Anthony v. The City of Albany et al

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UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK
ALIK ANTHONY,
Plaintiff,
1:25-CV-1787
v. 	(ECC/DJS)
THE CITY OF ALBANY, et al.,
Defendants.
APPEARANCES:
ALIK ANTHONY
Plaintiff, Pro Se
6011
Albany County Correctional Facility
840 Albany Shaker Road
Albany, NY 12211
DANIEL J. STEWART
United States Magistrate Judge
REPORT-RECOMMENDATION and ORDER
I. INTRODUCTION
On 	March 	9, 	2026, 	the 	undersigned 	issued 	a 	Report-Recommendation
recommending that the Complaint in this matter, Dkt. No. 1, Compl., be partially
dismissed, with leave to amend certain claims. Dkt. No. 16. Plaintiff filed objections to
the Report-Recommendation. Dkt. Nos. 20 & 21. Plaintiff thereafter filed a Motion for
Leave to File an Amended Complaint (the “Motion”). Dkt. No. 23. The District Court
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denied the Motion “as moot, as Plaintiff [wa]s entitled to amend his complaint once as a
matter of course under Federal Rule of Civil Procedure 15(a)(1),” and directed the Clerk
“to docket the amended complaint . . . as a separate entry on the docket.” 	Dkt. No. 25.
The District Court has now referred the Amended Complaint for review under 28 U.S.C.
§ 1915. Id.; see Dkt. No. 26, Am. Compl.
The legal standard for review under Section 1915 was previously outlined in this
Court’s prior decision, Dkt. No. 16 at pp. 6-7, and need not be recounted in detail herein.
In summary, this Court’s task under Section 1915(e) is to consider whether Plaintiff’s
Amended Complaint “(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).1 	Courts undertaking this review should
liberally construe the pleadings. Burgos v. Hopkins, 14 F.3d 787, 790 (2d Cir. 1994).
II. DISCUSSION
A. Claims the Court Previously Recommended Proceed
On initial review of the original Complaint, the Court recommended that the
following claims be permitted to proceed: the first cause of action for false arrest and
imprisonment 	as 	to 	Defendants 	Brett 	Barnard 	(“Barnard”), 	Robert 	Rosenberger
(“Rosenberger”), and Jane Doe (“Doe”) in their individual capacities; the second cause
1 To determine whether an action is frivolous, a court must look to see whether the complaint “lacks an arguable
basis either in law or in fact.” Neitzke v. Williams, 490 U.S. 319, 325 (1989).
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of action for unlawful confinement and false imprisonment as to Defendants Barnard,
Rosenberger, Doe, and Randy Schuler (“Schuler”) in their individual capacities; the
fourth cause of action for malicious prosecution as to Defendant Schuler in his individual
capacity; the fifth cause of action for unlawful search and seizure as to Defendants
Barnard, Rosenberger, and Doe in their individual capacities; and the sixth cause of action
for right to privacy as to Defendants Barnard, Rosenberger, and Doe in their individual
capacities. Dkt. No. 16 at pp. 12-13, 15-19, & 25-26.
Only a few changes are made to these claims in the Amended Complaint.
Compare Compl. at pp. 15-19 with Am. Compl. at pp. 17-21. The causes of actions are
renumbered, and Jennifer Colon (“Colon”) is named in place of Doe, id., which has no
impact on the viability of the underlying claims. Additionally, some of these claims are
now brought against additional Defendants, the propriety of which is addressed in more
detail below, see infra Section B, but again has no impact on the claims that the Court
previously permitted to proceed. 	Otherwise, the pleadings contained in the Amended
Complaint do not substantively differ from the pleadings contained in the Complaint as
to these claims. Compare Compl. at pp. 15-19 with Am. Compl. at pp. 17-21.
Accordingly, the Court again recommends that these claims be permitted to
proceed, including Plaintiff’s: first cause of action for unlawful search and seizure, second
cause of action for right to privacy, and third cause of action for false arrest against
Defendants Barnard, Rosenberger, and Colon in their individual capacities; fourth cause
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of action for false imprisonment against Defendants Barnard, Rosenberger, Colon, and
Schuler in their individual capacities; and fifth cause of action for malicious prosecution
against Defendant Schuler in his individual capacity.
B. New Claims Raised in the Amended Complaint
The Amended Complaint seeks to assert several new claims that were not
contained in the original Complaint, including: a claim for false arrest against Defendant
Schuler; a claim for malicious prosecution against Defendants Barnard and Rosenberger;
and several claims against the City of Albany (“City”) and the County of Albany
(“County”) based on New York State common law. Compare Compl. with Am. Compl.
at pp. 20-22. The Court addresses each of these claims in turn.
1. Additional Claims against the Individual Defendants
a. False Arrest against Defendant Schuler
The Amended Complaint seeks to bring the third cause of action for false arrest
against an additional Defendant: Schuler. Compare Compl. at pp. 15-16 with Am. Compl.
at pp. 18-19; see also Dkt. No. 16 at pp. 12-13. 	The Amended Complaint sufficiently
states a claim for false arrest against Defendant Schuler by alleging that he was the police
officer who arrested Plaintiff for failure to register his social media accounts, and further
alleges that Defendant Schuler failed to conduct an independent investigation before the
charges were brought against Plaintiff. 	Am. Compl. at ¶¶ 5, 38-39, 41, 44, & 63.
Additionally, the Court notes that it recommended that the fourth cause of action for false
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imprisonment be permitted to proceed against Defendant Schuler in his individual
capacity, see supra at Section A, and courts have found that “[f]alse arrest [and] false
imprisonment . . . are functionally the same cause of action.” 	Harris v. Summers, 2014
WL 1340032, at *5 (N.D.N.Y. Apr. 3, 2014). Accordingly, the Court recommends that
Plaintiff’s third cause of action for false arrest against Defendant Schuler in his individual
capacity be permitted to proceed.
b. Malicious Prosecution against Defendants Rosenberger and Barnard
The Complaint originally asserted a claim for abuse of process against, among
others, Defendants Barnard and Rosenberger. Compl. at p. 17. In support of this claim,
the Complaint alleged that these Defendants “initiated the parole revocation process
against the [P]laintiff without probable cause after an unreasonable search and seizure of
his two cellphones without a warrant and without [P]laintiff’s oral or written consent.”
Id. at ¶ 75. On initial review of the Complaint, the Court recommended dismissal of this
claim, having found that it, at most, alleged an improper purpose, but did not allege that
Defendants aimed to achieve a collateral purpose beyond Plaintiff’s criminal prosecution,
which is required to state a claim for abuse of process. Dkt. No. 16 at pp. 14-15.
The Amended Complaint does not make a second attempt to state a claim for abuse
of process. See generally Am. Compl. However, the same facts that were used to support
the original Complaint’s abuse of process claim are alleged in support of the Amended
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Complaint’s malicious prosecution claim against Defendants Barnard and Rosenberger.
Compare Compl. at p. 17 with Am. Compl. at p. 20.
Namely, 	the 	Amended 	Complaint 	alleges 	that 	Defendants 	Barnard 	and
Rosenberger “initiated Parole Revocation Proceedings against [Plaintiff] . . . without just
cause or reason and they lacked probable cause and/or jurisdiction to secure and issue the
parole revocation warrant because it was obtained as a result of their unlawful search of
[Plaintiff’s] cellphones.” Am. Compl. at ¶ 68. The Amended Complaint further alleges
that Defendants Barnard and Rosenberger “made up legally false charges and multiple
false misleading allegations in their parole violation report against [Plaintiff].” Id. The
Amended Complaint states that Defendants Barnard and Rosenberger took these actions
“out of spite and vindictiveness” and “because they are white privileged parole officers.”
Id. 	As such, the Amended Complaint sufficiently alleges that Defendants Barnard and
Rosenberger played a role in Plaintiff’s allegedly malicious prosecution.
In addition, the Court notes that it has already recommended that the District Court
find that Plaintiff has otherwise sufficiently pled each of the elements necessary to state
a claim for malicious prosecution as against Defendant Schuler in his individual capacity.
See supra section A; see also Dkt. No. 16 at p. 16.
Accordingly, the Court recommends that Plaintiff’s fifth cause of action for
malicious prosecution against Defendants Barnard and Rosenberger in their individual
capacities be permitted to proceed.
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2. Claims Against the City and County
a. Section 1983 Municipal Liability
The Complaint’s eighth cause of action had alleged municipal liability against the
Defendants City and County for their failure to train and supervise, as well as their failure
to intervene. 	Compl. at p. 20. 	The Court previously recommended dismissal of these
claims 	based 	on 	the 	Complaint’s 	failure 	to 	clearly 	identify 	or 	demonstrate 	an
unconstitutional policy that caused Plaintiff’s claimed constitutional violations. Dkt. No.
16 at pp. 8-9.
“It is not clear to the court that [P]laintiff has actually alleged a cause of action
against [Defendants City and County] pursuant to Section 1983 under a theory of
municipal liability,” Anderson v. City of New York, 817 F. Supp. 2d 77, 98 (E.D.N.Y.
2011), in the Amended Complaint. See generally Am. Compl. To the extent that Plaintiff
has done so, the Court again recommends dismissal of these claims because Plaintiff was
given leave to amend the Complaint so that he could more sufficiently plead an
unconstitutional policy, Dkt. No. 16 at pp. 8-9 & 23, but did not cure this deficiency in
the Amended Complaint. See generally Am. Compl.
b. Common Law Liability under Respondeat Superior
Plaintiff brings several claims against Defendants City and County pursuant to
“New York State Common Law Tort” based on the doctrine of respondeat superior. Am.
Compl. at ¶¶ 64, 67, 70, 74, & 75-76. While “a theory of respondeat superior or vicarious
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liability cannot give rise to municipal liability under § 1983,” Charlotten v. Heid, 2011
WL 3423826, at *9 (N.D.N.Y. Aug. 4, 2011) (citing Canton v. Harris, 489 U.S. 378, 385
(1989) and Collins v. City of Harker Heights, 503 U.S. 115, 120-121 (1992)), “a
municipality may be vicariously liable for the common law torts of its employees.”
Walker v. Vill. of Freeport, 2016 WL 4133137, at *9 (E.D.N.Y. June 13, 2016), report
and 	recommendation 	adopted, 	2016 	WL 	4132252 	(E.D.N.Y. 	Aug. 	2, 	2016).
Consequently, “[i]f the plaintiff is able to ‘establish any of [his] pendent state law claims,
[he] can recover [for those claims] . . . under the common law doctrine of respondeat
superior.’” Anderson v. City of New York, 817 F. Supp. 2d at 98 (quoting Clarke v. City
of New York, 1999 WL 608857, at *14 (E.D.N.Y. July 22, 1999)) (alterations in original).
In the Amended Complaint, the third and fourth causes of action allege that the
Defendant City is liable for the false arrest and false imprisonment of Plaintiff by
Defendant Schuler because Defendant Schuler was acting within the scope of his
employment as a detective of the Albany City Police Department when he falsely arrested
and imprisoned Plaintiff. 	Am. Compl. at ¶¶ 5, 64, & 67. 	Similarly, the fifth cause of
action alleges that Defendants City and County are liable for the malicious prosecution
of Plaintiff by Defendant Schuler and Assistant Albany County District Attorney
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Michelle Viera (“Viera”),2 who acted within the scope of their employment when they
maliciously prosecuted Plaintiff. Id. at ¶ 70.
The 	Court 	has 	recommended 	that 	Plaintiff’s 	claims 	for 	false 	arrest, 	false
imprisonment, and malicious prosecution be permitted to proceed against Defendant
Schuler. 	See supra Sections A & B.1.a. 	Further, courts have held that a municipality
may be held liable for common law false arrest, false imprisonment, and malicious
prosecution on a theory of respondeat superior. See Anderson v. City of New York, 817
F. Supp. 2d at 98 (“[U]nder the common law, unlike § 1983, a municipality may be held
liable for common law false arrest and malicious prosecution on a theory of respondeat
superior.”); Leibovitz v. City of New York, 2016 WL 3671232, at *9 (S.D.N.Y. Mar. 17,
2016) (“Unlike cases brought under § 1983, municipalities may be liable for the common
law torts, like false arrest and malicious prosecution, committed by their employees under
the doctrine of respondeat superior.”), report and recommendation adopted, 2016 WL
3661530 (S.D.N.Y. July 1, 2016); see also Harris v. Summers, 2014 WL 1340032, at *5
2 Plaintiff was required to identify an employee of the Defendant County to provide the requisite link establishing
respondeat superior liability against the Defendant County. See Aponte v. City of New York, 2016 WL 5394754, at
*8 (S.D.N.Y. Sept. 26, 2016) (dismissing claim based on respondeat superior liability against the city where
“[p]laintiff d[id] not identify [c]ity employees” and “instead nam[ed] exclusively New York State employees as
individual [d]efendants”). Plaintiff has done so here by referencing Viera as the Assistant Albany County District
Attorney who allegedly maliciously prosecuted Plaintiff. Am. Compl. at ¶ 70. While Viera is not named as a
Defendant in the Amended Complaint, see Am. Compl. at pp. 1-2, that is of no moment. “[T]here is no requirement
that respondeat superior liability be predicated on the conduct of an individual who is named as a defendant in the
suit.” Tardif v. City of New York, 344 F. Supp. 3d 579, 592 (S.D.N.Y. 2018) (citing Alli v. Steward-Bowden, 2013
WL 5229995, at *2 (S.D.N.Y. Sept. 17, 2013) (“[A] state law claim may proceed on a respondeat superior theory
against a municipality, even though the individual employee who acted in a wrongful manner has not been
identified.”)). “A plaintiff may sue an individual’s employer regardless of whether [the plaintiff] sues the perpetrator
of the wrongful conduct individually.” Id. (citing cases).
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(“False arrest [and] false imprisonment . . . are functionally the same cause of action”).
As such, the Court recommends that Plaintiff’s third and fourth causes of action against
Defendant City and Plaintiff’s fifth cause of action against Defendants City and County
be permitted to proceed.
The sixth cause of action contained in the Amended Complaint is entitled “loss of
property.” 	Am. Compl. at p. 22. 	In support of this claim, Plaintiff alleges that he was
“held in jail” because of his “unlawful arrest” and the refusal of his court appointed
attorney, Stephen Barry (“Barry”), “to submit a Bail Application on [his] behalf and a
CPL 190.80 release motion.” 	Id. at ¶ 74. 	As a result, the Amended Complaint asserts
that Plaintiff was “not able to get out and get the money to pay [his] rent and,”
consequently, “lost [his] apartment and everything in it.” Id. The Amended Complaint
states that this claim is asserted against the County pursuant to “New York State Common
Law Tort” on the basis that the County “is liable for malfeasance of its employees.” Id.
The Court is not aware of any cause of action for “loss of property” pursuant to federal
law, New York common law, or otherwise. 	Any property that Plaintiff claims was lost
because of his allegedly unlawful arrest may be a component of the damages Plaintiff
seeks for his false arrest, false imprisonment, and malicious prosecution claims, but would
not provide an independent cause of action. As such, the Court recommends dismissal of
this claim.
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Finally, the seventh cause of action alleges that the Defendant County is liable for
the attorney malpractice committed by Barry3 because Barry was acting within the scope
of his employment with the Albany County Public Defender’s Office when he engaged
in attorney malpractice in violation of professional standards applicable under New York
State law. 	Id. at ¶¶ 75-76. 	The nature of Plaintiff’s malpractice claim is unclear.
Precisely what conduct his attorney is alleged to have engaged in is not stated with
specificity. He alleges certain conduct, for example, that would not likely form the basis
for a malpractice claim, like the failure to file motions. 	Am. Compl. at ¶ 74; see, e.g.,
Rhee-Karn v. Lask, 2018 WL 11459415, at *8 (S.D.N.Y. Sept. 30, 2018), clarified on
denial of reconsideration, 2019 WL 13249103 (S.D.N.Y. Jan. 14, 2019) (judgments about
what types of motions to file do not typically give rise to malpractice).
More fundamentally, in New York, courts “require that the criminal client bear the
unique burden to plead and prove that the client’s conviction was due to the attorney’s
actions alone and not due to some consequence of his guilt.” Britt v. Legal Aid Soc., Inc.,
95 N.Y.2d 443, 447 (2000). That requires that “criminal defendants must free themselves
of the conviction, for the conviction precludes those potential plaintiffs from asserting
innocence in a civil suit.” Id. The Amended Complaint concedes that Plaintiff pled guilty
to at least one of the parole violations lodged against him, Am. Compl. at ¶¶ 34-35.
3 As with Viera, Barry is not named as a Defendant in the Amended Complaint. See Am. Compl. at pp. 1-2. For
the reasons previously explained, see supra n.2, Plaintiff’s decision not to name Barry as a Defendant does not
impact the viability of Plaintiff’s claim against the Defendant County.
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Further, Plaintiff does not dispute the propriety of his parole violation for use of fentanyl
or otherwise argue that he was innocent of this charge. See generally id. Thus, Plaintiff
cannot meet this heightened standard. Because Plaintiff has not sufficiently pled that he
could establish legal malpractice, his respondeat superior claim against the County
should be dismissed.
C. Official Capacity Claims
The Amended Complaint is brought against the Defendants in both their individual
and official capacity. Am. Compl. at p. 1. The Court previously recommended dismissal
of the official capacity claims because individual Defendants are not liable in their official
capacities under Section 1983 and because there was no indication that Plaintiff could
assert a direct causal link between a municipal policy and any alleged constitutional
deprivation. Dkt. No. 16 at pp. 9-10. Here, having recommended dismissal of any claim
seeking to impose municipal liability under Section 1983, see supra Section B.2.a, the
Court again recommends that the official capacity claims brought against the individual
Defendants be dismissed.
D. Leave to Amend
“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.’” Bruce v. Tompkins Cnty. Dep’t
of Soc. Servs. ex rel. Kephart, 2015 WL 151029, at *4 (N.D.N.Y. Jan. 7, 2015) (quoting
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Branum v. Clark, 927 F.2d 698, 704-05 (2d Cir. 1991)). Plaintiff has already been granted
leave to amend. 	Dkt. No. 16 at p. 23. 	Given the nature of the allegations, the Court
recommends that further leave to amend not be granted.
III. CONCLUSION
For the reasons stated herein, it is hereby
RECOMMENDED, that Plaintiff’s claims against Defendants City and County
pursuant to Section 1983 be DISMISSED with prejudice and without leave to
amend; and it is further
RECOMMENDED, that Plaintiff’s sixth and seventh causes of action be
DISMISSED; and it is further
RECOMMENDED, that Plaintiff’s first cause of action for unlawful search
and seizure and second cause of action for right to privacy against Defendants
Barnard, Rosenberger, and Colon in their individual capacities; third cause of
action for false arrest and fourth cause of action for false imprisonment against
Defendants 	Barnard, 	Rosenberger, 	Colon, 	and 	Schuler 	in 	their 	individual
capacities, as well as against Defendant City pursuant to state common law; and fifth
cause of action for malicious prosecution against Defendant Schuler, Barnard, and
Rosenberger in their individual capacities, as well as against Defendants City and
County pursuant to state common law, be permitted to proceed, and that they be
directed to respond; and it is further
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RECOMMENDED, that all of Plaintiff’s claims against Defendants Schuler,
Barnard, Rosenberger, and Colon in their official capacities be DISMISSED with
prejudice; and it is
ORDERED, 	that 	the 	Clerk 	of 	the 	Court 	serve 	a 	copy 	of 	this 	Report-
Recommendation and Order upon the parties to this action.
Pursuant to 28 U.S.C. § 636(b)(1), the parties have fourteen (14)4 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 (14) DAYS WILL PRECLUDE APPELLATE REVIEW. 	Roldan v.
Racette, 984 F.2d 85, 89 (2d Cir. 1993) (citing Small v. Sec’y of Health and Human Servs.,
892 F.2d 15 (2d Cir. 1989)); see also 28 U.S.C. § 636(b)(1); F ED . R. CIV . P. 72 & 6(a).
Dated: May 28, 2026
Albany, New York
4 If you are proceeding pro se and are served with this Order by mail, three additional days will be added to the
fourteen-day period, meaning that you have seventeen days from the date the order was mailed to you to serve and
file objections. F ED. 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. C IV. P. 6(a)(1)(C).
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