” 42 U .S.C. § 2000e–2(a)(1). Liability
under Title VII is limited to employers, not individuals. See
Reynolds v. Barrett, 685 F.3d 193, 202 (2d Cir.2012).
Filing a charge with the EEOC is a jurisdictional prerequisite
to a private civil action under Title VII. See Morgan v. NYS
Attorney Gen.'s Office, No. 11–CV–9389, 2013 WL 491525,
at *6 (S.D.N.Y. Feb. 8, 2013) (citing Chin v. Port Auth. of New
York & New Jersey, 685 F.3d 135, 146 (2d Cir.2012) (citing 42
U.S.C. §§ 2000e–5(e) (1), (f)(1))). Claims not raised before
the EEOC may still be brought in federal court as long as
they are “reasonably related” to the claims that were filed with
the agency. See id. (quoting Butts v. N.Y.C. Dep't of Hous.
Pres. & Dev., 990 F.2d 1397, 1401 (2d Cir.1993), superseded
by statute on other grounds as recognized in Hawkins v.
1115 Legal Serv. Care, 163 F.3d 684 (2d Cir.1998)). A claim
is “reasonably related” where the conduct complained of
“would fall within the scope of the EEOC investigation which
can reasonably be expected to grow out of the charge of
discrimination.” Butts, 990 F.2d at 1402. When determining
whether a claim is reasonably related to the claims filed with
the EEOC, courts should focus “on the factual allegations
made in the EEOC charge itself, describing the discriminatory
conduct about which a plaintiff is grieving,” and “whether
the complaint filed with the EEOC gave that agency adequate
notice to investigate discrimination on both bases.” Williams
v. New York City Housing Auth., 458 F.3d 67, 70 (2d Cir.2006)
(internal alteration and citation omitted). “[I]t is the substance
of the charge and not its label that controls.” Mathirampuzha
v. Potter, 548 F.3d 70, 76–77 (2d Cir.2008) (quoting Deravin
v. Kerik, 335 F.3d 195, 200–01 (2d Cir.2003)). “The central
question is whether the complaint filed with the [EEO] gave
th[e] agency adequate notice to investigate discrimination
on both bases.” Mathirampuzha, 548 F.3d at 76–77 (citing
Williams, 458 F.3d at70).
a. Hostile Work Environment
*10 In enacting Title VII, Congress intended to protect
against “the entire spectrum of disparate treatment of men and
women in employment, which includes requiring people to
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work in a discriminatorily hostile or abusive environment.”
Redd v. New York Div. of Parole, 678 F.3d 166, 174–175 (2d
Cir.2012) (citing Harris v. Forklift Sys., Inc., 510 U.S. 17, 21,
114 S.Ct. 367 (1993)).
In order to establish a claim for a hostile work environment
under Title VII, the underlying harassment alleged “must
be sufficiently severe or pervasive,” both subjectively and
objectively, “to alter the conditions of [the plaintiff's]
employment and create an abusive working environment.”
Redd, 678 F.3d at 175 (quoting Meritor Sav. Bank, FSB v.
Vinson, 477 U .S. 57, 67, 106 S.Ct. 2399 (1986); Harris,
510 U.S. at 21–22, 114 S.Ct. 367). Further, the plaintiff must
establish that the hostile or abusive treatment was because of
his membership in a class of persons protected by Title VII.
See Redd, 678 F.3d at 175.
A determination of whether an environment is objectively
hostile or abusive requires an evaluation of all the
circumstances, such as “the frequency of the discriminatory
conduct; its severity; whether it is physically threatening
or humiliating, or a mere offensive utterance; and
whether it unreasonably interferes with an employee's work
performance.” Redd, 678 F.3d at 175 (citing Harris, 510 U.S.
at 23, 114 S.Ct. 367). Whether an environment is subjectively
hostile or abusive may be determined by the effect on the
plaintiff's psychological well-being, although no single factor
is required. See id.
In order to establish his claim for hostile work environment,
a plaintiff need not show that his “working environment was
both severe and pervasive; only that it was sufficiently severe
or sufficiently pervasive, or a sufficient combination of these
elements, to have altered h[is] working conditions.” Redd,
678 F.3d at 175 (quoting Pucino v. Verizon Commc'ns, Inc.,
618 F.3d 112, 119 (2d Cir.2010)). Typically, isolated incidents
will not suffice to establish a hostile work environment,
“although we have often noted that even a single episode
of harassment can establish a hostile work environment if
the incident is sufficiently severe.” Redd, 678 F.3d at 175–
176 (citing, inter alia, Feingold v. New York, 366 F.3d 138,
150 (2d Cir.2004) (“[A] single act can create a hostile work
environment if it in fact work[s] a transformation of the
plaintiff's workplace.” (internal quotation marks omitted)).
“For racist comments, slurs, and jokes to constitute a hostile
work environment, there [generally] must be more than a few
isolated incidents of racial enmity.” Schwapp v. Town of Avon,
118 F.3d 106, 110 (2d Cir.1997) (quotation marks omitted).
It is important to keep in mind, however, that “while
the central statutory purpose of Title VII was eradicating
discrimination in employment, Title VII does not set forth
a general civility code for the American workplace.” Redd,
678 F.3d at 176 (quoting Franks v. Bowman Transp. Co., 424
U.S. 747, 771, 96 S.Ct. 1251 (1976); Burlington Northern
& Santa Fe Ry. Co. v. White, 548 U.S. 53, 68, 126 S.Ct.
2405 (2006). Title VII is “meant to protect individuals from
abuse and trauma that is severe[, but is] not intended to
promote or enforce civility, gentility or even decency.” Taylor
v. New York City Dept. of Educ ., No. 11–CV–3582, 2012 WL
3150388, at *8 (E.D.N.Y. Aug. 2, 2012) (quoting Curtis v.
DiMaio, 46 F.Supp.2d 206, 213–14 (E.D.N.Y.1999)). Thus,
“the ‘mere utterance of an epithet which engenders offensive
feelings' is insufficient to sustain a hostile work environment
claim.” Tolbert v. Smith, 09–CV–6579, 2014 WL 906158,
at *19 (W.D.N.Y. Mar. 7, 2014) (quoting Hannon v. Wilson
Greatbatch, Ltd., No. 00–CV–0203, 2002 WL 1012971, *7
(W.D.N.Y. Apr. 24, 2002). See also Brown v. Coach Stores,
Inc., 163 F.3d 706 (2d Cir.1998) (occasional offensive racial
comments are not sufficiently severe or pervasive to establish
a hostile work environment).
*11 In addition to showing that he was subjected to a
hostile work environment, a plaintiff must also establish that
the conduct which created the hostile environment may be
imputed to his employer. See Shiner v. State Univ. of New
York, No. 11–CV–1024, 2012 WL 5398658, at *4 (W.D.N.Y.
Nov. 2, 2012) (citing Leopold v. Baccarat, Inc., 239 F.3d 243,
245 (2d. Cir.2001)).
The actions of a plaintiff's coworkers will be imputed to
the employer if the employer “either provided no reasonable
avenue for complaint or knew of the harassment but did
nothing about it.” Wiercinski v. Mangia 57, Inc., No. 09–CV–
4413, 2012 WL 2319142, at * 10 (E.D.N.Y. June 19, 2012)
(quoting Murray v. N.Y. Univ. Coll. of Dentistry, 57 F.3d 243,
249 (2d Cir.1995)).
However, the actions of a plaintiff's supervisor are
“automatically imputed to the employer unless the employer
is able to successfully raise an affirmative defense that
examines the reasonableness of the conduct of both the
employer and the employee.” Shiner, 2012 WL 5398658,
at *4. This defense requires the employer to show that
it “exercised reasonable care to prevent and correct any
harassing behavior” and that the plaintiff “unreasonably
failed to take advantage of any preventive or corrective
opportunities provided by the employer to avoid harm
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otherwise.” Faragher v. City of Boca Raton, 524 U.S. 775,
807, 118 S.Ct. 2275 (1998); Burlington Indus. v. Ellerth, 524
U.S. 742, 765, 118 S.Ct. 2257 (1998).
Where an employer “maintains a policy against [ ] harassment
and provides a process through which employees can
complain about violations of that policy,” it will have met
the first prong of its affirmative defense. Joyner v. City
of New York, No. 11–CV–4958, 2012 WL 4833368, at *3
(S.D.N.Y. Oct. 11, 2012). Further, where a plaintiff fails
to take advantage of that system until more than a year
after the alleged harassment began, and where the offensive
conduct ceased once plaintiff reported it, an employer will
establish the second prong of its defense. See Joyner, 2012
WL 4833368, at *3 (citing Leopold, 239 F.3d at 246).
b. Race Discrimination and Disparate Treatment
At the summary judgment stage, properly exhausted Title
VII claims are ordinarily analyzed under the familiar burden-
shifting framework of McDonnell Douglas Corp. v. Green,
411 U.S. 792, 93 S.Ct. 1817 (1973), and its progeny. See
Mathirampuzha, 548 F.3d at 78 citing St. Mary's Honor
Center v. Hicks, 509 U.S. 502, 506–07, 113 S.Ct. 2742
(1993); Texas Dep't of Cmty. Affairs v. Burdine, 450 U.S.
248, 252–53, 101 S.Ct. 1089 (1981)). At the first stage of the
McDonnell Douglas analysis, the plaintiff bears the burden
to show that “(1) he is a member of a protected class; (2)
he was qualified for the position he held; (3) he suffered
an adverse employment action; and (4) the adverse action
took place under circumstances giving rise to an inference
of discrimination.” Bir v. Pfizer, Inc., 510 F. App'x 29, 30
(2d Cir.2013) (quoting Reynolds v. Barrett, 685 F.3d 193,
202 (2d Cir.2012) (internal quotation marks and alteration
omitted)). “A showing of disparate treatment—that is, a
showing that the employer treated plaintiff less favorably than
a similarly situated employee outside his protected group—is
a recognized method of raising an inference of discrimination
for purposes of making out a prima facie case.” Mandell v.
County of Suffolk, 316 F.3d 368, 379 (2d Cir.2003).
*12 In order to establish a prima facie case of discrimination
based on failure to promote under Title VII, a plaintiff
ordinarily must demonstrate that: “(1) [he] is a member of
a protected class; (2)[he] applied and was qualified for a
job for which the employer was seeking applicants; (3)[he]
was rejected for the position; and (4) the position remained
open and the employer continued to seek applicants having
the plaintiff's qualifications.” Yu v. New York City Housing
Development Corp., 494 F. App'x 122, 124–125 C.A.2 (2d
Cir.2012) (quoting Estate of Hamilton v. City of New York,
627 F.3d 50, 55 (2d Cir.2010) (quotation marks omitted).
Once a plaintiff establishes a prima facie case, the burden
shifts to the employer to provide a legitimate non-
discriminatory reason for the employment action at issue.
See Bir, 2013 WL 362973, at*1 (citing Reeves v. Sanderson
Plumbing Prods., Inc., 530 U.S. 133, 142, 120 S.Ct. 2097
(2000)). If the employer makes this showing, the burden
then shifts back to the plaintiff to show that the employer's
proffered explanation is a pretext for discrimination. Id.
(citing Ruiz v. Cnty. of Rockland, 609 F.3d 486, 492 (2d
Cir.2010)).
“ ‘A plaintiff sustains an adverse employment action if he
or she endures a materially adverse change in the terms
and conditions of employment. To be materially adverse a
change in working conditions must be more disruptive than
a mere inconvenience or an alteration of job responsibilities.’
A change that is ‘materially adverse’ could consist of, inter
alia, ‘termination of employment, a demotion evidenced by
a decrease in wage or salary, a less distinguished title, a
material loss of benefits, significantly diminished material
responsibilities, or other indices ... unique to a particular
situation.’ “ Morgan, 2013 WL 491525, at *5 (quoting
Galabya v. New York City Bd. of Educ., 202 F.3d 636, 640 (2d
Cir.2000)).
c. Retaliation
To make out a prima facie case of retaliation under Title
VII, a plaintiff must show [the following]: (1) participation
in a protected activity known to Defendants; (2) an adverse
employment action; and (3) a causal connection between the
two.” Schanfield v. Sojitz Corp. of Am., 663 F.Supp.2d 305,
341 (S.D.N.Y.2009) (collecting cases).
“The term ‘protected activity’ refers to action taken to protest
or oppose statutorily prohibited discrimination.” Cruz v.
Coach Stores, Inc., 202 F.3d 560, 566 (2d Cir.2000) (noting
that a protected activity need not “rise to the level of a formal
complaint in order to receive statutory protection”). Protected
activities encompass “making complaints to management,
writing critical letters to customers, protesting against
discrimination by industry or by society in general, and
expressing support of co-workers who have filed formal
charges.” Sumner v. United States Postal Serv., 899 F.2d
203, 209 (2d Cir.1990). A plaintiff “need not establish that
the conduct [he] opposed was in fact a violation of [the
law],” Bush v. Fordham Univ., 452 F.Supp.2d 394, 416
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(S.D.N.Y.2006), but he must demonstrate a “good faith,
reasonable belief that the underlying challenged actions of
the employer violated the law,” id. (quoting Sumner, 899 F.2d
at 209). The reasonableness of a plaintiff's belief is to be
assessed in light of the totality of the circumstances. See Reed
v. A.W. Lawrence & Co., 95 F.3d 1170, 1178 (2d Cir.1996).
*13 Adverse employment action is any employer action
that “well might have dissuaded a reasonable worker from
making or supporting a charge of discrimination.” Burlington
N. & Santa Fe Ry. v. White, 548 U.S. 53, 68, 126 S.Ct.
2405, 2415 (2006). “[T]ermination is an adverse employment
action.” Sista v. CDC Ixis N. Am., Inc., 445 F.3d 161, 169
(2d Cir.2006). Similarly, being laid off constitutes adverse
employment action. See Galabya, 202 F.3d at 640; Walker
v. City of New York, 98–CV–2695, 2002 WL 31051534, at
*4 (E.D.N.Y. July 22, 2002) (“Plaintiff's temporary lay-off
during the summer of 1997[was] sufficient to meet Plaintiff's
burden of putting forth evidence to show that the terms of her
employment were altered.”).
A plaintiff may establish a causal connection between the
protected activity and the adverse employment action “either
(1) directly, through evidence of retaliatory animus directed
against the plaintiff by the defendant[,] or (2) indirectly, by
showing that the protected activity was followed closely by
discriminatory treatment.” Schanfield, 663 F.Supp.2d at 343
(citing Knight v. City of New York, 303 F.Supp.2d 485, 496
(S.D.N.Y.2004)).
“Direct evidence giving rise to an inference of discrimination
may include ‘a showing that the employer criticized the
plaintiff's performance in ethnically degrading terms, made
invidious comments about others in the employee's protected
group, or treated employees not in the protected group more
favorably.’ “ Id. (quoting Hunter v. St. Francis Hosp., 281
F.Supp.2d 534, 542 (E.D.N.Y.2003)).
In order for a court to “accept mere temporal proximity
between an employer's knowledge of protected activity and an
adverse employment action as sufficient evidence of causality
to establish a prima facie case,” the temporal proximity
must be “very close.” Clark Cnty. Sch. Dist. v. Breeden,
532 U.S. 268, 273, 121 S.Ct. 1508 (2001) (citing cases
finding temporal proximity of three months and more to be
insufficient).
Claims of retaliation under Title VII are governed by the
burden-shifting analysis announced in McDonnell Douglas,
411 U.S. at 802, 93 S.Ct. 1817. See Guzman v. News Corp.,
No. 09–CV–9323, 2013 WL 5807058, at * 19 (S.D.N.Y. Oct.
28, 2013) (citing Fincher v. Depository Trust & Clearing
Corp., 604 F.3d 712, 720 (2d Cir.2010); Lennert–Gonzalez
v. Delta Airlines, Inc., No. 11–CV–1459, 2013 WL 754710,
at *9 (S.D.N.Y. Feb. 28, 2013)). See also Puglisi v. Town of
Hempstead, 545 F. App'x 23, ––––, 2013 WL 5663223 (2d
Cir. Oct. 18, 2013) (discussing Title VII retaliation claim in
context of McDonnell–Douglas burden-shifting framework).
“Under McDonnell Douglas, once the plaintiff has
established a prima facie case of retaliation, the burden of
production shifts to the defendant to proffer a legitimate,
nondiscriminatory business rationale to justify its adverse
employment action.” Schanfield, 663 F.Supp.2d at 343.
*14 If the employer demonstrates a legitimate, non-
discriminatory reason, then the burden shifts back to the
plaintiff to show that, ‘but for’ the protected activity, she
would not have been terminated. Univ. of Tex. Southwestern
Med. Ctr. v. Nassar, 133 S.Ct. 2517, 2534 (2013). The
Supreme Court recently clarified that ‘a plaintiff making
a retaliation claim under [Title VII] must establish that
his or her protected activity was a but-for cause of the
alleged adverse action by the employer,’ as distinct from
‘a motivating factor,’ which had previously been the
standard in the Second Circuit. Id. at 2534; see Kessler v.
Westchester Cnty. Dep't of Soc. Servs., 461 F.3d 199, 206
(2d Cir.2006).
Guzman, 2013 WL 5807058, at * 19. See also Puglisi, 2013
WL 5663223; Leacock v. Nassau Health Care Corp., No.
08–CV–2401, 2013 WL 4899723, at *11 (E.D.N.Y. Sept.
11, 2013); Wesley–Dickson v. Warwick Valley Cent. Sch.
Dist., ––– F.Supp.2d. ––––, ––––, 2013 WL 5338516, at *18
(S.D.N.Y.2013).
2. NYHRL
“Because New York courts require the same standard of proof
for claims brought under the NYHRL as for those brought
under Title VII,” those claims may be analyzed in tandem.
Leopold v. Baccarat, Inc. 174 F.3d 261, 264, n. 1 (citing
Tomka v. Seiler Corp., 66 F.3d 1295, 1304, n. 4 (2d Cir.1995),
abrogated on other grounds by Burlington Indus., 524 U.S.
742, 118 S.Ct. 2257). See also Salmon v. Our Lady of Victory
Hosp., 514 F.3d 217, 226, n. 2 (2d Cir.2008). Accordingly, a
court's ruling regarding a plaintiff's Title VII claims applies
with equal force to those claims under the NYHRL. See
Leopold, 174 F.3d at 264, n. 1.
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Under the NYHRL, however, a plaintiff may allege claims
against an individual defendant as an aider or abettor of
NYHRL violations. In order for a plaintiff to recover
against an aider or abettor of NYHRL violations, she must
establish “(1) that [ ]he engaged in conduct protected by
the NYHRL; (2) there is a causal connection between the
protected conduct and the alleged [violations] of the NYHRL;
and (3) that [the defendant] ‘actually participated’ in the
discrimination.” Beattie v. Guilderland Cent. Sch. Dist., 124
F.Supp.2d 802, 805 (N.D.N.Y.2000) (citations omitted). See
also N.Y. Exec. Law § 296.1(a) (McKinney 2012). Further,
a plaintiff must show that the defendant “aided or abetted
a primary violation of the NYHRL committed by another
employee or the business itself.” Jordan v. Cayuga Cnty.,
No. 01–CV1037, 2004 WL 437459, at *4 (N.D.N.Y. Feb. 9,
2004) (quoting Bennett v. Progressive Corp., 225 F.Supp.2d
190, 213 (N.D.N.Y.2002) (internal quotation and emphasis
omitted)). See DeJohn v. Wal–Mart Stores East, LP, No.
09–CV–1315, 2012 WL 3679204, at * 16 (N.D.N.Y. Aug.
17, 2012). However, an individual cannot be held liable for
aiding and abetting their own violations of the NYHRL.
See Reid v.. Ingerman Smith LLP, 876 F.Supp.2d 176, 186
(E.D.N.Y.2012). Finally, an employee is not individually
subject to suit as an aider or abettor under the NYHRL “if he
is not shown to have any ownership interest or any power to
do more than carry out personnel decisions made by others.”
Miotto v. Yonkers Public Schools, 534 F.Supp.2d 422, 427
(S.D.N.Y.2008) (quoting Patrowich v. Chemical Bank, 63
N.Y.2d 541, 483 N.Y.S.2d 659, 660, 473 N.E.2d 11 (1984)).
See also Tomka, 66 F.3d at 1317.
3. 42 U.S.C. § 1983
*15 In order to establish a claim pursuant to 42 U.S.C.
§ 1983, a plaintiff must show “(1) that some person has
deprived him of a federal right, and (2) that the person who has
deprived him of that right acted under color of state ... law.”
Velez v. Levy, 401 F.3d 75, 84 (2d Cir.2005) (quoting Gomez
v. Toledo, 446 U.S. 635, 640, 100 S.Ct. 1920 (1980) (internal
quotations omitted)). “Section 1983 is not itself a source
of substantive rights[,] but merely provides a method for
vindicating federal rights elsewhere conferred[.]” Patterson v.
County of Oneida, 375 F.3d 206, 225 (2d Cir.2004) (quoting
Baker v. McCollan, 443 U.S. 137, 144 n. 3, 99 S.Ct. 2689
(1979)).
“[P]ersonal involvement of defendants in alleged
constitutional deprivations is a prerequisite to an award
of damages under § 1983.” Kregler v. City of New
York, 821 F.Supp.2d 651, 655–656 (S.D.N.Y.2011) (quoting
Wright v. Smith, 21 F.3d 496, 501 (2d Cir.1994) (internal
quotation marks omitted)). A plaintiff may allege the personal
involvement of a defendant who occupies a supervisory
position by alleging that the defendant: “(1) directly
participated in the infraction; (2) failed to remedy the wrong
after learning of the violation; (3) created a policy or custom
under which unconstitutional practices occurred, or allowed
such a policy or custom to continue; (4) was grossly negligent
in managing subordinates who caused the unlawful condition
or event; or (5) exhibited ‘gross negligence’ or ‘deliberate
indifference’ to the constitutional rights of [the plaintiff] by
having actual or constructive notice of the unconstitutional
practices and failing to act.” Kregler, 821 F.Supp.2d at 655–
56 (citing Colon v. Coughlin, 58 F.3d 865, 873 (2d Cir.1995);
Wright, 21 F.3d at 501).
A municipality may only be liable on a § 1983 claim “if
the deprivation of the plaintiff's rights under federal law is
caused by a governmental custom, policy, or usage of the
municipality.” Jones v. Town of East Haven, 691 F.3d 72,
80 (2d Cir.2012) (citing Monell v. Dep't of Soc. Servs., 436
U.S. 658, 690–91, 98 S.Ct. 2018 (1978)). In the absence of
such a custom or policy, a municipality may not be held
liable on a § 1983 claim for the actions of its employees
under a theory of vicarious liability. See Jones, 691 F.3d at 80
(citing Monell, 436 U.S. at 691, 98 S.Ct.2018). Thus, isolated
acts of municipal employees are typically not sufficient to
establish municipal liability. However, acts done “pursuant to
municipal policy, or [that] were sufficiently widespread and
persistent to support a finding that they constituted a custom,
policy, or usage of which supervisory authorities must have
been aware” would justify liability of the municipality. Jones,
691 F.3d at 81. Further, “a municipal custom, policy, or usage
would be inferred from evidence of deliberate indifference of
supervisory officials to such abuses.” Id.
a. First Amendment Retaliation
*16 “[T]he First Amendment protects a public employee's
right, in certain circumstances, to speak as a citizen addressing
matters of public concern.” Dillon v. Suffolk Cnty. Dep't
of Health Servs., 917 F.Supp.2d 196, 205 (E.D.N.Y.2013)
(quoting Garcetti v. Caballus, 547 U.S. 410, 417, 126
S.Ct. 1951 (2006)). In order to establish a claim for First
Amendment retaliation, a public employee must show that
(1) he engaged in “constitutionally protected speech” because
he spoke as a citizen on a matter of public concern; (2) he
suffered an adverse employment action; and (3) the speech at
issue was a substantial or motivating factor in the decision.
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Dillon, 2013 WL 208950, at *6 (quoting Johnson v.. Ganim,
342 F.3d 105, 112 (2d Cir.2003)). The threshold inquiry is
whether the employee spoke as a citizen on a matter of public
concern. “If the answer is no, the employee has no First
Amendment cause of action based on his or her employer's
reaction to the speech.” Garcetti, 547 U.S. at 418. “The
Supreme Court has defined ‘a matter of public concern’ as
one that ‘relat[es] to any matter of political, social, or other
concern to the community.’ “ Sousa v. Roque, 578 F.3d 164,
170 (2d Cir.2009) (quoting Connick v. Myers, 461 U.S. 138,
146, 103 S.Ct. 1684 (1983)).
In the context of a First Amendment retaliation claim, an
adverse action is any “retaliatory conduct that would deter
a similarly situated individual of ordinary firmness from
exercising his or her constitutional rights [.]” Zelnik v.
Fashion Inst. of Tech., 464 F.3d 217, 225 (2d Cir.2006).
Such actions can include “discharge, refusal to hire, refusal
to promote, demotion, reduction in pay, and reprimand,” or
may include “lesser actions” such as “negative evaluation
letters, express accusations of lying, assignment of lunchroom
duty, reduction of class preparation periods, failure to
process teacher's insurance forms, transfer from library to
classroom teaching as an alleged demotion, and assignment to
classroom on fifth floor which aggravated teacher's physical
disabilities.” Zelnik, 464 F.3d at 226 (quoting Morris v.
Lindau, 196 F.3d 102, 110 (2d Cir.1999)).
b. Equal Protection
A plaintiff may establish a claim for the violation of her
right to equal protection under the Fourteenth Amendment
based on race discrimination, since the Equal Protection
Clause is “essentially a direction that all persons similarly
situated should be treated alike.” City of Cleburne v. Cleburne
Living Ctr., Inc., 473 U.S. 432, 439 (1985). “Once action
under color of state law is established, the analysis for such
claims is similar to that used for employment discrimination
claims brought under Title VII, the difference being that a §
1983 claim, unlike a Title VII claim, can be brought against
individuals.” Demoret v. Zegarelli, 451 F.3d 140, 149 (2d
Cir.2006) (quoting Feingold, 366 F.3d at159 & n. 20). Thus,
claims for hostile work environment and disparate treatment
may be brought under § 1983 as equal protection claims. See
Demoret, 451 F.3d at 149. However, a claim of retaliation for
complaining of race discrimination is not properly brought
under the Equal Protection Clause. See Bernheim v. Litt, 79
F.3d 318, 323 (2d Cir.1996).
c. Due Process
*17 The Due Process Clause of the Fourteenth Amendment
essentially provides that no state shall “deprive any person
of life, liberty, or property, without due process of law.”
U.S. Const. amend. XIV, § 1. Thus, in order to prevail on
a due process cause of action, a plaintiff must establish
the deprivation of some tangible property or liberty interest.
See Patterson v. City of Utica, 370 F.3d 322, 329–30 (2d
Cir.2004) (“stigma plus” claim requires a showing of the loss
of one's reputation coupled with a more tangible liberty or
property interest); DeMuria v. Hawkes, 328 F.3d 704, 705
(2d Cir.2003) (substantive due process claim requires plaintiff
to identify the deprivation of a protected liberty or property
interest, in addition to the requisite consciousshocking
behavior on the part of the government); McMenemy v. City of
Rochester, 241 F.3d 279, 285–286 (2d Cir.2001) (to establish
a procedural due process claim, plaintiff must show that he
possessed a protected liberty or property interest, of which he
was deprived without due process).
When an individual claims to have a property interest related
to employment, courts may look to the relevant contract
of employment-either explicit or implicit-or its functional
equivalent to determine whether the individual has such a
property interest. See Board of Regents v. Roth, 408 U.S. 564,
578, 92 S.Ct. 2701 (1972); Ciambriello v. County of Nassau,
292 F.3d 307, 314 (2d Cir.2002).
Where a government employee has a constitutionally
protected property interest in his employment, “some kind of
hearing [is required] prior to [termination].” Cleveland Bd. of
Educ. v. Loudermill, 470 U.S. 532, 542, 105 S.Ct. 1487 (1985)
(internal quotation marks and citation omitted).
However, in general, something less
than a full evidentiary hearing is
sufficient prior to adverse action.
Before being terminated, the tenured
public employee is entitled to oral or
written notice of the charges against
him, an explanation of the employer's
evidence, and an opportunity to
present his side of the story. As
long as a full post-termination hearing
is provided for, the pre-termination
hearing may be minimal.
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Arteta v. Cnty. of Orange, 141 F. App'x. 3, 7 (2d Cir.2005)
(citing Loudermill, 470 U.S. at 545–46, 105 S.Ct. 1487;
Locurto v. Safir, 264 F.3d 154, 173–74 (2d Cir.2001))
(quotations omitted).
It is a well-established legal principle in the Second Circuit
“that there is no [procedural] due process violation where ...
pre-deprivation notice is provided and the deprivation at
issue can be fully remedied through the grievance procedures
provided for in a collective bargaining agreement.” Adams v.
Suozzi, 517 F.3d 124, 128 (2d Cir.2008) (citing cases). See
also Coollick v. Hughes, 699 F.3d 211, 217 (2d Cir.2012).
A government employee may have a cause of action for
violation of his right to substantive due process where a
government defamation occurs in the course of dismissal
from employment resulting in a deprivation of a liberty
interest, commonly referred to as a stigma plus claim. See
Lawson v. Rochester City Sch. Dist., 446 F. App'x. 327, 329
(2d Cir.2011) (citing Patterson, 370 F.3d at 330). In order to
prevail on such a claim, a plaintiff must prove (1) the utterance
of a statement injurious to his reputation that is capable of
being proved false and that plaintiff claims is false; and (2)
some tangible and material state-imposed burden in addition
to the stigmatizing statement. See Monserrate v. N.Y. State
Senate, 599 F.3d 148, 158 (2d Cir.2010). “An employee's
liberty interest is not ordinarily implicated by statements in
connection with his termination of employment if there has
been no public disclosure of the reasons for the discharge.”
Walsh v. Suffolk Cnty. Police Dep't, 341 F. App'x 674, 675
(2d Cir.2009) (citing Bishop v. Wood, 426 U.S. 341, 348, 96
S.Ct. 2074, 48 (1976) (“Since the ... communication was not
made public, it cannot properly form the basis for a claim
that petitioner's interest in his ‘good name, reputation, honor,
or integrity’ was thereby impaired.”). Moreover, a plaintiff
cannot prevail on a substantive due process claim unless
he shows that the defendants infringed a liberty interest in
an arbitrary or irrational manner and in such a way as to
“shock the conscience.” Smith v. Half Hollow Hills Cent.
School Dist., 298 F.3d 168, 173 (2d Cir.2002). See also
Harlen Assocs. v. Inc. Vill. of Mineola, 273 F.3d 494, 503 (2d
Cir.2001).
4. 42 U.S.C. § 1981
*18 Employment discrimination claims brought under
Section 1981, like those brought under Section 1983, are
subject to the same substantive standards as claims brought
pursuant to Title VII and NYHRL. See Jackson v. City of New
York, No. 11–CV–3028, 2014 WL 1010785, at *4 (E.D.N.Y.
Mar. 17, 2014). Procedurally, employment discrimination
claims brought pursuant to Sections 1981 and 1983 are also
analyzed under the McDonnell Douglas framework. See id. 8
Finally, Section 1981 claims against a municipality, like
Section 1983 claims, are subject to analysis under Monell. See
Lang. v. New York City Health & Hosps. Corp., No. 12–CV–
5523, 2013 WL 4774751, at * 5 (S.D.N.Y. Sept. 5, 2013).
5. New York State Constitution
Where claims are brought pursuant to the New York State
Constitution that mirror claims brought under Section 1983,
courts in this Circuit have held that there is no private right
of action on the state constitutional claims. See Canzoneri
v. Incorporated Vill. of Rockville Ctr., 2013 WL 6330671,
at *11 (E.D.N.Y. Dec. 5, 2013) (citing Krug v. Cnty. of
Rennselaer, 559 F.Supp.2d 223, 247–48 (N.D.N.Y.2008)).
See also Clayton v. City of Poughkeepsie, 2007 WL 2154196,
at *7 (S.D.N.Y. June 21, 2007) (quoting De Vito v. Barrant,
No. 03–CV–1927, 2005 WL 2033722, at *6–7 (E.D.N.Y.
Aug. 23, 2005)); Flores v. City of Mount Vernon, 41 F.Supp.2d
439, 446–47 (S.D.N.Y.1999).
II. ANALYSIS
A. Whether A Discriminatory Overtime Claim Exists
in This Action
After carefully considering the matter, the Court answers this
question in the negative, for the reasons stated by Defendants
in their memorandum of law. (Dkt No. 100–8 at 36–43
[Defs.' Mem. of Law].) To those reasons, the Court adds the
following points.
Plaintiff fails to plead a claim for discriminatory overtime in
his Third Amended Complaint. Moreover, Plaintiff has failed
to oppose Defendants' motion for summary judgment in this
regard. As indicated above in Point II.B. of this Decision and
Order, in this District, when a non-movant fails to oppose a
legal argument asserted by a movant in support of a motion,
the movant's burden with regard to that argument has been
lightened such that, in order to succeed on that argument,
the movant need only show that the argument possesses
facial merit, which has appropriately been characterized as
a “modest” burden. At the very least, Defendants have met
the lightened burden that was created by Plaintiff's failure to
respond.
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In any event, the Court would reach the same conclusion even
if it were to subject the Defendants' argument to the more
rigorous scrutiny appropriate for a contested argument. The
only evidence of Plaintiff being denied overtime occurred
in January 2006, before the period that is relevant to the
claims in this action. Moreover, the evidence reflects that
Plaintiff grieved the issue, which was resolved in his favor.
Accordingly, there is no evidence that Plaintiff endured a
materially adverse change in the terms and conditions of his
employment as it relates to overtime. Therefore, Defendants'
motion for summary judgment on any claim of discriminatory
or retaliatory denial of overtime is granted.
B. Whether Plaintiff's Claims Under Article I of the
New York State Constitution Must Be Dismissed
*19 After carefully considering the matter, the Court
answers this question in the affirmative, for the reasons stated
by Defendants in their memorandum of law. (Dkt No. 100–8
at 70–71 [Defs.' Mem. of Law].) To those reasons, the Court
adds the following points.
First, Plaintiff's purported claim under the New York State
Constitution is that Defendants deprived him of his rights
under Article I, essentially claiming a violation of the
entire Bill of Rights. Accordingly, Plaintiffs' New York
Constitutional claim is overly broad and therefore, should
be dismissed for failure to state a claim. In an abundance
of caution, the Court interprets Plaintiff's Third Amended
Complaint to allege claims under Article I, Sections 6 (due
process), 8 (freedom of speech), and 11 (equal protection).
Second, and in any event, as indicated above in Point II.C.5. of
this Decision and Order, where Plaintiff's state constitutional
claims mirror claims brought under Section 1983, courts
in this Circuit have held that there is no private right of
action on the state constitutional claims. Accordingly, for this
reason alone, Defendants' motion for summary judgment on
Plaintiff's 17th cause of action under the New York State
Constitution is granted.
C. Whether Plaintiff's Claims Against John Doe(s)
and Jane Doe(s) Must Be Dismissed
After carefully considering the matter, the Court answers
this question in the affirmative, for the reason stated by
Defendants in their memorandum of law. (Dkt No. 100–8 at
71 [Defs.' Mem. of Law].) To that reason, the Court adds the
following point.
In opposition to Defendants' legally supported motion for
summary judgment seeking dismissal of the John and Jane
Doe defendants Plaintiff makes the bald and completely
unsupported assertion that Defendants “have no standing” in
that regard. (Dkt. No. 104 at 22 [Pl.'s Mem. of Law].) Plaintiff
does not dispute that discovery in this action, which lasted
in excess of two years, is complete, nor does he argue that
further discovery would reveal the identity of these unnamed
defendants. Accordingly, the completion of discovery and
Plaintiff's failure to identify the John and Jane Doe defendants
mandates their dismissal. See Epps v. City of Schenectady, No.
10–CV–1101, 2013 WL 717915, at *5 (N.D.N.Y. Feb. 27,
2013). Therefore, Defendants' motion for summary judgment
is granted in this regard.
D. Whether Plaintiff's Breach of Contract Claim
Against Defendants Must Be Dismissed
After carefully considering the matter, the Court answers
this question in the affirmative, for the reason stated by
Defendants in their memorandum of law. (Dkt No. 100–8 at
67–68 [Defs.' Mem. of Law].) To that reason, the Court adds
the following point.
In opposition to Defendants' motion in this regard, Plaintiff
cites inapposite caselaw and fails to address the point made
by Defendants, which is that in order to pursue a breach of
contract claim against the City under the undisputed facts of
this case, Plaintiff must have also pursued a claim against
Local 400 for breach of the duty of fair representation. See
Lore v. City of Syracuse, 670 F.3d 127, 151 (2d Cir.2012).
Plaintiff fails to identify any such claim against Local 400,
nor has he alleged such a claim against Local 400 in
this action. Accordingly, the caselaw Plaintiff cites, for the
proposition that whether a union has breached its duty of
fair representation is a fact question for a jury to decide, is
irrelevant to the pending issue before the Court. (See Dkt.
No. 104 at 20 [Pl.'s Mem. of Law citing Smith v. Hussmann
Refrigerator Co., 619 F.2d 1229, 1244–45 (8th Cir.1980) ].)
Finally, it is worth noting that Plaintiff's misunderstanding of
the law in this regard is dubious considering the supporting
legal authority cited by Defendants, Lore v. City of Syracuse,
is a case out of the Second Circuit Court of Appeals, a party
to which was represented by Plaintiff's counsel in this action.
*20 Therefore, Defendants' motion for summary judgment
regarding Plaintiff's breach of contract claim is granted.
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E. Whether Plaintiff's Claims Alleging Discrimination
and Retaliation Due to the City's Contestation of His
Application for Unemployment Benefits Must Be
Dismissed
After carefully considering the matter, the Court answers
this question in the affirmative, for the reasons stated by
Defendants in their memorandum of law in chief as well
as their reply memorandum of law. (Dkt No. 100–8 at 26–
27 [Defs.' Mem. of Law]; Dkt. No. 124 at 14–15 [Defs.'
Reply Mem. of Law].) To those reasons, the Court adds the
following point.
Plaintiff opposes Defendants' motion in this regard,
arguing that the City's contestation of his application for
unemployment benefits was an adverse action. However,
Plaintiff concedes that his retaliation claims in this regard are
asserted solely against the City, despite the allegations in the
Third Amended Complaint.
Plaintiff acknowledges that courts disagree whether an
employer's decision to contest unemployment benefits
constitutes an adverse action, but cites only one case in
support of his argument that opposing unemployment benefits
is adverse action, ostensibly suggesting that this Court should
decide the issue here accordingly. See Brown v. JP Morgan
Chase Bank, No. 12–CV–544, 2013 U.S. Dist. LEXIS 95946,
at *21–22 (E.D.N.Y. Apr. 10, 2013). 9
Nonetheless, this Court finds instructive and persuasive the
caselaw holding that an employer's opposition of a terminated
employee's application for unemployment benefits is not
adverse action for purposes of a retaliation claim. See Burnett
v. Trinity Inst. Homer Perkins Ctr., Inc., No. 10–CV–681,
2011 WL 281023, at *3 (N.D.N.Y. Jan. 25, 2011) (citing
Wanamaker v. Columbian Rope Co., 108 F.3d 462, 466
(2d Cir.1997); U.S. v. N.Y. City Transit Auth., 97 F.3d
672, 677 (2d Cir.1996)). See also Belardo v. Con–Way
Transp. Servs., Inc., No. 02–CV5406, 2005 WL 885016,
at *8 (E.D.N.Y. Mar. 28, 2005) (“[A]n employer's actions
in objecting to the provision of unemployment benefits to
a former employee is not an adverse employment action
cognizable under the employment discrimination laws.”);
Jenkins v. St. Luke's–Roosevelt Hosp. Ctr., No. 09–CV–12,
2009 WL 3682458, at *9 (S.D.N.Y. Oct. 29, 2009) (granting
motion to dismiss retaliation claim regarding employer's
cessation of unemployment benefits); Barriera v. Bankers
Trust, No. 98–CV–3641, 2003 WL 22387099, at *7 (S.D.N.Y.
Oct. 20, 2003) (finding no adverse employment action where
employer opposed plaintiff's unemployment benefits claim,
failed to award severance pay, and informed the EEOC that
the plaintiff resigned); Roman v. Cornell Univ., 53 F.Supp.2d
223, 245 (N.D.N.Y.1999) (holding that employer's opposition
to plaintiff's unemployment benefits application does not
constitute an adverse employment action).
Therefore, Defendants' motion for summary judgment
regarding Plaintiff's retaliation claims as it relates to the City's
contestation of his unemployment benefits is granted.
F. Whether Plaintiff's Hostile Work Environment
Claims Must Be Dismissed
*21 After carefully considering the matter, the Court
answers this question in the affirmative, in part for the reasons
stated by Defendants in their memorandum of law in chief as
well as their reply memorandum of law. (Dkt No. 100–8 at
31–34 [Defs.' Mem. of Law]; Dkt. No. 124 at 12–14 [Defs.'
Reply Mem. of Law].) To those reasons, the Court adds the
following analysis.
Defendants point to Plaintiff's deposition testimony to
demonstrate the lack of evidence supporting Plaintiff's hostile
work environment claim. Specifically, Plaintiff testified that
he felt his employment environment was hostile because
nobody on his crew liked him nor would they communicate
with him, despite the fact that they never made any racial
comments to him. (See Dkt. No. 108 at 264–264 [Dep. of
Guynell Wright, Jan. 18, 2013].) Plaintiff further testified that
he felt like he was walking on egg shells at work because
he feared being disciplined for things that other people were
not disciplined for, and that despite being a victim when a
white employee lifted his leg up behind Plaintiff's head and
when another employee patted his butt, Plaintiff was still
disciplined. 10 (Id., at 267–268.) Defendants argue that these
instances do not rise to the level of severity or pervasiveness
to establish hostile work environment and that Plaintiff has
not established that the alleged hostile or abusive treatment
was because of his race.
Plaintiff, in opposition, fails to identify any evidence in the
record to create a question of fact on the issues of severity
or pervasiveness or the issue of whether the alleged hostile
treatment was because of his race. Instead, Plaintiff argues,
in conclusory fashion, that “there is more than sufficient
evidence for a reasonable jury to conclude that Plaintiff's work
environment was filled with discriminatory intimidation,
ridicule and insult that the terms and conditions of his
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employment were altered for the worse.” (Dkt. No. 104 at
12 [Pl.'s Mem. of Law].) Accordingly, Plaintiff has not met
his burden to identify any fact question for a jury to decide
regarding his hostile work environment claim and summary
judgment may be granted on this basis alone. However, in
an abundance of caution, the Court has reviewed the record
to identify any other evidence that could possibly support
Plaintiff's hostile work environment claim.
In his affirmation, Plaintiff states that when Nolan was
crew leader an employee called Plaintiff the N word in
Nolan's presence, but Nolan asked Plaintiff to shake the other
employee's hand to resolve the conflict, without disciplining
the other employee. (See Dkt. No. 106 at 10, ¶ 56 [Pl.'s Aff.].)
Plaintiff further asserts that, “[u]pon information and belief,
Department of Personnel employee Terri Macri has made
statements to other DPW employees that she does not approve
of mixed race babies.” (Id., ¶ 60.) Other evidence includes
Plaintiff's assertion that Nolan said that “no black man was
ever going to make anything on my watch” in 2007. (Id., at
8, ¶ 46.)
*22 To be sure, even assuming the admissibility of Plaintiff's
double hearsay statements attributable to Terri Macri, their
relevance is dubious considering they were made outside
the presence of Plaintiff. See, e.g., Greaves v. St. Luke's–
Roosevelt Hosp. Ctr., 03–CV–7424, 2005 U.S. Dist. LEXIS
4082, at *33 (S.D.N.Y. March 17, 2005) (rejecting plaintiff's
claim of hostile work environment because, “[w]ith the
exception of a single hearsay remark, made outside his
presence, Greaves fails to point to any discriminatory insult or
abuse”); cf. Benjamin v. Metro. Transp. Auth., 07–CV–3561,
2012 WL 3188764, at *12 (S.D.N.Y. Aug. 2, 2012) (“While
some of Benjamin's fellow Plaintiffs also make allegations
about a hostile work environment, the record does not indicate
that Benjamin was aware of any comments made to other
Plaintiffs, let alone was present to hear them and have them
impact his own work environment.”). Moreover, Plaintiff's
assertion regarding another employee calling him the N-
word in Nolan's presence is also of questionable relevance
because, while Plaintiff fails to state with specificity when the
statement was made, he asserts that it was made when Nolan
was a crew leader, which would have been prior to the relevant
time period at issue in this action. (See Dkt. No. 117, at 6 [Dep.
of Andrew Nolan, Jan. 8, 2013].)
Nonetheless, even assuming the truth, relevance and
admissibility of all of the aforementioned evidence, Plaintiff
still cannot identify a question of fact regarding his hostile
work environment claims. As indicated in Point II.C. 1.a.
of this Decision and Order, occasional offensive racial
comments are not sufficiently severe or pervasive in order
to establish a hostile work environment claim. Accordingly,
Defendants' motion for summary judgment on Plaintiff's
hostile work environment claims is granted.
G. Whether Plaintiff's Due Process Claims Must Be
Dismissed
After carefully considering the matter, the Court answers this
question in the affirmative, in part for the reasons stated by
Defendants in their memorandum of law in chief as well
as their reply memorandum of law. (Dkt No. 100–8 at 68–
70 [Defs.' Mem. of Law]; Dkt. No. 124 at 15–16 [Defs.'
Reply Mem. of Law].) To those reasons, the Court adds the
following analysis.
First, the Court notes that the Third Amended Complaint
contains an allegation that “Plaintiff maintained a property
and liberty interest in his good name and reputation” which
was deprived by Defendants. (Dkt. No. 45 ¶¶ 103–104
[Pl.'s Third Am. Compl.].) In his papers in opposition to
Defendants' motion for summary judgment on his due process
claim, Plaintiff makes no mention of a liberty interest in his
reputation, nor does the record contain any evidence of an
offensive statement that was made public. Accordingly, to
the extent any substantive due process claim was intended by
Plaintiff, it is dismissed from this action.
Second, to the extent Plaintiff alleges a procedural due
process claim based on any employment action other than
termination, those claims are dismissed. Courts in this Circuit
hold that an employee does not have a constitutionally
protected interest to be free from employment actions other
than termination. See Barnes v, Pilgrim Psychiatric Ctr., 860
F.Supp.2d 194, 204 (E.D.N.Y.2012) (citing cases).
*23 Finally, regarding Plaintiff's termination, it is clear
that the grievance procedure set forth in the CBA provided
Plaintiff the appropriate pre-deprivation hearing as required
by the Due Process Clause. See Adams, 517 F.3d at
128. Regarding post-deprivation procedures, Plaintiff argues
that the CBA “replaces N.Y. Civil Service Law § 75
and any other procedures to challenge the termination of
employment.” (Dkt. No. 104 at 17 [Pl.'s Mem. of Law].) To
be sure, the CBA provides, in relevant part, that the grievance
procedure outlined therein “shall apply in lieu of Section
75 and 76 of the Civil Service Law for any employee who
would be covered by those sections.” (Dkt. No. 96–2 at 52
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[Ex. B to Thompson Decl.].) However, there is nothing in
the CBA or otherwise that prevents Plaintiff from seeking
a post-deprivation hearing. “[T]he availability of an Article
78 proceeding after the fact provides all the process that is
due.” Kruggel v. Town of Arietta, No. 11–CV–1250, 2013 WL
5304184, at *4 (N.D.N.Y. Sept. 19, 2013) (quoting Sebast v.
Mahan, 754 F.Supp.2d 423, 431–32 (N.D.N.Y.2010)).
For these reasons, Defendants' motion for summary judgment
regarding Plaintiff's due process claims is granted.
H. Whether Plaintiff's Claims Based on
Discriminatory Assignments Must Be Dismissed
After carefully considering the matter, the Court answers this
question in the affirmative, in part for the reasons stated by
Defendants in their memorandum of law in chief as well as
their reply memorandum of law. (Dkt No. 100–8 at 43–45
[Defs.' Mem. of Law]; Dkt. No. 124 at 14 [Defs.' Reply Mem.
of Law].) To those reasons, the Court adds the following
analysis.
Plaintiff has failed to oppose Defendants' motion for summary
judgment in this regard. As indicated above in Point II.B.
of this Decision and Order, in this District, when a non-
movant fails to oppose a legal argument asserted by a movant
in support of a motion, the movant's burden with regard
to that argument has been lightened such that, in order to
succeed on that argument, the movant need only show that
the argument possesses facial merit, which has appropriately
been characterized as a “modest” burden. At the very least,
Defendants have met the lightened burden that was created
by Plaintiff's failure to respond.
In any event, the Court would reach the same conclusion
even if it were to subject the Defendants' argument to the
more rigorous scrutiny appropriate for a contested argument.
The receipt of undesirable work assignments must be
accompanied by a materially adverse change in employment,
such as demotion or loss of wages, in order to be actionable.
See Henry v. NYC Health & Hosp. Corp., No. 13–CV–
6909, 2014 WL 957074, at *5 (S.D.N.Y. Mar. 10, 2014).
Here, Plaintiff complains that “he and other Black employees
have been given less desirable assignments” such as those
requiring work outdoors in the hazardous weather. (See Dkt.
No. 42 at ¶ 28 [Pl.'s Third Am. Compl.].) At his deposition,
however, Plaintiff conceded that it was part of his job to go
out in the cold and shovel snow. (See Dkt. No. 108 at 116
[Pl.'s Dep.].) There is no evidence that such job assignments
were accompanied by a loss in job title or pay. Accordingly,
the alleged discriminatory job assignments cannot form the
basis of a discrimination or retaliation claim since they
were not materially adverse. Therefore, Defendants' motion
for summary judgment on any claim of discriminatory or
retaliatory reassignment of job duties is granted.
I. Whether Plaintiff's Claims Based on Discriminatory
Denial of Promotion Must Be Dismissed
*24 After carefully considering the matter, the Court
answers this question in the affirmative, in part for the reasons
stated by Defendants in their memorandum of law in chief
as well as their reply memorandum of law. (Dkt No. 100–8
at 57–67 [Defs.' Mem. of Law]; Dkt. No. 124 at 6–9 [Defs.'
Reply Mem. of Law].) To those reasons, the Court adds the
following analysis.
In support of his discriminatory failure to promote claim,
Plaintiff alleges that he asked Defendants Nolan and Wright
for promotions and that, when asked why he did not promote
black employees, Nolan responded, “A black man will never
make anything on my watch.” (See Dkt. No. 42 at ¶¶ 26–27
[Pl.'s Third Am. Compl.].)
The following facts are undisputed. The opportunities for a
pay grade promotion just above Plaintiff's job title, Laborer
I, include Laborer II, Motor Equipment Operator (“MEO”)
I and MEO II, all of which are within Plaintiff's bargaining
unit. Each of these positions require a Commercial Driver's
License (“CDL”), which Plaintiff never sought. Plaintiff
also never applied for any of these pay grade promotions.
The title of “Crew Leader” is a position within the Street
Cleaning Bureau, which falls under a separate CBA between
the AFSCME 1773 and the City. (See Dkt. No. 96–7 [Ex.
G to Thompson Decl.].) Under that CBA, all Crew Leader
vacancies must be advertised and filled by qualified Local
1773 members before being offered to members of other
bargaining units, such as Local 400.
Although the City has no record of Plaintiff ever having
applied for a Crew Leader position, Plaintiff asserts that
between 2006 and 2010, whenever a bid was posted for a
Crew Leader position, he submitted an application, but was
never promoted to Crew Leader. However, at his deposition,
when asked what positions he put in a bid for between 2006
and 2010, Plaintiff replied that he “put in a bid for a crew
leader” and later that he bid for “a couple of” and “more
than one bid” for Crew Leader. (Dkt. No. 108 at 96, 99.) 11
Plaintiff went on to explain that there was one Crew Leader
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position in Sanitation, and another in Street Cleaning. Plaintiff
said that Sanitation position went to Efren Maldonado, who
had previously worked in Street Cleaning and Sanitation, and
the other position went to Thomas Rubado, who came from
the Aviation Department. Finally, when asked what reason he
has to believe he did not get those jobs because of his race,
Plaintiff testified that he believes he didn't get those positions
because “they didn't like me.” (Id. at 105.)
According to Jeffrey Wright, who was Commissioner through
the end of 2009, the only Crew Leader positions that he
appointed in the Street Cleaning Bureau during his tenure
were filled by existing Local 1773 members, Thomas Rubado
and Richard Shepherd. Since both were qualified, the position
would not have been opened to other bargaining units. The
only non Local 1773 member who filled a Crew Leader
position during Wright's tenure was Efran Maldonado, a
minority who was an MEO at the time of his promotion. Also,
that position opened in the Department of Sanitation in 2006
and had entirely different job responsibilities than that of the
Street Cleaning Bureau. (See Dkt. No. 97 at ¶¶ 48–49 [Decl.
of Jeffrey Wright, June 13, 2013].)
*25 Nolan, Superintendent, asserts that he was not
involved in formal hiring decisions, which are made by the
Commissioner. (See Dkt. No. 98 at ¶ 13 [Decl. of Andrew
Nolan, June 13, 2013].) Plaintiff disputes this, citing Nolan's
promotion of Ray Garcia to the vacant position of “acting
crew leader” in 2007. It was at that time that, Plaintiff asserts,
Nolan made the comment that “no black man was ever going
to make anything on my watch.” (Dkt. No. 106 at ¶¶ 44–46
[Pl.'s Aff.].)
Jeffrey Wright, who was Commissioner through 2009, affirms
that, in the day-to-day operation of the Street Cleaning
Bureau, it becomes necessary to name an acting Crew Leader
if the actual Crew Leader is out sick or on vacation. These
positions are temporary and are made by the Superintendent,
not the Commissioner. (See Dkt. No. 97 at ¶ 51 [Jeffrey
Wright Decl.].) Wright further affirmed that “at some point
in 2007,” Plaintiff came to Wright and told him that he
should be considered for promotion to Crew Leader; not for
a specific opening, but more generally in the future. Then
Commissioner Wright explained to Plaintiff that he needed
to make himself more competitive, “including obtaining his
CDL and applying for some of the intermediate positions such
as Laborer II and MEO.” (Id., at ¶ 50.) Wright explained
that, “[i]n other words, since a Crew Leader must supervise
laborers and heavy equipment and motor vehicle operators
and be familiar with the operation of all of the equipment in
the Bureau, it helps to have experience actually performing
those jobs and operating that equipment.” (Id.)
At his deposition, Plaintiff explains that he was told by Bobby
Reed, a supervisor, that “next week you are going to be the
acting crew leader” but then when that week arrived, Ray
Garcia was the acting crew leader. (Dkt. No. 108 at 106–107
[Pl.s' Dep.].) Plaintiff agreed “that an acting crew leader is
someone who is working out of title for a short period of time
while somebody is either on medical leave or vacation.” (Id.
at 107:9–14.) Plaintiff also explained that during this short
period of time, the acting crew leader is paid at the Crew
Leader rate. Plaintiff testified that he felt that Nolan gave
Ray Garcia the acting crew leader position because of racial
animosity toward Plaintiff due to Nolan's comment that a
black man wasn't going to make anything on his watch. (Id.
at 108.) Plaintiff clarified that Nolan made this comment after
he made Ray Garcia acting crew leader. (Id.)
In his opposition to Defendants' motion, Plaintiff cites one
factual question that he argues warrants a denial of summary
judgment. Specifically, Plaintiff argues that there is a question
of fact regarding whether Nolan made the statement that no
black man will ever make anything on his watch. Moreover,
Plaintiff contends that even where Nolan was not the decision
maker, under a Cat's Paw theory of liability, his racial animus
may be imputed to the decision maker.
*26 As indicated in Point II.C. 1.b. of this Decision
and Order, Plaintiff bears the burden at trial to show
that (1) he is a member of a protected class; (2) he
was qualified for the position he held; (3) he suffered an
adverse employment action; and (4) the adverse action took
place under circumstances giving rise to an inference of
discrimination. See Bir v. Pfizer, Inc., 510 F. App'x 29, 30
(2d Cir.2013). In order to establish a prima facie case of
discrimination based on failure to promote, Plaintiff must
show that “(1) [he] is a member of a protected class; (2)
[he] applied and was qualified for a job for which the
employer was seeking applicants; (3)[he] was rejected for
the position; and (4) the position remained open and the
employer continued to seek applicants having the plaintiff's
qualifications.”
Plaintiff cannot establish a prima facie case of discriminatory
failure to promote for several reasons. First, there is evidence
that Plaintiff was not qualified to be a Crew Leader, given
his lack of experience and failure to obtain a CDL, which
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Plaintiff does not dispute. Next, as it relates to Plaintiff's claim
that Defendants failed to promote him, instead promoting Mr.
Rubado and Mr. Maldonado, to vacant Crew Leader positions,
there is absolutely no evidence of racial animus underlying
the decision to promote Mr. Rubado and Mr. Maldonado. In
fact, Plaintiff testified that he was not promoted to either of
these positions because “they didn't like me” but then later
also testified that Mr. Rubado and Mr. Maldonado were in
a position to get those jobs. (Dkt. No. 108 at 105, 106.)
Moreover, even if Plaintiff could establish a prima facie case
of discrimination on this basis, Defendants have identified
legitimate, non-discriminatory reasons, which Plaintiff does
not dispute, for promoting Mr. Rubado and Mr. Maldonado
rather than Plaintiff: those gentlemen were qualified for the
position and were members of Local 1773, which, pursuant to
the CBA, required that the City promote them before opening
the position up to members of other bargaining units, such
as Local 400. Given the lack of evidence regarding racial
animus attached to those promotions, Defendants are entitled
to summary judgment in that regard.
Regarding Nolan's assignment of Ray Garcia to a temporary,
acting crew leader position instead of Plaintiff, the Court
notes that it is questionable whether such an assignment may
be considered a promotion. See Petrosino v. Bell Atlantic, 385
F.3d 210, 229 (2d Cir.2004) (concluding that an assignment to
substitute for an absent supervisor generally cannot fairly be
labeled a promotion). Nonetheless, Plaintiff does not identify
any evidence suggesting that he was qualified for the acting
crew leader position, while Mr. Garcia, who was an MEO
II, three positions ahead of Plaintiff, was clearly qualified.
Because Plaintiff cannot show that the acting crew leader
position was given to someone less qualified than him, he
cannot establish a prima facie case of discrimination based on
failure to promote.
*27 For these reasons, Defendants' motion for summary
judgment on Plaintiff's claims based on failure to promote is
granted.
J. Whether Plaintiff's Claims Based on Discriminatory
Discipline Must Be Dismissed
After carefully considering the matter, the Court answers this
question in the affirmative, in part for the reasons stated by
Defendants in their memorandum of law in chief as well
as their reply memorandum of law. (Dkt No. 100–8 at 48–
577 [Defs.' Mem. of Law]; Dkt. No. 124 at 9–12 [Defs.'
Reply Mem. of Law].) To those reasons, the Court adds the
following point.
Plaintiff has not identified any evidence of discriminatory or
retaliatory animus based on his race as it relates to discipline.
The sole question of fact Plaintiff identifies, which is whether
Nolan stated in 2007 that no black man would get promoted
on his watch, is irrelevant to the disciplinary actions taken
against Plaintiff. It is undisputed that the only Defendant who
was the decision maker regarding the disciplinary actions
against Plaintiff was Commissioner Wright. 12 Moreover,
other than a bald and unsupported assertion by Plaintiff
in his response to Defendants' Local Rule 7.1 statement,
there is no evidence that Nolan had anything to do with the
Commissioner's decision to discipline Plaintiff. Finally, there
is absolutely no evidence of racial animus or bias on behalf
of Commissioner Wright against Plaintiff.
Moreover, for the reasons stated in Defendants' memoranda,
Plaintiff has failed to adduce any evidence that similarly
situated white employees were treated more favorably than
Plaintiff in terms of discipline. (See Dkt. No. 100–8 at 51–55
[Defs.' Mem. of Law].)
For these reasons, Defendants' motion for summary
judgment on Plaintiff's claims regarding discriminatory and/
or retaliatory discipline is granted.
K. Whether Plaintiff's Claims Based on
Discriminatory Termination Must Be Dismissed
After carefully considering the matter, the Court answers this
question in the affirmative, in part for the reasons stated
by Defendants in their memorandum of law in chief as
well as their reply memorandum of law. (Dkt No. 100–8 at
14–25 [Defs.' Mem. of Law]; Dkt. No. 124 at 2–6 [Defs.'
Reply Mem. of Law].) To those reasons, the Court adds the
following analysis.
Plaintiff has not identified any evidence of discriminatory
or retaliatory animus based on his race as it relates to his
termination. The sole question of fact Plaintiff identifies,
which is whether Nolan stated in 2007 that no black man
would get promoted on his watch, is irrelevant to Plaintiff's
termination. The evidence reflects that Defendant O'Connor,
who was Commissioner at the time, made the decision
to terminate Plaintiff. Even assuming that Defendants
Thompson and Simone advised or encouraged O'Connor to
terminate Plaintiff, there is no evidence of racial animus or
bias on behalf of O'Connor, Thompson 13 or Simone against
Plaintiff.
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The only person that Plaintiff has identified as having racial
animus is Nolan. Nolan affirms that he did not initiate
the discipline leading up to Plaintiff's termination, did not
participate in the pre-disciplinary hearing and played no
role in the decision to terminate Plaintiff. Nolan further
affirms that O'Connor did not ask for his input regarding
the termination. (See Dkt. No. 98 at ¶ 49 [Nolan Decl.].)
O'Connor affirms that he was the sole decision maker in the
determination to terminate Plaintiff. (See Dkt. No. 99 at ¶ 36
[Decl. of John M. O'Connor, III, June 13, 2013].). In making
the decision to terminate Plaintiff, O'Connor states that he
relied upon
*28 (a) the Police Report and the
statements Guynell Wright made to
the police that he knew he was
violating DPW policy; (b) the fact
that Guynell Wright was in the last
stage of disciplinary progression; (c)
the fact that Guynell Wright had
been previously received significant
discipline in 2007 for near identical
conduct; and (d) a review of Guynell
Wright's prior “thick” disciplinary file
which reflected numerous prior major
and minor violations and demonstrated
a pattern of misconduct over time.
(Id. at ¶ 37.) In his response to Defendants' Local Rule 7.1
Statement of Material Facts, Plaintiff denies the assertion that
Nolan did not initiate the discipline leading up to Plaintiff's
termination, did not participate in the pre-disciplinary hearing
and played no role in the decision to terminate Plaintiff. (See
Dkt. No. 105 at ¶ 47 [Pl.'s Rule 7.1 Response Statement].) In
support of his purported denial, Plaintiff cites his affirmation
that he personally observed O'Connor go to Nolan and Culkin
for advice on how to perform his duties as Commissioner. (See
Dkt. No. 106 at ¶ 42 [Pl.'s Aff.].) Plaintiff has failed to identify
any evidence of Nolan's participation in his termination, either
directly or by communication or encouragement of a decision
maker.
For these reasons, Defendants' motion for summary judgment
as it relates to Plaintiff's claims for discriminatory and/or
retaliatory termination is granted.
Finally, the Court notes that Plaintiff has identified no
evidence of a causal connection between his DHR complaints
and the alleged adverse actions. There is no direct evidence of
retaliatory motive on behalf of any decision maker. Moreover,
there is no temporal proximity between Plaintiff's complaints
and the adverse actions. For example, Plaintiff complained
to DHR in March 2008, but the next adverse action did not
occur until January 2009. Also, Plaintiff was terminated an
entire year after his February 2009 DHR complaint. For these
reasons, in addition to those asserted by Defendants in their
memoranda of law, Plaintiffs' retaliation claims are dismissed.
Because the Court dismisses Plaintiff's claims for the absence
of a question of material fact as to the substantive elements
of those claims, the Court need not address the remainder
of Defendants' arguments for dismissal, such as failure to
exhaust and failure to file a notice of claim.
ACCORDINGLY, it is
ORDERED that the Defendants' motion for summary
judgment (Dkt. No. 95) is GRANTED; and it is further
ORDERED that Plaintiff's claims are dismissed with
prejudice. The clerk is directed to enter judgment in favor of
the defendants and close this case.
All Citations
Not Reported in F.Supp.3d, 2014 WL 1293527
Footnotes
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1 Conclusions of law in a Local Rule 7.1 Statement, even where unopposed, are not deemed admitted. See
Johnson v. Enu, No. 08–CV–158, 2011 WL 3439179, at *1 (N.D.N.Y. July 13, 2011) (Homer, M .J.), adopted
in its entirety by, 2011 WL 3439524 (N.D.N.Y. Aug. 5, 2011) (Scullin, J.).
2 Plaintiff asserts that he began working for the City on October 3, 1988 as a “Laborer I” for the Department's
Sanitation Bureau. (See Dkt. No. 108, at 44–45 [Dep. of Guynell Wright, Jan. 18, 2013].) However, events
which occurred prior to June of 2006 are irrelevant to the resolution of the pending motion since the longest
statute of limitations applicable to any of the claims in this action is four years. See James v. Countrywide
Fin. Corp., 849 F.Supp.2d 296, 317–318 (E.D.N.Y.2012) (finding that four-year statute of limitations set forth
in 28 U.S.C. § 1658(a) applies to employment discrimination and retaliation claims brought pursuant to 42
U.S.C. § 1981); Asanjarani v. City of New York, No. 09–CV–7493, 2011 WL 4343687, at * 10 (Aug. 18,
2011) (statute of limitations for employment discrimination claims brought pursuant to Section 1983 is three
years); Ruggerio v. Dynamic Elec. Sys. Inc., No. 12–CV–100, 2012 WL 3043102, at *6 (E.D.N.Y. Jul. 25,
2012) (citing 42 U.S.C. § 2000e–5(e)(f)) (claims are timely under Title VII if an administrative complaint is
filed within 300 days of the alleged discriminatory act, and a judicial action is filed within 90 days of receipt of
a rightto-sue letter by the administrative body); Sloth v. Constellation Brands, Inc., 883 F.Supp.2d 359, 373
(W.D.N.Y.2012) (citing N.Y.C.P.L.R. § 214(2) (McKinneys 2008)) (under Section 296, the limitations period
runs for three years from the date on which an action asserting NYHRL violations is filed, but this limitations
period is tolled for the period between the filing of an administrative charge and the issuance of a right-to-
sue letter).
3 Plaintiff filed a complaint with the New York State Division of Human Rights (“DHR”) on March 3, 2008, in
which he argued that his 20–day suspension by the City for fighting was disparate treatment based on race.
On August 18, 2008, DHR dismissed the complaint based on a lack of probable cause. (See Dkt. Nos. 96–
29 and 96–30 [Exs. CC and DD to Thompson Decl.].)
4 Plaintiff ostensibly filed a complaint with DHR on February 18, 2009, charging the City with race discrimination
due to his termination. The DHR later dismissed the complaint citing a lack of evidence of unlawful
discrimination. (See Dkt. No. 96–31 [Ex. EE to Thompson Decl.].)
5 Plaintiff's complaints were cross-filed with the United States Equal Employment Opportunity Commission
(“EEOC”).
6 As the Supreme Court has famously explained, “[the nonmoving party] must do more than simply show that
there is some metaphysical doubt as to the material facts.” Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio
Corp., 475 U.S. 574, 585–86, 106 S.Ct. 1348 (1986) (citations omitted).
7 Plaintiff's counsel argues that here, this Court must apply the “universal” rule in the courts of the State of New
York that allows a non-moving party to successfully oppose summary judgment with evidence that would be
inadmissable at trial because some of Plaintiff's claims arise under New York law. (See Dkt. No. 104 at 1–2
[Pl.'s Mem. of Law].) Without commenting on the veracity of Plaintiff's counsel's interpretation of New York law
in this regard, the Court notes that it is by now very well-settled law that “[t]he issue of what burden a movant
for summary judgment bears when the ultimate burden of proof lies with the non-movant is procedural rather
than substantive, under the distinction created by Erie R. Co. v. Tompkins, 304 U.S. 64, 58 S.Ct. 817 (1938)
and its progeny, and accordingly is subject to federal rather than state law .” Tingling v. Great Atl. & Pac.
Tea Co., 02–CV–4196, 2003 WL 22973452, *2 (S.D.N.Y. Dec. 17, 2003), citing Erie R. Co. v. Tompkins. 304
U.S. 64, 58 S.Ct. 817 (1938) and Celotex v. Catrett, 477 U.S. 317, 106 S.Ct. 2548 (1986) (applying federal
law on defendant's burden at summary judgment stage to diversity action).
8 “The primary doctrinal differences between Title VII claims and employment discrimination claims pursuant
to Sections 1981 and 1983 regard (1) the statute of limitations, (2) the requirement that Section 1981 or 1983
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plaintiffs must show employment discrimination pursuant to an official policy or custom, (3) that individuals
may be held liable under Sections 1981 and 1983, but not under Title VII, and (4) a Title VII claim may
be established through proof of negligence, whereas Section 1981 and 1983 claims must be supported by
evidence of intentional discrimination.” Jackson v. City of New York, No. 11–CV–3028, 2014 WL 1010785,
at *4, n. 10 (E.D.N.Y. Mar. 17, 2014) (citing Patterson, 375 F.3d at 225–227).
9 Although, as Defendants point out, this decision is a Report and Recommendation that was later vacated,
the case was thereafter reassigned to another District Judge who adopted the Report and recommendation
in full. See See Brown v. JP Morgan Chase Bank, No. 12–CV544, 2013 U.S. Dist. LEXIS 109700 (E.D.N.Y.
Aug. 5, 2013).
10 Regarding these incidents of discipline, the Court notes Plaintiff's affirmation that in 1997, another black
employee slapped his bottom in the restroom, which resulted in two separate physical altercations between
Plaintiff and this other employee: one in the restroom and another later in the day when Plaintiff was on
his way home from work. Plaintiff asserts that both he and the other employee were disciplined as a result.
(See Dkt. No. 106 at 2, ¶ 8 [Pl.'s Aff.].) Plaintiff further asserts that in February 2007, Stanley Gardynski,
a white employee, made humping motions with his groin at Plaintiff's head. Plaintiff admits that afterward,
when Gardynski was provoking him again, Plaintiff hit him. Both Plaintiff and Gardynski were disciplined as
a result. (Id. at 3, ¶ 13.)
11 Plaintiff also put in a bid for a gardener position in the Parks and Recreation Department.
12 In his response to Defendants' Local Rule 7.1 Statement of Material Facts, Plaintiff denies that Nolan was not
the decision maker regarding the discipline he received between 2006 and 2009. (See Dkt. No. 105 at ¶ 68
[Pl.'s Rule 7.1 Response Statement] .) In support of this purported denial, Plaintiff asserts that Commissioner
Wright relied on Defendants Nolan and Culkin to make the final determination regarding discipline. However,
Plaintiff cites a portion of his deposition testimony that does not support this assertion. Accordingly, this fact
is deemed admitted.
13 At his deposition, Plaintiff testified that he did not believe that O'Connor or Thompson decided to terminate
him because he is black. (See Dkt. No. 108 at 222 [Pl.'s Dep.].) Plaintiff testified that he thought Thompson
retaliated against him for making complaints of discrimination because Thompson “never helped me out”
when Plaintiff would go to him with problems. (Id. at 222–223.) Finally, at his deposition, Plaintiff testified that
the only involvement Simone had was being present at meetings and that “[h]e didn't do anything, really.” (Id.
at 247.)
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