Rodriguez v. Armstrong et al

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK
__________________________________________
KEITH RODRIGUEZ,
Plaintiff,
v. 	9:24-cv-1248 (BKS/TWD)
SGT. THOMAS ARMSTRONG and
MARGARET HARNEY-MATHEWS,
Defendants.
__________________________________________
APPEARANCES:
KEITH RODRIGUEZ 	OF COUNSEL:
Plaintiff, pro se
0900305506
Hudson County Jail
30-35 Hackensack Ave.
Kearny, NJ 07032
ST. LAWRENCE COUNTY ATTORNEY’S OFFICE 	STEPHEN D. BUTTON, ESQ.
Counsel for Defendants 	County Attorney
48 Court Street
Canton, NY 13617
THÉRÈSE WILEY DANCKS, United States Magistrate Judge
REPORT-RECOMMENDATION AND ORDER
I. 	INTRODUCTION
This matter was referred for a report and recommendation by the Hon. Brenda K. Sannes,
Chief United States District Judge, pursuant to 28 U.S.C. § 636(b) and Local Rule 72.3(c).
Currently pending before the Court is a motion to dismiss filed by Defendants Sgt. Thomas
Armstrong and Margaret Harney-Mathews. Dkt. No. 29. The motion is fully briefed. Dkt. Nos.
37, 38. For the reasons set forth below, the undersigned recommends Defendants’ motion be
denied.
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II. 	BACKGROUND
Plaintiff Keith Rodriguez commenced this action by filing a pro se civil rights complaint
pursuant to 42 U.S.C. § 1983 (“Section 1983”), together with an application to proceed in forma
pauperis (“IFP”). Dkt. Nos. 1, 2. Before the Court had an opportunity to review the original
complaint for sufficiency in accordance with 28 U.S.C. §§ 1915(e)(2)(B) and 1915A(b), Plaintiff
filed an amended complaint. Dkt. No. 9.
By Decision and Order entered on November 18, 2024, the Court granted Plaintiff’s IFP
application and found Plaintiff’s First Amendment retaliation claims and Fourteenth Amendment
excessive force and failure to intervene claims against Defendants survived sua sponte review
and required a response. Dkt. No. 10. Plaintiff’s remaining Section 1983 claims were dismissed
without prejudice pursuant to 28 U.S.C. §§ 1915(e)(2)(B) and 1915A(b) for failure to state a
claim. Id. at 14-15. Plaintiff subsequently filed a second amended complaint. Dkt. No. 13.
The following facts are set forth as alleged by Plaintiff. On September 10, 2021, Plaintiff
filed a grievance regarding the “misplacement” of his legal mail. Id. at 7.1 On September 16,
2021, at approximately 10:45 am, Plaintiff visited the “officer’s station” to inquire about his
grievance, where he encountered Defendant Armstrong. Id. Defendant Armstrong “screamed”
at Plaintiff for inquiring about his grievance and then “with full force [g]rabbed [Plaintiff] by his
neck and throat and slammed [him] against the wall[,] and “struck him several times in the
presence” of Defendant Harney-Mathews, which resulted in Plaintiff suffering a “serious neck
[injury] and “back pain[.]” Id. at 4-5. Defendant Harney-Matthews “witness[ed] the assault, but
refuse[d] to protect or intervene.” Id. at 4, 6.
1 Page references to documents identified by the docket number refer to the pagination generated
by CM/ECF, the Court’s electronic filing system.
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Following the use of force incident, Defendant Armstrong “wrote a false fabricated
incident report” and “had [P]laintiff falsely arrested for assault[.]” Id. at 5, 9. The criminal
matter “was ultimately dismissed because there was no probable cause, and no accusatory
instrument filed.” Id. at 5.
The Court liberally construed the allegations in the second amended complaint to reassert
the following Section 1983 claims: (1) First Amendment retaliation claims against Defendants
Armstrong and Harney-Mathews; (2) a Fourteenth Amendment excessive force claim against
Defendant Armstrong; and (3) a Fourteenth Amendment failure to intervene claim against
Defendant Harney-Mathews. Dkt. No. 20 at 4. The second amended complaint also reasserted a
false arrest claim and alleged a new claim for conspiracy based on allegations that Defendants
attempted to “cover up” their wrongdoing after-the fact. Id. at 5-6.
By Decision and Order entered on January 22, 2025, the Court accepted the second
amended complaint for filing and again determined the following Section 1983 claims survived
sua sponte review and required a response: (1) First Amendment retaliation claims against
Defendants Armstrong and Harney-Mathews; (2) a Fourteenth Amendment excessive force
claim against Defendant Armstrong; and (3) a Fourteenth Amendment failure to intervene claim
against Defendant Harney-Mathews. Id. at 12. Plaintiff’s remaining Section 1983 claims were
dismissed without prejudice pursuant to 28 U.S.C. §§ 1915(e)(2)(B) and 1915A(b) for failure to
state claim. Id.
On May 5, 2025, Defendants filed the instant motion to dismiss. Dkt. No. 29. On May
19, 2025, Plaintiff opposed the motion. Dkt. No. 37. Defendants filed a reply on May 28, 2025.
Dkt. No. 38.
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III. 	STANDARD OF REVIEW
On a Rule 12(b)(6) motion, a court may dismiss a complaint for “failure to state a claim
upon which relief can be granted.” Fed. R. Civ. P. 12(b)(6). “To survive a motion to dismiss, a
complaint must contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is
plausible on its face.’” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v.
Twombly, 550 U.S. 544, 570 (2007)). A claim is plausible on its face “when the ple[d] factual
content allows the court to draw the reasonable inference that the defendant is liable for the
misconduct alleged.” Id. (citing Twombly, 550 U.S. at 556). “The plausibility standard is not
akin to a ‘probability requirement,’ but it asks for more than a sheer possibility that a defendant
acted unlawfully.” Id. The factual allegations pled “must be enough to raise a right to relief
above the speculative level.” Twombly, 550 U.S. at 555.
“In reviewing a complaint for dismissal under Rule 12(b)(6), 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.
Therefore, a plaintiff must provide “more than labels and conclusions” to show entitlement to
relief. Twombly, 550 U.S. at 555.
“In considering a motion to dismiss for failure to state a claim pursuant to Rule 12(b)(6),
a court may consider the following matters outside the four corners of the complaint: (1)
documents attached as an exhibit to the complaint [ ], (2) documents incorporated by reference in
the complaint (and provided by the parties), (3) documents that, although not incorporated by
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reference, are ‘integral’ to the complaint, or (4) any matter of which the court can take judicial
notice for the factual background of the case.” Lane v. Tilbe, No. 18-CV-0438, 2018 WL
6289668 (LEK/DJS), at *2 (N.D.N.Y. Dec. 3, 2018) (internal citations omitted). Judicial notice
may be taken of public records, including “arrest reports, criminal complaints, indictments, and
criminal disposition data.” Wims v. New York City Police Dep’t, No. 10 Civ. 6128(PKC), 2011
WL 2946369, at *2 (S.D.N.Y. July 20, 2011) (citing Vasquez v. City of New York, 99 Civ. 4606,
2000 WL 869492, at *1 n.1 (S.D.N.Y. June 29, 2000)). Where the Court takes judicial notice of
these public records, it does so “to determine what statements [the public records] contained . . .
not for the truth of the matters asserted.” Roth v. Jennings, 489 F.3d 499, 509 (2d Cir. 2007)
(internal citations omitted).
Where a party is proceeding pro se, the court is obliged to “read [the pro se party’s]
supporting papers liberally, and . . . interpret them to raise the strongest arguments that they
suggest.” Burgos v. Hopkins, 14 F.3d 787, 790 (2d Cir. 1994); see also Harris v. Mills, 572 F.3d
66, 72 (2d Cir. 2009) (courts remain obligated to construe pro se complaints liberally even after
Twombly).
The mandate to read the papers of pro se litigants generously makes
it appropriate to consider a plaintiff’s papers in opposition to a
defendant’s 	motion 	to 	dismiss 	as 	effectively 	amending 	the
allegations of the plaintiff’s complaint, to the extent that those
factual 	allegations 	are 	consistent 	with 	the 	allegations 	of 	the
plaintiff’s complaint.
Robles v. Bleau, No. 07-CV-0464, 2008 WL 4693153, at *6 and n.41 (N.D.N.Y. Oct. 22, 2008)
(collecting cases); Donhauser v. Goord, 314 F. Supp. 2d 119, 121 (N.D.N.Y. 2004) (where a pro
se plaintiff is faced with a motion to dismiss, a court may consider materials outside of the
complaint “to the extent they are consistent with the allegations in the complaint”), vacated in
part on other grounds, 317 F. Supp. 2d 160 (N.D.N.Y. 2004).
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IV. 	ANALYSIS
A. 	Statute of Limitations
Plaintiff alleges Defendants used excessive force, failed to intervene, and retaliated
against him on September 16, 2021, in violation of his constitutional rights. Dkt. No. 13 at 7.
Defendants argue Plaintiff’s Section 1983 claims are time-barred and must therefore be
dismissed under Rule 12(b)(6). Dkt. No. 29-10 at 12-13, 18-19.2, 3 Plaintiff argues, inter alia,
“the statute of limitations should be equitably tolled due to extraordinary circumstances,
including fear of retaliation and restricted access to legal resources while incarcerated.” Dkt. No.
37 at 12 (emphasis omitted).
“Although the statute of limitations is ordinarily an affirmative defense that must be
raised in the answer, a statute of limitations defense may be decided on a Rule 12(b)(6) motion if
the defense appears on the face of the complaint.” Conn. Gen. Life Ins. Co. v. BioHealth Labs.,
Inc., 988 F.3d 127, 131-32 (2d Cir. 2021) (quoting Thea v. Kleinhandler, 807 F.3d 492, 501 (2d
Cir. 2015)); accord McKenna v. Wright, 386 F.3d 432, 436 (2d Cir. 2004); see also Rodriguez,
2025 WL 1066524, at *5 (“The statute of limitations is an affirmative defense which is generally
2 Defendants also purportedly seek dismissal of Plaintiff’s conspiracy claims and a constitutional
claim regarding the right to file a grievance. See Dkt. No. 29-10 at 15-16, 23-24. However, as
set forth above, only Plaintiff’s Section 1983 claims for First Amendment retaliation, Fourteenth
Amendment excessive force, and Fourteenth Amendment failure to intervene claims survived the
Court’s sua sponte review. See Dkt. No. 20 at 6-12.
3 Defendants also argue this Court lacks subject matter jurisdiction over Plaintiff’s claims
because they are time barred and, therefore, dismissal under Rule 12(b)(1) would also be
appropriate. Dkt. No. 29-10 at 12. But “compliance with the statute of limitations is not a
jurisdictional bar to claims arising under Section 1983.” Rodriguez v. Shattuck, No. 8:24-CV-
00778 (BKS/PJE), 2025 WL 1066524, at *5 (N.D.N.Y. Feb. 6, 2025) (quoting Roundtree v. City
of New York, No. 15-cv-6582, 2018 WL 443751, at *3 (S.D.N.Y. Jan. 16, 2018)). In any event,
for reasons explained herein, Plaintiff’s Section 1983 claims are timely and dismissal is not
warranted on this basis.
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not appropriate for a motion to dismiss, unless the running of the statute is apparent from the face
of the complaint.”) (internal quotations and citation omitted).
“The statute of limitations for § 1983 actions arising in New York is three years.”
Lucente v. Cnty. of Suffolk, 980 F.3d 284, 308 (2d Cir. 2020). “A Section 1983 claim ordinarily
‘accrues when the plaintiff knows or has reason to know of the harm.’” Shomo v. City of New
York, 579 F.3d 176, 181 (2d Cir. 2009) (quoting Eagleston v. Guido, 41 F.3d 865, 871 (2d Cir.
1994)). Thus, as relevant here, “a claim for excessive force accrues when the use of force
occurred” and a failure to intervene claim “accrues when the purported failure to intervene
occurs.” Stokes v. Slayton, No. 5:24-CV-00499 (BKS/ML), 2025 WL 2096968, at *4 (N.D.N.Y.
July 25, 2025) (citation omitted). Likewise, “a retaliation claim accrues at the time the wrongful
conduct occurred.” Mosquero v. Graham, No. 9:19-cv-0442 (GTS/ATB), 2019 WL 13217213,
at *6 (N.D.N.Y. May 2, 2019).
Here, Plaintiff’s Section 1983 claims accrued on September 16, 2021, the date of the
alleged wrongdoing. Dkt. No. 13 at 7. Thus, absent tolling, the three-year statute of limitations
would have expired on September 16, 2024. See Bell v. Saunders, No. 9:20-cv-00256
(BKS/TWD), 2022 WL 2064872, at *5 (N.D.N.Y. June 8, 2022) (explaining when calculating
the statute of limitations for Section 1983 claims, courts use the three-year anniversary of the
accrual date).
Defendants maintain Plaintiff commenced this action by filing his complaint on October
11, 2024,4 which is beyond the three-year statute of limitations period. Dkt. No. 29-10 at 12-13,
4 However, under the “prison mailbox rule,” the date of filing is deemed to be the date that the
prisoner-plaintiff delivered his complaint to a prison guard for mailing to the court, which is
presumed to be the date that the complaint was signed. See Houston v. Lack, 487 U.S. 266, 276
(1988); Noble v. Kelly, 246 F.3d 93, 97 (2d Cir. 2001). The Court notes Plaintiff’s original
complaint is dated September 30, 2024, Dkt. No. 1 at 13, which is still beyond the three-year
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19. Therefore, Defendants argue Plaintiff’s claims are time-barred and must be dismissed. Dkt.
No. 29-10 at 12, 19; see Sewell v. Bernardin, 795 F.3d 337, 339 (2d Cir. 2015) (“‘Dismissal
under [Rule] 12(b)(6) is appropriate when a defendant raises’ . . . timeliness[ ] ‘as an affirmative
defense and it is clear from the face of the complaint, and matters of which the court may take
judicial notice, that the plaintiff’s claims are barred as a matter of law.’”) (quoting Staehr v.
Hartford Fin. Servs. Grp., 547 F.3d 406, 425 (2d Cir. 2008)); see also DiBenedetto v. Coley, No.
22-CV-05926, 2024 WL 1216703, at *4 (S.D.N.Y. Mar. 21, 2024) (granting a motion to dismiss
and dismissing claims as time-barred).
Plaintiff argues he is entitled to equitable tolling and thus his claims are timely. See
generally Dkt. No. 37. “Equitable tolling of the statute of limitations is applicable in certain
situations where the Court determines that a plaintiff should, in fairness, be excused from his or
her lateness in filing a complaint.” Sides v. Paolano, No. 9:15-CV-1203 (MAD/CFH), 2020 WL
6530751, at *4 (N.D.N.Y. June 3, 2020) (citing Gonzalez v. Hasty, 651 F.3d 318, 323-24 (2d Cir.
2011)), report and recommendation adopted, 2020 WL 5511414 (N.D.N.Y. Sept. 14, 2020),
aff’d, No. 20-3241, 2021 WL 4256864 (2d Cir. Sept. 20, 2021). “Equitable tolling is an
extraordinary measure that applies only when plaintiff is prevented from filing despite exercising
that level of diligence which could reasonably be expected in the circumstances.” Id. (quoting
Gonzalez, 651 F.3d at 322). The plaintiff bears the burden of showing that he or she is entitled to
equitable tolling. See Abbas v. Dixon, 480 F.3d 636, 642 (2d Cir. 2007).
Here, Plaintiff expressly alleges he “attempt[ed] to exhaust his administrative remedies to
address the assault, and the unnecessary delay [in] medical attention” by filing a grievance. Dkt.
statute of limitations period. Thus, following the prison mailbox rule, absent tolling, Plaintiff’s
Section 1983 claims would still be untimely.
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No. 13 at 3. “The Second Circuit has held that the mandatory exhaustion requirement imposed
by the Prison Litigation Reform Act (“PLRA”), 42 U.S.C. § 1997e, must equitably toll the §
1983 statute of limitations while the plaintiff is actively exhausting remedies.”5 Brooks v.
Hogan, No. 9:14-cv-0477 (LEK/DJS), 2016 WL 1047384, at *1 (N.D.N.Y. Mar. 16, 2016)
(citing Gonzalez, 651 F.3d at 323 (2d Cir. 2011).
The tolling period begins when a plaintiff first raises an administrative claim and ends
when the plaintiff’s administrative remedies are deemed exhausted. Gonzalez, 651 F.3d at 324
(“[T]he applicable three-year statute of limitations is tolled only during that exhaustion period
and not during the period in between the accrual of those claims and when [the plaintiff] began
the administrative remedy process.”). “That is, the applicable statute-of-limitations period is
tolled during the time that an inmate is ‘actively exhausting [administrative] claims.’” Briglin v.
Hurley, No. 9:23-CV-1001 (BKS/TWD), 2024 WL 3828234, at *10 (N.D.N.Y. Aug. 15, 2024)
(alteration in original) (quoting Gonzalez, 651 F.3d at 324).
Taking Plaintiff’s allegations as true, as the Court must at this juncture, and drawing all
reasonable inferences in Plaintiff’s favor, see Estelle v. Gamble, 429 U.S. 97, 106 (1976),
Plaintiff has plausibly alleged that he was “actively exhausting” administrative claims for at least
some portion of his incarceration at St. Lawrence County Correctional Facility. Dkt. No. 13 at 3.
5 The PLRA provides that “[n]o action shall be brought with respect to prison conditions under
section 1983 of this title, or any other Federal law, by a prisoner confined in any jail, prison, or
other correctional facility until such administrative remedies as are available are exhausted.” 42
U.S.C. § 1997e(a). “This requirement applies to pretrial detainees as well as to sentenced
prisoners.” Smith v. Kelly, 985 F. Supp. 2d 275, 280 (N.D.N.Y. 2013) (citing United States v. Al-
Marri, 239 F. Supp. 2d 366, 367 n.1 (S.D.N.Y. 2002)). “Under New York law, county jails . . .
must permit detainees to file a grievance and, if the grievance is denied, to appeal the denial first
to the chief administrative officer of the facility and then to the Citizens’ Policy and Complaint
Review Council (“CPCRC”) of the New York State Commission of Correction.” Edwards v.
Arocho, 125 F.4th 336, 347 (2d Cir. 2024) (citing N.Y. Comp. Codes R. & Regs. tit. 9, §§
7032.4(a), (j), 7032.5).
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Thus, Defendants’ motion could be denied on this basis. See, e.g., Briglin, 2024 WL 3828234, at
*10 (“Because it is not clear on the face of the amended complaint how long Plaintiff was
actively exhausting his administrative claims—and, consequently, how long the applicable
statute-of-limitations period should be tolled under Gonzalez—the Court cannot conclude that
Plaintiff’s claim is barred as a matter of law.”); Hirsch v. Rehs Galleries, Inc., No. 18-cv-11864,
2020 WL 917213, at *5 (S.D.N.Y. Feb. 26, 2020) (denying motion to dismiss where it was “not
clear from the face of the complaint” that plaintiff’s claims are barred as a matter of law, and
there was “some doubt as to whether dismissal is warranted”).
Defendants, however, submitted a copy of Plaintiff’s “Inmate Grievance 1546” and the
CPCRC’s response thereto in support of their motion to dismiss. Dkt. Nos. 29-8, 29-9.6
Notably, “courts have found grievance documents to be incorporated by reference or integral to a
complaint that alleges having filed a grievance.” Solano v. New York, No. 9:20-cv-01378
(BKS/ML), 2021 WL 4134793, at *3 (N.D.N.Y. Sept. 10, 2021) (citing, inter alia, Sanchez v.
Velez, No. 08-cv-1519, 2009 WL 2252319, at *1 n.1 (S.D.N.Y. July 23, 2009) (“Because
plaintiff’s grievances are referenced in the complaint, the grievance documents are incorporated
by reference and properly considered on a motion to dismiss.”)).7
As summarized by Defendants:
Plaintiff filed a [ ] grievance (Grievance No. 1546) on September
17, 2021, alleging that on September 16, 2021, he was assaulted by
6 Cf. Williams v. Annucci, No. 20-cv-1417, 2021 WL 4775970, at *4 (N.D.N.Y. Oct. 13, 2021)
(“The parties have not addressed how long it took Plaintiff to complete the exhaustion process . .
. and for how long the statute of limitations applicable to his claims should be tolled.
Accordingly, the Court cannot determine from the face of the [operative complaint] that any of
Plaintiff’s claims are ‘barred as a matter of law.’”) (citation omitted).
7 The Court notes Plaintiff has not objected to the inclusion of the grievance packet or contested
its authenticity. See Dkt. No. 37; Solano, 2021 WL 4134793, at *3 (“Even where a document is
deemed integral to the complaint, it must be clear on the record that no dispute exists regarding
the authenticity or accuracy of the document.”) (internal quotations and citations omitted).
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Sgt. Armstrong with C.O. Harney present. On September 25, 2021,
the initial grievance received was denied. On October 1, 2021, the
grievance was accepted for appeal to the [CPCRC]. On November
18, 2021, the [CPCRC] sustained the actions of the facility and
denied the grievance.
Dkt. No. 29-10 at 9 (internal citations omitted). Thus, it appears Plaintiff was “actively
exhausting” his administrative claims from September 17, 2021, to November 18, 2021.
Accordingly, pursuant to Gonzalez, the statute of limitations would have been tolled for 62 days,
making Plaintiff’s Section 1983 claims timely.
Therefore, the undersigned recommends Defendants’ motion to dismiss Plaintiff’s
Section 1983 claims as time-barred by the statute of limitations be denied.
B. 	First Amendment Retaliation Claims
Plaintiff asserts First Amendment retaliation claims against Defendants. Dkt. No. 13 at
4-5. Defendants argue Plaintiff’s retaliation claims must be dismissed. Dkt. No. 29 at 21-23.
Courts must approach claims of retaliation “‘with skepticism and particular care’ because
‘virtually any adverse action taken against a prisoner by a prison official–even those otherwise
not rising to the level of a constitutional violation–can be characterized as a constitutionally
proscribed retaliatory act.’” Davis v. Goord, 320 F.3d 346, 352 (2d Cir. 2003) (quoting Dawes v.
Walker, 239 F.3d 489, 491 (2d Cir. 2001), overruled on other grounds by Swierkiewicz v.
Sorema N.A., 534 U.S. 506 (2002)). To state a plausible claim, a plaintiff asserting a First
Amendment retaliation claim must advance “non-conclusory” allegations establishing “(1) that
the speech or conduct at issue was protected, (2) that the defendant took adverse action against
the plaintiff, and (3) that there was a causal connection between the protected speech [or
conduct] and the adverse action.” Davis, 320 F.3d at 352 (quoting Dawes, 239 F.3d at 492).
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Here, according to Defendants, “Plaintiff’s First Amendment retaliation claim[s]
arguably survived the initial Court review solely on the basis of the Plaintiff’s deceit.” Dkt. No.
29-10 at 23. Consequently, Defendants urge the Court to dismiss Plaintiff’s retaliation claims
because “Plaintiff has attempted to perpetrate a fraud upon the Court through a factual
misrepresentation easily disproven through the exhibits submitted with this motion.” Dkt. No.
29-10 at 22; see also id. at 23 (“The Plaintiff cannot benefit himself of the liberal construction
afforded to pro se plaintiff through deception.”).
But, as discussed above, on a motion to dismiss, “the court reads the facts alleged in the
complaint, assumes the truth of those facts, and decides whether those facts state a claim under
the applicable legal standard.” Espinoza ex rel. JPMorgan Chase & Co. v. Dimon, 797 F.3d 229,
235 (2d Cir. 2015); accord Iqbal, 556 U.S. at 678 (2009); see also Madore on behalf of M.R.M.
v. Pavone, No. 5:25-CV-00095 (BKS/MJK), 2025 WL 3003384, at *3 (N.D.N.Y. Oct. 27, 2025)
(“The Court must accept as true all factual allegations in the complaint and draw all reasonable
inferences in the plaintiff’s favor.”) (citing EEOC v. Port Auth., 768 F.3d 247, 253 (2d Cir.
2014)). Thus, in reviewing the sufficiency of a complaint at the pleading stage, “[t]he issue is
not whether a plaintiff will ultimately prevail but whether the claimant is entitled to offer
evidence to support the claims.” Scheuer v. Rhodes, 416 U.S. 232, 236 (1974); see DeJesus v.
Sears, Roebuck & Co., 87 F.3d 65, 69 (2d Cir. 1996) (A motion to dismiss “test[s] the legal
sufficiency of the complaint, and thus does not require the Court to examine the evidence at
issue.”) (citation omitted). Accordingly, the undersigned recommends denying Defendants’
motion on this basis.
Defendants do not otherwise challenge the legal sufficiency of Plaintiff’s First
Amendment retaliation claims and seemingly concede dismissal is not warranted at this juncture.
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See Dkt. No. 29-10 at 22 (“As applied to this action, if Plaintiff’s allegations were factually true,
the Court would be fair to draw the conclusion, on a facial review, that a [retaliation] claim had
been plausibly stated by Plaintiff.”).
Therefore, the undersigned recommends Defendants’ motion to dismiss Plaintiff’s First
Amendment retaliation claims be denied.
C. 	Fourteenth Amendment Excessive Force and Failure to Intervene Claims
Plaintiff alleges Defendant Armtrong subjected him to excessive force and Defendant
Harney-Mathews failed to intervene in violation of his constitutional rights. Dkt. No. 13 at 7.
Defendants move to dismiss Plaintiff’s Fourteenth Amendment claims for failure to state a claim.
Dkt. No. 29 at 14-15.
In Kingsley v. Hendrickson, 576 U.S. 389 (2015), the Supreme Court distinguished
between Eighth and Fourteenth Amendment excessive force claims and held that a pretrial
detainee need not demonstrate that an officer accused of using excessive force was subjectively
aware that his use of force was unreasonable. Id. at 396-97. Rather, “to prove an excessive force
claim, a pretrial detainee must show . . . only that the officers’ use of that force was objectively
unreasonable.” Id. In making that objective determination, the court must view the matter from
“the perspective of a reasonable officer on the scene,” and consider “the relationship between the
need for the use of force and the amount of force used; the extent of the plaintiff’s injury; any
effort made by the officer to temper or limit the amount of force; the severity of the security
problem at issue; the threat reasonably perceived by the officer; and whether the plaintiff was
actively resisting.” Id. at 397.
In addition, “[i]t is widely recognized that all law enforcement officials have an
affirmative duty to intervene to protect the constitutional rights of citizens from infringement by
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other law enforcement officers in their presence.” Terebesi v. Torreso, 764 F.3d 217, 243 (2d
Cir. 2014) (internal quotation marks omitted) (quoting Anderson v. Branen, 17 F.3d 552, 557 (2d
Cir. 1994)). “As such, an officer who fails to intervene where he or she observes or has reason to
know that excessive force is being used or a constitutional violation has been committed by a
fellow officer is liable for the preventable harm caused by that officer.” Portillo v. Webb, No.
16-CV-4731, 2017 WL 4570374, at *4 (S.D.N.Y. Oct. 11, 2017) (collecting cases), report and
recommendation adopted, 2018 WL 481889 (S.D.N.Y. Jan. 17, 2018).
Liability attaches where “(1) the officer had a realistic opportunity to intervene and
prevent the harm; (2) a reasonable person in the officer’s position would know that the victim’s
constitutional rights were being violated; and (3) the officer does not take reasonable steps to
intervene. Jean-Laurent v. Wilkerson, 438 F. Supp. 2d 318, 327 (S.D.N.Y. 2006), aff’d, 461 F.
App’x 18 (2d Cir. 2012); see Vann v. Sudranski, No. 16-cv-7367 (VB), 2020 WL 3001072, at *6
(S.D.N.Y. June 4, 2020) (“[F]or liability to attach, there must have been a realistic opportunity to
intervene to prevent the harm from occurring.”) (quoting Jean-Laurent, 461 F. App’x at 21).
“Whether the officer had a ‘realistic opportunity’ to intervene is normally a question for the jury,
unless, considering all the evidence, a reasonable jury could not possibly conclude otherwise.”
Sloley v. Vanbramer, 945 F.3d 30, 47 (2d Cir. 2019) (citation omitted).
Here, Defendants contend Plaintiff fails to allege a claim of excessive force under the
Fourteenth Amendment because his “allegations fail to establish that the Defendants’ actions,
even if malevolent, constituted a malicious or sadistic effort to inflict harm.” Dkt. No. 29-10 at
14-15. The Court disagrees and notes the excessive force cases relied upon by Defendants are
inapposite. See, e.g., DeArmas v. Jaycox, No. 92 CIV. 6139, 1993 WL 37501, at *4 (S.D.N.Y.
Feb. 8, 1993) (dismissing Eighth Amendment excessive force claim).
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Taking Plaintiff’s allegations as true and drawing all reasonable inferences in Plaintiff’s
favor as the Court must at this stage, Plaintiff has plausibly alleged Defendant Armstrong’s use
of force “was objectively unreasonable.” Kingsley, 576 U.S. at 396-97. To that end, Plaintiff
pleads facts suggesting he was assaulted on September 16, 2021, without any justification. Dkt.
No. 13 at 4-5. He provides details about where and when the assault occurred and provides facts
regarding the alleged conduct, including that Defendant Armstrong “with full force [g]rabbed
[him] by his neck and throat and slammed [him] against the wall[,] and “struck him several
times” that allegedly resulted in a “serious neck [injury] and “back pain[.]” Id.; see, e.g., Marom
v. City of New York, No. 15-CV-2017 (PKC), 2016 WL 916424, at *7 (S.D.N.Y. Mar. 7, 2016),
on reconsideration in part, 2016 WL 5900217 (S.D.N.Y. July 29, 2016) (finding the plaintiff’s
excessive force claim survived a Rule 12 motion to dismiss where plaintiff alleged that “an
unidentified NYPD officer hit him ‘at least ten times in the face,’ [ ] and that, as a result, his face
was swollen and painful for around a week”).
Defendants further contend Plaintiff fails to plausibly allege Defendant Harney-Mathews
“had a reasonable opportunity” to intervene during the alleged September 16, 2021, incident.
Dkt. No. 29-10 at 20. Again, the Court disagrees. The Second Circuit has rejected the notion
that there is any “bright-line” for the amount of time under which a failure to intervene claim is
not actionable. Figueroa v. Mazza, 825 F.3d 89, 107 (2d Cir. 2016). Instead it has emphasized
that:
Failure-to-intervene claims can arise out of a limitless variety of
factual circumstances. 	In each case, the question whether a
defendant had a realistic chance to intercede will turn on such factors
as the number of officers present, their relative placement, the
environment in which they acted, the nature of the assault, and a
dozen other considerations. Among these considerations, of course,
the assault’s duration will always be relevant and will frequently
assume great importance.
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Id. Here, although the exact duration of the alleged excessive force incident is unclear, Plaintiff
alleges Defendant Armstrong engaged in a series of violent acts: first “screaming” at Plaintiff,
then grabbing Plaintiff by his neck, then slamming Plaintiff against the wall, and finally striking
Plaintiff “several” times. Dkt. No. 13 at 4-5. Plaintiff alleges Defendant Harney-Mathews was
present and a “witness” to the alleged assault. Id. These allegations plausibly suggest the entire
incident was of long enough duration that Defendant Harney-Mathews could have interceded at
some point.
Accordingly, the undersigned recommends Defendants’ motion to dismiss Plaintiff’s
Fourteenth Amendment excessive force and failure to intervene claims be denied.
V. 	CONCLUSION
Having carefully reviewed the record, the parties’ submissions, and the applicable law,
and for the reasons stated herein, it is hereby
RECOMMENDED that Defendants’ motion to dismiss, Dkt. No. 29, be DENIED; and
it is further
ORDERED that the Clerk serve a copy of the Report-Recommendation and Order on all
parties in accordance with Local Rules, along with copies of the unpublished decisions cited
herein in accordance with Lebron v. Sanders, 557 F.3d 76 (2d Cir. 2008) (per curiam).
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.8 Such objections shall be
8 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).
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filed with the Clerk of the Court. FAILURE TO OBJECT TO THIS REPORT WITHIN
FOURTEEN (14) DAYS WILL PRECLUDE APPELLATE REVIEW. 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)); 28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 72.
IT IS SO ORDERED.
Dated: December 31, 2025
Syracuse, New York
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