3:25-cv-00103•Gidea v. OWEGO Police Department et al
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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.) Case 3:25-cv-00103-ECC-ML Document 8 Filed 12/16/25 Page 1 of 201
2 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)). Case 3:25-cv-00103-ECC-ML Document 8 Filed 12/16/25 Page 2 of 201
3 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. Case 3:25-cv-00103-ECC-ML Document 8 Filed 12/16/25 Page 3 of 201
4 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 Case 3:25-cv-00103-ECC-ML Document 8 Filed 12/16/25 Page 4 of 201
5 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.” Case 3:25-cv-00103-ECC-ML Document 8 Filed 12/16/25 Page 5 of 201
6 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.”). Case 3:25-cv-00103-ECC-ML Document 8 Filed 12/16/25 Page 6 of 201
7 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 Case 3:25-cv-00103-ECC-ML Document 8 Filed 12/16/25 Page 7 of 201
8 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). Case 3:25-cv-00103-ECC-ML Document 8 Filed 12/16/25 Page 8 of 201
9 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 Case 3:25-cv-00103-ECC-ML Document 8 Filed 12/16/25 Page 9 of 201
10 (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”)). Case 3:25-cv-00103-ECC-ML Document 8 Filed 12/16/25 Page 10 of 201
11 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. Case 3:25-cv-00103-ECC-ML Document 8 Filed 12/16/25 Page 11 of 201
12 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 Case 3:25-cv-00103-ECC-ML Document 8 Filed 12/16/25 Page 12 of 201
13 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. Case 3:25-cv-00103-ECC-ML Document 8 Filed 12/16/25 Page 13 of 201
14 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). 16 Case 3:25-cv-00103-ECC-ML Document 8 Filed 12/16/25 Page 14 of 201
Adams v. City of Syracuse, Slip Copy (2025) 2025 WL 2772081 © 2025 Thomson Reuters. No claim to original U.S. Government Works. 1 2025 WL 2772081 Only the Westlaw citation is currently available. United States District Court, N.D. New York. Robert ADAMS, Jr., Plaintiff, v. CITY OF SYRACUSE et al., Defendants. 5:21-cv-00650 (AMN/MJK) | Signed September 29, 2025 Attorneys and Law Firms A. CABRAL BONNER, ESQ., CHARLES A. BONNER, ESQ., LAW OFFICES OF BONNER & BONNER, 3060 Kerner Boulevard – Suite A, San Rafael, California 94901, Attorneys for Plaintiff. JESSE P. RYDER, ESQ., RYDER LAW FIRM, 6739 Myers Road, East Syracuse, New York 13257, Attorneys for Plaintiff. DANIELLE R. SMITH, ESQ., TODD M. LONG, ESQ., CITY OF SYRACUSE, CORPORATION COUNSEL, 233 East Washington Street, Room 300 City Hall, Syracuse, New York 13202, Attorneys for Defendants. MEMORANDUM-DECISION AND ORDER Anne M. Nardacci, United States District Judge: I. INTRODUCTION *1 On June 3, 2021, Robert Adams, Jr. (“Plaintiff”), commenced this civil rights action against Police Officers Joseph Tolone, 1 Aaron Cecile, and Lashonda Russell (the “Responding Officers”); Detectives Ryan Brimmer and Jeffrey Beauchine (the “Detectives” and together with the Responding Officers, the “Individual Defendants”); the City of Syracuse (“Defendant City,” and, together with the Individual Defendants, “Defendants”); Does 1-100 (the “Doe Defendants”); and others, alleging violations of federal and state law arising from his arrest and subsequent monthslong detention during a since-dismissed criminal prosecution. Dkt. No. 1 (“Complaint”). Presently before the Court 2 is Defendants’ motion for summary judgment pursuant to Rule 56 of the Federal Rules of Civil Procedure, Dkt. No. 77 (“Motion”), Plaintiff's opposition, Dkt. No. 85, and Defendants’ reply in further support, Dkt. No. 90. For the reasons set forth below, the Motion is granted in part and denied in part. II. BACKGROUND 3 A. The Parties Plaintiff is a black man who has lived in Syracuse for most of his life. See, e.g., Dkt. No. 77-44 at 16:5-17:4. In May 2019, he was 55 years old, approximately 5’7” in height and 160 pounds in weight, and lived in an apartment building located at 941 James Street. Dkt. No. 90-1 at ¶ 515; Dkt. No. 77-23. At that time, Plaintiff's medical diagnoses included, inter alia, alcoholism, depression, and schizophrenia. Dkt. No. 77-42 at 2-3; Dkt. No. 77-55 at ¶ 454. Defendant City is a large municipality in New York State with a police department that employs the Individual Defendants. As of May 2019, Officer Cecile had been a patrol officer for approximately two years, Dkt. No. 77-47 at 21:24-22:15; Officer Russell had been a patrol officer for approximately three years, Dkt. No. 77-46 at 9:17-25; Officer Tolone had been a patrol officer for approximately three years, Dkt. No. 77-48 at 9:24-10:2; Detective Brimmer had been a detective for less than three years, Dkt. No. 77-49 at 12:11-13:8; and Detective Beauchine had been a detective for approximately nine years, Dkt. No. 77-51 at 16:21-17:17. B. Relevant Events 1. May 1, 2016 Shortly after 7:30 p.m. on May 1, 2019, police (apparently including Officer Russell) and emergency medical services found Plaintiff intoxicated and lying on the side of a road in Syracuse. Dkt. No. 77-42 at 2, 50-51; Dkt. No. 77-46 at 104:15-25. Plaintiff was covered in feces and urine and reported drinking six to seven “Na[tt]y Daddy beverages,” a brand of malt liquor. Dkt. No. 77-42 at 2, 51; Dkt. No. 77-43 at 49:11-13. Plaintiff was transported to a local hospital emergency room for treatment, where his blood alcohol level (“BAC”) was measured at 0.422 percent later that night. 4 Dkt. No. 77-55 at ¶ 311; Dkt. No. 77-42 at 25. 2. May 6, 2016 a. 941 James Street Case 3:25-cv-00103-ECC-ML Document 8 Filed 12/16/25 Page 15 of 201
Adams v. City of Syracuse, Slip Copy (2025) 2025 WL 2772081 © 2025 Thomson Reuters. No claim to original U.S. Government Works. 2 *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 Case 3:25-cv-00103-ECC-ML Document 8 Filed 12/16/25 Page 16 of 201
Adams v. City of Syracuse, Slip Copy (2025) 2025 WL 2772081 © 2025 Thomson Reuters. No claim to original U.S. Government Works. 3 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. Case 3:25-cv-00103-ECC-ML Document 8 Filed 12/16/25 Page 17 of 201
Adams v. City of Syracuse, Slip Copy (2025) 2025 WL 2772081 © 2025 Thomson Reuters. No claim to original U.S. Government Works. 4 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 Case 3:25-cv-00103-ECC-ML Document 8 Filed 12/16/25 Page 18 of 201
Adams v. City of Syracuse, Slip Copy (2025) 2025 WL 2772081 © 2025 Thomson Reuters. No claim to original U.S. Government Works. 5 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. Case 3:25-cv-00103-ECC-ML Document 8 Filed 12/16/25 Page 19 of 201
Adams v. City of Syracuse, Slip Copy (2025) 2025 WL 2772081 © 2025 Thomson Reuters. No claim to original U.S. Government Works. 6 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. Case 3:25-cv-00103-ECC-ML Document 8 Filed 12/16/25 Page 20 of 201
Adams v. City of Syracuse, Slip Copy (2025) 2025 WL 2772081 © 2025 Thomson Reuters. No claim to original U.S. Government Works. 7 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. Case 3:25-cv-00103-ECC-ML Document 8 Filed 12/16/25 Page 21 of 201
Adams v. City of Syracuse, Slip Copy (2025) 2025 WL 2772081 © 2025 Thomson Reuters. No claim to original U.S. Government Works. 8 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[;]” Case 3:25-cv-00103-ECC-ML Document 8 Filed 12/16/25 Page 22 of 201
Adams v. City of Syracuse, Slip Copy (2025) 2025 WL 2772081 © 2025 Thomson Reuters. No claim to original U.S. Government Works. 9 “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. Case 3:25-cv-00103-ECC-ML Document 8 Filed 12/16/25 Page 23 of 201
Adams v. City of Syracuse, Slip Copy (2025) 2025 WL 2772081 © 2025 Thomson Reuters. No claim to original U.S. Government Works. 10 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. Case 3:25-cv-00103-ECC-ML Document 8 Filed 12/16/25 Page 24 of 201
Adams v. City of Syracuse, Slip Copy (2025) 2025 WL 2772081 © 2025 Thomson Reuters. No claim to original U.S. Government Works. 11 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 Case 3:25-cv-00103-ECC-ML Document 8 Filed 12/16/25 Page 25 of 201
Adams v. City of Syracuse, Slip Copy (2025) 2025 WL 2772081 © 2025 Thomson Reuters. No claim to original U.S. Government Works. 12 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. Case 3:25-cv-00103-ECC-ML Document 8 Filed 12/16/25 Page 26 of 201
Adams v. City of Syracuse, Slip Copy (2025) 2025 WL 2772081 © 2025 Thomson Reuters. No claim to original U.S. Government Works. 13 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 Case 3:25-cv-00103-ECC-ML Document 8 Filed 12/16/25 Page 27 of 201
Adams v. City of Syracuse, Slip Copy (2025) 2025 WL 2772081 © 2025 Thomson Reuters. No claim to original U.S. Government Works. 14 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 Case 3:25-cv-00103-ECC-ML Document 8 Filed 12/16/25 Page 28 of 201
Adams v. City of Syracuse, Slip Copy (2025) 2025 WL 2772081 © 2025 Thomson Reuters. No claim to original U.S. Government Works. 15 *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 Case 3:25-cv-00103-ECC-ML Document 8 Filed 12/16/25 Page 29 of 201
Adams v. City of Syracuse, Slip Copy (2025) 2025 WL 2772081 © 2025 Thomson Reuters. No claim to original U.S. Government Works. 16 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. Case 3:25-cv-00103-ECC-ML Document 8 Filed 12/16/25 Page 30 of 201
Adams v. City of Syracuse, Slip Copy (2025) 2025 WL 2772081 © 2025 Thomson Reuters. No claim to original U.S. Government Works. 17 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. Case 3:25-cv-00103-ECC-ML Document 8 Filed 12/16/25 Page 31 of 201
Adams v. City of Syracuse, Slip Copy (2025) 2025 WL 2772081 © 2025 Thomson Reuters. No claim to original U.S. Government Works. 18 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) Case 3:25-cv-00103-ECC-ML Document 8 Filed 12/16/25 Page 32 of 201
Adams v. City of Syracuse, Slip Copy (2025) 2025 WL 2772081 © 2025 Thomson Reuters. No claim to original U.S. Government Works. 19 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 Case 3:25-cv-00103-ECC-ML Document 8 Filed 12/16/25 Page 33 of 201
Adams v. City of Syracuse, Slip Copy (2025) 2025 WL 2772081 © 2025 Thomson Reuters. No claim to original U.S. Government Works. 20 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 Case 3:25-cv-00103-ECC-ML Document 8 Filed 12/16/25 Page 34 of 201
Adams v. City of Syracuse, Slip Copy (2025) 2025 WL 2772081 © 2025 Thomson Reuters. No claim to original U.S. Government Works. 21 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.”). Case 3:25-cv-00103-ECC-ML Document 8 Filed 12/16/25 Page 35 of 201
Adams v. City of Syracuse, Slip Copy (2025) 2025 WL 2772081 © 2025 Thomson Reuters. No claim to original U.S. Government Works. 22 *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 Case 3:25-cv-00103-ECC-ML Document 8 Filed 12/16/25 Page 36 of 201
Adams v. City of Syracuse, Slip Copy (2025) 2025 WL 2772081 © 2025 Thomson Reuters. No claim to original U.S. Government Works. 23 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)). Case 3:25-cv-00103-ECC-ML Document 8 Filed 12/16/25 Page 37 of 201
Adams v. City of Syracuse, Slip Copy (2025) 2025 WL 2772081 © 2025 Thomson Reuters. No claim to original U.S. Government Works. 24 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 Case 3:25-cv-00103-ECC-ML Document 8 Filed 12/16/25 Page 38 of 201
Adams v. City of Syracuse, Slip Copy (2025) 2025 WL 2772081 © 2025 Thomson Reuters. No claim to original U.S. Government Works. 25 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 Case 3:25-cv-00103-ECC-ML Document 8 Filed 12/16/25 Page 39 of 201
Adams v. City of Syracuse, Slip Copy (2025) 2025 WL 2772081 © 2025 Thomson Reuters. No claim to original U.S. Government Works. 26 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). Case 3:25-cv-00103-ECC-ML Document 8 Filed 12/16/25 Page 40 of 201
Adams v. City of Syracuse, Slip Copy (2025) 2025 WL 2772081 © 2025 Thomson Reuters. No claim to original U.S. Government Works. 27 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 Case 3:25-cv-00103-ECC-ML Document 8 Filed 12/16/25 Page 41 of 201
Adams v. City of Syracuse, Slip Copy (2025) 2025 WL 2772081 © 2025 Thomson Reuters. No claim to original U.S. Government Works. 28 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 Case 3:25-cv-00103-ECC-ML Document 8 Filed 12/16/25 Page 42 of 201
Adams v. City of Syracuse, Slip Copy (2025) 2025 WL 2772081 © 2025 Thomson Reuters. No claim to original U.S. Government Works. 29 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 Case 3:25-cv-00103-ECC-ML Document 8 Filed 12/16/25 Page 43 of 201
Adams v. City of Syracuse, Slip Copy (2025) 2025 WL 2772081 © 2025 Thomson Reuters. No claim to original U.S. Government Works. 30 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. Case 3:25-cv-00103-ECC-ML Document 8 Filed 12/16/25 Page 44 of 201
Adams v. City of Syracuse, Slip Copy (2025) 2025 WL 2772081 © 2025 Thomson Reuters. No claim to original U.S. Government Works. 31 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 45 of 201
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 Case 3:25-cv-00103-ECC-ML Document 8 Filed 12/16/25 Page 46 of 201
Alexander v. City of New York, Not Reported in Fed. Supp. (2019) © 2025 Thomson Reuters. No claim to original U.S. Government Works. 2 [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 Case 3:25-cv-00103-ECC-ML Document 8 Filed 12/16/25 Page 47 of 201
Alexander v. City of New York, Not Reported in Fed. Supp. (2019) © 2025 Thomson Reuters. No claim to original U.S. Government Works. 3 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 Case 3:25-cv-00103-ECC-ML Document 8 Filed 12/16/25 Page 48 of 201
Alexander v. City of New York, Not Reported in Fed. Supp. (2019) © 2025 Thomson Reuters. No claim to original U.S. Government Works. 4 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, Case 3:25-cv-00103-ECC-ML Document 8 Filed 12/16/25 Page 49 of 201
Alexander v. City of New York, Not Reported in Fed. Supp. (2019) © 2025 Thomson Reuters. No claim to original U.S. Government Works. 5 333-34 (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 Case 3:25-cv-00103-ECC-ML Document 8 Filed 12/16/25 Page 50 of 201
Alexander v. City of New York, Not Reported in Fed. Supp. (2019) © 2025 Thomson Reuters. No claim to original U.S. Government Works. 6 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 Case 3:25-cv-00103-ECC-ML Document 8 Filed 12/16/25 Page 51 of 201
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 Case 3:25-cv-00103-ECC-ML Document 8 Filed 12/16/25 Page 53 of 201
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 Case 3:25-cv-00103-ECC-ML Document 8 Filed 12/16/25 Page 55 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. 2 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 Case 3:25-cv-00103-ECC-ML Document 8 Filed 12/16/25 Page 56 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. 3 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 Case 3:25-cv-00103-ECC-ML Document 8 Filed 12/16/25 Page 57 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. 4 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 Case 3:25-cv-00103-ECC-ML Document 8 Filed 12/16/25 Page 58 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. 5 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). Case 3:25-cv-00103-ECC-ML Document 8 Filed 12/16/25 Page 59 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. 6 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). Case 3:25-cv-00103-ECC-ML Document 8 Filed 12/16/25 Page 60 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. 7 *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) Case 3:25-cv-00103-ECC-ML Document 8 Filed 12/16/25 Page 61 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. 8 (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 Case 3:25-cv-00103-ECC-ML Document 8 Filed 12/16/25 Page 62 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. 9 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. Case 3:25-cv-00103-ECC-ML Document 8 Filed 12/16/25 Page 63 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. 10 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 Case 3:25-cv-00103-ECC-ML Document 8 Filed 12/16/25 Page 64 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. 11 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). Case 3:25-cv-00103-ECC-ML Document 8 Filed 12/16/25 Page 65 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. 12 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. Case 3:25-cv-00103-ECC-ML Document 8 Filed 12/16/25 Page 66 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. 13 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. Case 3:25-cv-00103-ECC-ML Document 8 Filed 12/16/25 Page 67 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. 14 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). 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 68 of 201
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, Case 3:25-cv-00103-ECC-ML Document 8 Filed 12/16/25 Page 69 of 201
Besley v. Borden, Not Reported in Fed. Supp. (2022) © 2025 Thomson Reuters. No claim to original U.S. Government Works. 2 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, Case 3:25-cv-00103-ECC-ML Document 8 Filed 12/16/25 Page 70 of 201
Besley v. Borden, Not Reported in Fed. Supp. (2022) © 2025 Thomson Reuters. No claim to original U.S. Government Works. 3 666 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 Case 3:25-cv-00103-ECC-ML Document 8 Filed 12/16/25 Page 71 of 201
Besley v. Borden, Not Reported in Fed. Supp. (2022) © 2025 Thomson Reuters. No claim to original U.S. Government Works. 4 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. Case 3:25-cv-00103-ECC-ML Document 8 Filed 12/16/25 Page 72 of 201
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 Case 3:25-cv-00103-ECC-ML Document 8 Filed 12/16/25 Page 73 of 201
Bronnenberg v. Eggar, Not Reported in Fed. Supp. (2019) © 2025 Thomson Reuters. No claim to original U.S. Government Works. 2 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) Case 3:25-cv-00103-ECC-ML Document 8 Filed 12/16/25 Page 74 of 201
Bronnenberg v. Eggar, Not Reported in Fed. Supp. (2019) © 2025 Thomson Reuters. No claim to original U.S. Government Works. 3 (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. Case 3:25-cv-00103-ECC-ML Document 8 Filed 12/16/25 Page 75 of 201
Bronnenberg v. Eggar, Not Reported in Fed. Supp. (2019) © 2025 Thomson Reuters. No claim to original U.S. Government Works. 4 (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. Case 3:25-cv-00103-ECC-ML Document 8 Filed 12/16/25 Page 76 of 201
Bronnenberg v. Eggar, Not Reported in Fed. Supp. (2019) © 2025 Thomson Reuters. No claim to original U.S. Government Works. 5 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. Case 3:25-cv-00103-ECC-ML Document 8 Filed 12/16/25 Page 77 of 201
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 Case 3:25-cv-00103-ECC-ML Document 8 Filed 12/16/25 Page 78 of 201
Brown v. Peters, Not Reported in F.Supp. (1997) © 2025 Thomson Reuters. No claim to original U.S. Government Works. 2 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 Case 3:25-cv-00103-ECC-ML Document 8 Filed 12/16/25 Page 79 of 201
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, Case 3:25-cv-00103-ECC-ML Document 8 Filed 12/16/25 Page 80 of 201
Brown v. Peters, Not Reported in F.Supp. (1997) © 2025 Thomson Reuters. No claim to original U.S. Government Works. 4 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 Case 3:25-cv-00103-ECC-ML Document 8 Filed 12/16/25 Page 81 of 201
Brown v. Peters, Not Reported in F.Supp. (1997) © 2025 Thomson Reuters. No claim to original U.S. Government Works. 5 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 Case 3:25-cv-00103-ECC-ML Document 8 Filed 12/16/25 Page 82 of 201
Brown v. Peters, Not Reported in F.Supp. (1997) © 2025 Thomson Reuters. No claim to original U.S. Government Works. 6 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. Case 3:25-cv-00103-ECC-ML Document 8 Filed 12/16/25 Page 83 of 201
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 Case 3:25-cv-00103-ECC-ML Document 8 Filed 12/16/25 Page 84 of 201
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). 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 85 of 201
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 Case 3:25-cv-00103-ECC-ML Document 8 Filed 12/16/25 Page 86 of 201
Crown v. Wagenstein, Not Reported in F.Supp. (1998) © 2025 Thomson Reuters. No claim to original U.S. Government Works. 2 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 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 87 of 201
Flagg v. NYS Division of Parole, Not Reported in Fed. Supp. (2019) © 2025 Thomson Reuters. No claim to original U.S. Government Works. 1 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 Case 3:25-cv-00103-ECC-ML Document 8 Filed 12/16/25 Page 88 of 201
Flagg v. NYS Division of Parole, Not Reported in Fed. Supp. (2019) © 2025 Thomson Reuters. No claim to original U.S. Government Works. 2 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 Case 3:25-cv-00103-ECC-ML Document 8 Filed 12/16/25 Page 89 of 201
Flagg v. NYS Division of Parole, Not Reported in Fed. Supp. (2019) © 2025 Thomson Reuters. No claim to original U.S. Government Works. 3 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 Case 3:25-cv-00103-ECC-ML Document 8 Filed 12/16/25 Page 90 of 201
Flagg v. NYS Division of Parole, Not Reported in Fed. Supp. (2019) © 2025 Thomson Reuters. No claim to original U.S. Government Works. 4 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. Case 3:25-cv-00103-ECC-ML Document 8 Filed 12/16/25 Page 91 of 201
Flagg v. NYS Division of Parole, Not Reported in Fed. Supp. (2019) © 2025 Thomson Reuters. No claim to original U.S. Government Works. 5 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 Case 3:25-cv-00103-ECC-ML Document 8 Filed 12/16/25 Page 92 of 201
Flagg v. NYS Division of Parole, Not Reported in Fed. Supp. (2019) © 2025 Thomson Reuters. No claim to original U.S. Government Works. 6 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. Case 3:25-cv-00103-ECC-ML Document 8 Filed 12/16/25 Page 93 of 201
Flagg v. NYS Division of Parole, Not Reported in Fed. Supp. (2019) © 2025 Thomson Reuters. No claim to original U.S. Government Works. 7 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 Case 3:25-cv-00103-ECC-ML Document 8 Filed 12/16/25 Page 94 of 201
Flagg v. NYS Division of Parole, Not Reported in Fed. Supp. (2019) © 2025 Thomson Reuters. No claim to original U.S. Government Works. 8 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. Case 3:25-cv-00103-ECC-ML Document 8 Filed 12/16/25 Page 95 of 201
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. Case 3:25-cv-00103-ECC-ML Document 8 Filed 12/16/25 Page 96 of 201
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). Case 3:25-cv-00103-ECC-ML Document 8 Filed 12/16/25 Page 97 of 201
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”). Case 3:25-cv-00103-ECC-ML Document 8 Filed 12/16/25 Page 98 of 201
Gonzalez v. City of New York, Not Reported in F.Supp. (1998) © 2025 Thomson Reuters. No claim to original U.S. Government Works. 3 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) Case 3:25-cv-00103-ECC-ML Document 8 Filed 12/16/25 Page 100 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. 2 (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. Case 3:25-cv-00103-ECC-ML Document 8 Filed 12/16/25 Page 101 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. 3 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.”). Case 3:25-cv-00103-ECC-ML Document 8 Filed 12/16/25 Page 102 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. 4 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 Case 3:25-cv-00103-ECC-ML Document 8 Filed 12/16/25 Page 103 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. 5 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 Case 3:25-cv-00103-ECC-ML Document 8 Filed 12/16/25 Page 104 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. 6 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 Case 3:25-cv-00103-ECC-ML Document 8 Filed 12/16/25 Page 105 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. 7 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). Case 3:25-cv-00103-ECC-ML Document 8 Filed 12/16/25 Page 106 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. 8 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 Case 3:25-cv-00103-ECC-ML Document 8 Filed 12/16/25 Page 107 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. 9 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.) Case 3:25-cv-00103-ECC-ML Document 8 Filed 12/16/25 Page 108 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. 10 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. Case 3:25-cv-00103-ECC-ML Document 8 Filed 12/16/25 Page 109 of 201
Jenkins v. Raytheon Technologies Corporation, Not Reported in Fed. Supp. (2023) © 2025 Thomson Reuters. No claim to original U.S. Government Works. 1 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 Case 3:25-cv-00103-ECC-ML Document 8 Filed 12/16/25 Page 110 of 201
Jenkins v. Raytheon Technologies Corporation, Not Reported in Fed. Supp. (2023) © 2025 Thomson Reuters. No claim to original U.S. Government Works. 2 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). Case 3:25-cv-00103-ECC-ML Document 8 Filed 12/16/25 Page 111 of 201
Jenkins v. Raytheon Technologies Corporation, Not Reported in Fed. Supp. (2023) © 2025 Thomson Reuters. No claim to original U.S. Government Works. 3 *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, Case 3:25-cv-00103-ECC-ML Document 8 Filed 12/16/25 Page 112 of 201
Jenkins v. Raytheon Technologies Corporation, Not Reported in Fed. Supp. (2023) © 2025 Thomson Reuters. No claim to original U.S. Government Works. 4 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 Case 3:25-cv-00103-ECC-ML Document 8 Filed 12/16/25 Page 113 of 201
Jenkins v. Raytheon Technologies Corporation, Not Reported in Fed. Supp. (2023) © 2025 Thomson Reuters. No claim to original U.S. Government Works. 5 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. Case 3:25-cv-00103-ECC-ML Document 8 Filed 12/16/25 Page 114 of 201
Jenkins v. Raytheon Technologies Corporation, Not Reported in Fed. Supp. (2023) © 2025 Thomson Reuters. No claim to original U.S. Government Works. 6 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. Case 3:25-cv-00103-ECC-ML Document 8 Filed 12/16/25 Page 115 of 201
Jenkins v. Raytheon Technologies Corporation, Not Reported in Fed. Supp. (2023) © 2025 Thomson Reuters. No claim to original U.S. Government Works. 7 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 Case 3:25-cv-00103-ECC-ML Document 8 Filed 12/16/25 Page 116 of 201
Jenkins v. Raytheon Technologies Corporation, Not Reported in Fed. Supp. (2023) © 2025 Thomson Reuters. No claim to original U.S. Government Works. 8 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. Case 3:25-cv-00103-ECC-ML Document 8 Filed 12/16/25 Page 117 of 201
Jenkins v. Raytheon Technologies Corporation, Not Reported in Fed. Supp. (2023) © 2025 Thomson Reuters. No claim to original U.S. Government Works. 9 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 Case 3:25-cv-00103-ECC-ML Document 8 Filed 12/16/25 Page 118 of 201
Jenkins v. Raytheon Technologies Corporation, Not Reported in Fed. Supp. (2023) © 2025 Thomson Reuters. No claim to original U.S. Government Works. 10 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 Case 3:25-cv-00103-ECC-ML Document 8 Filed 12/16/25 Page 119 of 201
Jenkins v. Raytheon Technologies Corporation, Not Reported in Fed. Supp. (2023) © 2025 Thomson Reuters. No claim to original U.S. Government Works. 11 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. Case 3:25-cv-00103-ECC-ML Document 8 Filed 12/16/25 Page 120 of 201
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, Case 3:25-cv-00103-ECC-ML Document 8 Filed 12/16/25 Page 121 of 201
Johnson v. City of New York, Not Reported in F.Supp.2d (2000) © 2025 Thomson Reuters. No claim to original U.S. Government Works. 2 996 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). Case 3:25-cv-00103-ECC-ML Document 8 Filed 12/16/25 Page 122 of 201
Johnson v. City of New York, Not Reported in F.Supp.2d (2000) © 2025 Thomson Reuters. No claim to original U.S. Government Works. 3 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 Case 3:25-cv-00103-ECC-ML Document 8 Filed 12/16/25 Page 123 of 201
Johnson v. City of New York, Not Reported in F.Supp.2d (2000) © 2025 Thomson Reuters. No claim to original U.S. Government Works. 4 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 Case 3:25-cv-00103-ECC-ML Document 8 Filed 12/16/25 Page 125 of 201
Joyner v. County of Cayuga, Not Reported in Fed. Supp. (2020) © 2025 Thomson Reuters. No claim to original U.S. Government Works. 2 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). Case 3:25-cv-00103-ECC-ML Document 8 Filed 12/16/25 Page 126 of 201
Joyner v. County of Cayuga, Not Reported in Fed. Supp. (2020) © 2025 Thomson Reuters. No claim to original U.S. Government Works. 3 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 Case 3:25-cv-00103-ECC-ML Document 8 Filed 12/16/25 Page 127 of 201
Joyner v. County of Cayuga, Not Reported in Fed. Supp. (2020) © 2025 Thomson Reuters. No claim to original U.S. Government Works. 4 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 Case 3:25-cv-00103-ECC-ML Document 8 Filed 12/16/25 Page 128 of 201
Joyner v. County of Cayuga, Not Reported in Fed. Supp. (2020) © 2025 Thomson Reuters. No claim to original U.S. Government Works. 5 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 Case 3:25-cv-00103-ECC-ML Document 8 Filed 12/16/25 Page 129 of 201
Joyner v. County of Cayuga, Not Reported in Fed. Supp. (2020) © 2025 Thomson Reuters. No claim to original U.S. Government Works. 6 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. Case 3:25-cv-00103-ECC-ML Document 8 Filed 12/16/25 Page 130 of 201
Joyner v. County of Cayuga, Not Reported in Fed. Supp. (2020) © 2025 Thomson Reuters. No claim to original U.S. Government Works. 7 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 Case 3:25-cv-00103-ECC-ML Document 8 Filed 12/16/25 Page 131 of 201
Joyner v. County of Cayuga, Not Reported in Fed. Supp. (2020) © 2025 Thomson Reuters. No claim to original U.S. Government Works. 8 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 Case 3:25-cv-00103-ECC-ML Document 8 Filed 12/16/25 Page 132 of 201
Joyner v. County of Cayuga, Not Reported in Fed. Supp. (2020) © 2025 Thomson Reuters. No claim to original U.S. Government Works. 9 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 Case 3:25-cv-00103-ECC-ML Document 8 Filed 12/16/25 Page 133 of 201
Joyner v. County of Cayuga, Not Reported in Fed. Supp. (2020) © 2025 Thomson Reuters. No claim to original U.S. Government Works. 10 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. Case 3:25-cv-00103-ECC-ML Document 8 Filed 12/16/25 Page 134 of 201
Joyner v. County of Cayuga, Not Reported in Fed. Supp. (2020) © 2025 Thomson Reuters. No claim to original U.S. Government Works. 11 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 Case 3:25-cv-00103-ECC-ML Document 8 Filed 12/16/25 Page 135 of 201
Joyner v. County of Cayuga, Not Reported in Fed. Supp. (2020) © 2025 Thomson Reuters. No claim to original U.S. Government Works. 12 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. 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 136 of 201
Moye v. City of New York, Not Reported in F.Supp.2d (2012) 2012 WL 2569085 © 2025 Thomson Reuters. No claim to original U.S. Government Works. 1 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) Case 3:25-cv-00103-ECC-ML Document 8 Filed 12/16/25 Page 137 of 201
Moye v. City of New York, Not Reported in F.Supp.2d (2012) 2012 WL 2569085 © 2025 Thomson Reuters. No claim to original U.S. Government Works. 2 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 Case 3:25-cv-00103-ECC-ML Document 8 Filed 12/16/25 Page 138 of 201
Moye v. City of New York, Not Reported in F.Supp.2d (2012) 2012 WL 2569085 © 2025 Thomson Reuters. No claim to original U.S. Government Works. 3 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 Case 3:25-cv-00103-ECC-ML Document 8 Filed 12/16/25 Page 139 of 201
Moye v. City of New York, Not Reported in F.Supp.2d (2012) 2012 WL 2569085 © 2025 Thomson Reuters. No claim to original U.S. Government Works. 4 “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 Case 3:25-cv-00103-ECC-ML Document 8 Filed 12/16/25 Page 140 of 201
Moye v. City of New York, Not Reported in F.Supp.2d (2012) 2012 WL 2569085 © 2025 Thomson Reuters. No claim to original U.S. Government Works. 5 565, 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 Case 3:25-cv-00103-ECC-ML Document 8 Filed 12/16/25 Page 141 of 201
Moye v. City of New York, Not Reported in F.Supp.2d (2012) 2012 WL 2569085 © 2025 Thomson Reuters. No claim to original U.S. Government Works. 6 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”). Case 3:25-cv-00103-ECC-ML Document 8 Filed 12/16/25 Page 142 of 201
Moye v. City of New York, Not Reported in F.Supp.2d (2012) 2012 WL 2569085 © 2025 Thomson Reuters. No claim to original U.S. Government Works. 7 *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 Case 3:25-cv-00103-ECC-ML Document 8 Filed 12/16/25 Page 143 of 201
Moye v. City of New York, Not Reported in F.Supp.2d (2012) 2012 WL 2569085 © 2025 Thomson Reuters. No claim to original U.S. Government Works. 8 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). 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 144 of 201
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 Case 3:25-cv-00103-ECC-ML Document 8 Filed 12/16/25 Page 145 of 201
Rich v. New York, Not Reported in Fed. Supp. (2022) © 2025 Thomson Reuters. No claim to original U.S. Government Works. 2 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. Case 3:25-cv-00103-ECC-ML Document 8 Filed 12/16/25 Page 146 of 201
Rich v. New York, Not Reported in Fed. Supp. (2022) © 2025 Thomson Reuters. No claim to original U.S. Government Works. 3 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 Case 3:25-cv-00103-ECC-ML Document 8 Filed 12/16/25 Page 147 of 201
Rich v. New York, Not Reported in Fed. Supp. (2022) © 2025 Thomson Reuters. No claim to original U.S. Government Works. 4 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. Case 3:25-cv-00103-ECC-ML Document 8 Filed 12/16/25 Page 148 of 201
Rich v. New York, Not Reported in Fed. Supp. (2022) © 2025 Thomson Reuters. No claim to original U.S. Government Works. 5 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, Case 3:25-cv-00103-ECC-ML Document 8 Filed 12/16/25 Page 149 of 201
Rich v. New York, Not Reported in Fed. Supp. (2022) © 2025 Thomson Reuters. No claim to original U.S. Government Works. 6 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 Case 3:25-cv-00103-ECC-ML Document 8 Filed 12/16/25 Page 150 of 201
Rich v. New York, Not Reported in Fed. Supp. (2022) © 2025 Thomson Reuters. No claim to original U.S. Government Works. 7 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 Case 3:25-cv-00103-ECC-ML Document 8 Filed 12/16/25 Page 151 of 201
Rich v. New York, Not Reported in Fed. Supp. (2022) © 2025 Thomson Reuters. No claim to original U.S. Government Works. 8 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 Case 3:25-cv-00103-ECC-ML Document 8 Filed 12/16/25 Page 152 of 201
Rich v. New York, Not Reported in Fed. Supp. (2022) © 2025 Thomson Reuters. No claim to original U.S. Government Works. 9 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 Case 3:25-cv-00103-ECC-ML Document 8 Filed 12/16/25 Page 153 of 201
Rich v. New York, Not Reported in Fed. Supp. (2022) © 2025 Thomson Reuters. No claim to original U.S. Government Works. 10 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. Case 3:25-cv-00103-ECC-ML Document 8 Filed 12/16/25 Page 154 of 201
Rich v. New York, Not Reported in Fed. Supp. (2022) © 2025 Thomson Reuters. No claim to original U.S. Government Works. 11 *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. Case 3:25-cv-00103-ECC-ML Document 8 Filed 12/16/25 Page 155 of 201
Rich v. New York, Not Reported in Fed. Supp. (2022) © 2025 Thomson Reuters. No claim to original U.S. Government Works. 12 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. 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 156 of 201
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. Case 3:25-cv-00103-ECC-ML Document 8 Filed 12/16/25 Page 157 of 201
Tsinberg v. City of New York, Not Reported in Fed. Supp. (2021) © 2025 Thomson Reuters. No claim to original U.S. Government Works. 2 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 Case 3:25-cv-00103-ECC-ML Document 8 Filed 12/16/25 Page 158 of 201
Tsinberg v. City of New York, Not Reported in Fed. Supp. (2021) © 2025 Thomson Reuters. No claim to original U.S. Government Works. 3 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. Case 3:25-cv-00103-ECC-ML Document 8 Filed 12/16/25 Page 159 of 201
Tsinberg v. City of New York, Not Reported in Fed. Supp. (2021) © 2025 Thomson Reuters. No claim to original U.S. Government Works. 4 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. Case 3:25-cv-00103-ECC-ML Document 8 Filed 12/16/25 Page 160 of 201
Tsinberg v. City of New York, Not Reported in Fed. Supp. (2021) © 2025 Thomson Reuters. No claim to original U.S. Government Works. 5 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)). Case 3:25-cv-00103-ECC-ML Document 8 Filed 12/16/25 Page 161 of 201
Tsinberg v. City of New York, Not Reported in Fed. Supp. (2021) © 2025 Thomson Reuters. No claim to original U.S. Government Works. 6 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 Case 3:25-cv-00103-ECC-ML Document 8 Filed 12/16/25 Page 162 of 201
Tsinberg v. City of New York, Not Reported in Fed. Supp. (2021) © 2025 Thomson Reuters. No claim to original U.S. Government Works. 7 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 Case 3:25-cv-00103-ECC-ML Document 8 Filed 12/16/25 Page 163 of 201
Tsinberg v. City of New York, Not Reported in Fed. Supp. (2021) © 2025 Thomson Reuters. No claim to original U.S. Government Works. 8 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 Case 3:25-cv-00103-ECC-ML Document 8 Filed 12/16/25 Page 164 of 201
Tsinberg v. City of New York, Not Reported in Fed. Supp. (2021) © 2025 Thomson Reuters. No claim to original U.S. Government Works. 9 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 Case 3:25-cv-00103-ECC-ML Document 8 Filed 12/16/25 Page 165 of 201
Tsinberg v. City of New York, Not Reported in Fed. Supp. (2021) © 2025 Thomson Reuters. No claim to original U.S. Government Works. 10 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 Case 3:25-cv-00103-ECC-ML Document 8 Filed 12/16/25 Page 166 of 201
Tsinberg v. City of New York, Not Reported in Fed. Supp. (2021) © 2025 Thomson Reuters. No claim to original U.S. Government Works. 11 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. Case 3:25-cv-00103-ECC-ML Document 8 Filed 12/16/25 Page 167 of 201
Tsinberg v. City of New York, Not Reported in Fed. Supp. (2021) © 2025 Thomson Reuters. No claim to original U.S. Government Works. 12 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. 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 168 of 201
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) Case 3:25-cv-00103-ECC-ML Document 8 Filed 12/16/25 Page 169 of 201
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. 2 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 Case 3:25-cv-00103-ECC-ML Document 8 Filed 12/16/25 Page 170 of 201
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. 3 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 Case 3:25-cv-00103-ECC-ML Document 8 Filed 12/16/25 Page 171 of 201
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. 4 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). Case 3:25-cv-00103-ECC-ML Document 8 Filed 12/16/25 Page 172 of 201
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. 5 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. Case 3:25-cv-00103-ECC-ML Document 8 Filed 12/16/25 Page 173 of 201
White v. Syracuse Police Department, Not Reported in Fed. Supp. (2019) 2019 WL 981850 © 2025 Thomson Reuters. No claim to original U.S. Government Works. 1 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.”). Case 3:25-cv-00103-ECC-ML Document 8 Filed 12/16/25 Page 174 of 201
White v. Syracuse Police Department, Not Reported in Fed. Supp. (2019) 2019 WL 981850 © 2025 Thomson Reuters. No claim to original U.S. Government Works. 2 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 Case 3:25-cv-00103-ECC-ML Document 8 Filed 12/16/25 Page 175 of 201
White v. Syracuse Police Department, Not Reported in Fed. Supp. (2019) 2019 WL 981850 © 2025 Thomson Reuters. No claim to original U.S. Government Works. 3 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). Case 3:25-cv-00103-ECC-ML Document 8 Filed 12/16/25 Page 176 of 201
White v. Syracuse Police Department, Not Reported in Fed. Supp. (2019) 2019 WL 981850 © 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. Case 3:25-cv-00103-ECC-ML Document 8 Filed 12/16/25 Page 177 of 201
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 Case 3:25-cv-00103-ECC-ML Document 8 Filed 12/16/25 Page 178 of 201
White v. Syracuse Police Department, Not Reported in Fed. Supp. (2019) © 2025 Thomson Reuters. No claim to original U.S. Government Works. 2 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. Case 3:25-cv-00103-ECC-ML Document 8 Filed 12/16/25 Page 179 of 201
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 Case 3:25-cv-00103-ECC-ML Document 8 Filed 12/16/25 Page 180 of 201
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. 2 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 Case 3:25-cv-00103-ECC-ML Document 8 Filed 12/16/25 Page 181 of 201
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. 3 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 Case 3:25-cv-00103-ECC-ML Document 8 Filed 12/16/25 Page 182 of 201
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. 4 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 Case 3:25-cv-00103-ECC-ML Document 8 Filed 12/16/25 Page 183 of 201
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. 5 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.) Case 3:25-cv-00103-ECC-ML Document 8 Filed 12/16/25 Page 184 of 201
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. 6 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– Case 3:25-cv-00103-ECC-ML Document 8 Filed 12/16/25 Page 185 of 201
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. 7 800 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 Case 3:25-cv-00103-ECC-ML Document 8 Filed 12/16/25 Page 186 of 201
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. 8 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 Case 3:25-cv-00103-ECC-ML Document 8 Filed 12/16/25 Page 187 of 201
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. 9 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 Case 3:25-cv-00103-ECC-ML Document 8 Filed 12/16/25 Page 188 of 201
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. 10 (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. Case 3:25-cv-00103-ECC-ML Document 8 Filed 12/16/25 Page 189 of 201
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. 11 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. Case 3:25-cv-00103-ECC-ML Document 8 Filed 12/16/25 Page 190 of 201
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. 12 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. Case 3:25-cv-00103-ECC-ML Document 8 Filed 12/16/25 Page 191 of 201
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. 13 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. Case 3:25-cv-00103-ECC-ML Document 8 Filed 12/16/25 Page 192 of 201
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. 14 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. Case 3:25-cv-00103-ECC-ML Document 8 Filed 12/16/25 Page 193 of 201
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. 15 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 Case 3:25-cv-00103-ECC-ML Document 8 Filed 12/16/25 Page 194 of 201
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. 16 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 Case 3:25-cv-00103-ECC-ML Document 8 Filed 12/16/25 Page 195 of 201
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. 17 [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 Case 3:25-cv-00103-ECC-ML Document 8 Filed 12/16/25 Page 196 of 201
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. 18 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 Case 3:25-cv-00103-ECC-ML Document 8 Filed 12/16/25 Page 197 of 201
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. 19 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. Case 3:25-cv-00103-ECC-ML Document 8 Filed 12/16/25 Page 198 of 201
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. 20 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 Case 3:25-cv-00103-ECC-ML Document 8 Filed 12/16/25 Page 199 of 201
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. 21 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 Case 3:25-cv-00103-ECC-ML Document 8 Filed 12/16/25 Page 200 of 201
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. 22 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.) 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 201 of 201
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